The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Free Speech Rights, Parental Rights, and Children with Gender Dysphoria

An interesting Arizona appellate decision rejecting a court's assignment of a treating therapist, and rejecting a gag order that limited parents' discussions with the child.


From Paul E. v. Courtney F. (Ariz. Ct. App. April 3, 2018):

Paul E. ("Father") and Courtney F. ("Mother") married in 2004 and thereafter had three children together, including L., born in 2007. Father and Mother divorced in 2010. The decree of dissolution gave the parties joint legal custody of the children, with final legal decision-making authority awarded to Father with respect to L.'s and one of the other children's education, medical care, and dental care. Mother was awarded final legal decision-making authority with respect to the remaining child's education, medical care, and dental care. The parties were awarded equal parenting time with respect to all three children.

In February 2013, Mother permitted L., who was born male, to wear a skirt to school. She also sent a "Princess Boy" book for L.'s teacher to read to the class. Mother consulted with others (but no professionals) and notified L.'s school beforehand, but she failed to inform Father until after L. arrived at school.

According to Mother, L. had long demonstrated a preference for stereotypically "female" items and would wear female clothing at home; Father reported no previous knowledge of L. wearing female clothing, and apparently did not observe any distinctive gender pattern in L.'s preferences. Soon after L. wore the skirt to school, Father made arrangements for L. to begin therapy with counselor Diana Vigil, who continued in that role throughout this case.

According to Father and Vigil, in 2013 the parents agreed, consistent with Vigil's recommendation, to limit L.'s access to female-oriented items; Mother disputed that the parties ever reached a firm agreement. In late 2013, Father filed a petition under A.R.S. § 25–411(A) to modify parenting time and legal decision-making with respect to all three children. Father alleged, as relevant to this appeal, that Mother, through various acts, was pushing a female gender identification on L. despite Vigil's failure to diagnose L. with gender dysphoria, defined in one source used at trial as "[p]sychological distress due to the incongruence between one's body and gender identity," with gender identity meaning "[a] person's internal sense of being male, female, or something else." Father requested, [among other things], that he be made L.'s primary residential parent and be awarded sole legal decision-making. Father further requested that the court immediately limit Mother's parenting time through temporary orders and injunctions.

On December 13, 2013, consistent with Father's requests, the court entered the following temporary orders:

  • Until further Court order, Mother shall not dress [L.] in female clothing, shall not purchase female or "girl" clothing for [L.], shall not to [sic] permit [L.] to dress in female clothing (including, but not limited to underwear, socks, shirts, dresses, skirts, etc.), shall not purchase female oriented toys or other items for [L.], shall not refer to [L.] in his presence or in the presence of any of the other children as "her" or "she," shall not refer to [L.] as a "girl" or by other female designation, and shall not encourage any of the parties' other children to do so, shall not to [sic] encourage or direct third parties to refer to [L.] as "her," as "she[,]" as a "girl," or as other female designation, or to treat him as such, and shall not to [sic] take any other actions that are inconsistent with the spirit of these orders.
  • Until further Court order, Mother shall remove from her home any female or "girl" clothing of or for [L.] and any female oriented toys or other items of or for [L.] Mother may store such items elsewhere for later use in the event the Court later modifies or vacates these orders.
  • Until further Court order, Mother also shall direct the parties' children not to refer to [L.] as "her," as "she," as a "girl" or as other female designation, or if Mother hears or becomes aware of any of those children doing so [sic].
  • Until further Court order, Mother shall not refer to [L.] as "gender variant" or use such term or any related terms in [L.]'s presence or in the presence of the parties' other children. Mother further shall refrain from any discussion of gender related issues with [L.], with any of the parties' other children or in [L.]'s or any of the parties' other children's presence.
  • Mother shall not provide [L.] or any of the parties' other children with any materials addressing gender preference.
  • Mother shall not take any actions to frustrate or defy the spirit of any of the foregoing orders.

Vigil recommended that L. be assessed by a psychiatrist. In 2014, L. was evaluated by a series of professionals—a psychologist in July 2014, a physician in September 2014, and a psychotherapist in December 2014—each of whom diagnosed L. with gender dysphoria. Later, Vigil also diagnosed L. with gender dysphoria.

The temporary orders, however, remained in place. And Father, to whom the orders did not apply, did not afford L. access to "female" items during his parenting time. According to Father, he was never unwilling to provide L. the opportunity to engage in "gender exploration" but he and Mother believed that the temporary orders applied to both parents. Father reported that Mother was repeatedly noncompliant with the orders; Mother maintained the opposite.

In early 2015, L. made statements about dying, and either threatened or engaged in self-harm. Mother did not promptly notify Father when she took L. to the hospital in response to that behavior. Also in early 2015, Mother reneged on her promise to Father to take L. and another of the parties' children to a sacramental religious ceremony at Father's church.

In mid-2015, Vigil told the parties, and Father agreed based on a log he kept of L.'s statements and behaviors, that L. had become more comfortable with L.'s natal gender. Mother apparently informed L. of Vigil's conclusion, which caused L. to distrust Vigil. And, according to Father, Mother then significantly increased her violations of the temporary orders, and L. increasingly engaged in feminine behaviors. L. also assigned blame to Father for the temporary orders.

By stipulated order, the court appointed Dr. Paulette Selmi, a psychologist, to perform a custody evaluation. Dr. Selmi opined that the manner in which Mother responded to L.'s desire to wear a skirt to school did not take into account the need to protect L. Dr. Selmi further determined that Mother exposed L. to inappropriate information regarding sex reassignment, and failed to comply with the parties' 2013 agreement and the court's temporary orders. Dr. Selmi opined that Mother's conduct demonstrated a lack of foresight.

Dr. Selmi conceded that the temporary orders had harmed L., but she concluded that a "social transition" was not in L.'s best interests because of L.'s young age, and "[i]t is best to take a slower approach to the situation." Dr. Selmi recommended that the temporary orders "be lifted at this time but not entirely," by remaining in place at Mother's home for at least six months to a year and being lifted entirely at Vigil's office and in Father's home for six months to a year. Dr. Selmi recommended that only Vigil discuss the change with L., "because [the parents] do not work well enough together to do this."

Further, finding that Mother has "a proven track record … of talking to [L.] about very inappropriate things i.e. hormones, sex change operations and the like," Dr. Selmi recommend that the court enter a "'gag order' prohibiting Mother [and potentially Father as well] from discussing anything with [L.] related to this topic." Dr. Selmi opined that L. "must" continue therapy with Vigil, preferably on a "safe-haven" basis to restoreand preserve L.'s trust in Vigil, and further stated that "there also needs to be a physician gender specialist who will follow [L.] along the way." …

[After a custody trial, the court] found that both Mother and Father were capable parents, but determined that all three children's best interests were served by awarding Father sole legal decision-making with an obligation to consult in good faith with Mother. The court then held that despite Father's sole authority, the circumstances empowered it to limit that authority under A.R.S. § 25-410(A). The court held that "[L.]'s gender dysphoria diagnosis and the parents' response to it has already caused [L.] emotional harm," and ["t]he complexity of [L.]'s situation, the dynamics of the parties' relationship and the potential for harm if it is not managed correctly lead the Court to a conclusion that the child's physical health would be endangered and emotional development impaired if the Court did not establish some guidelines for the parents in addressing [L.]'s situation.["]

The court further … ordered[, among other things, that]:

  • Diana Vigil will continue as [L.]'s therapist ….
  • The [gag order] is lifted as it relates to gender exploration by [L.] in Diana Vigil's office, Father's home and Mother's home. In all other places, it remains in effect. Neither parent shall discuss the lifting of [the earlier] order with [L.], or permit gender exploration in their home until Diana Vigil discloses to [L.] that the order has been lifted.
  • Although [L.] will be free to explore in each parent's house, neither parent shall discuss gender identification issues with [L.] The parties should utilize a standard response as suggested by Dr. Selmi if [L.] asks to talk about gender identification issues, deferring the question or discussion to Diana Vigil. No person other than the gender expert (and his or her designee) and Diana Vigil shall discuss gender identification/exploration with [L.] The Court is open to allowing the parents to discuss gender identification issues in the future should such an approach be suggested by the gender expert.
  • Neither parent may, directly or indirectly, promote or discourage a specific view of gender identification for [L.] …

Father appealed, and the court reversed the order in part. (Note that mother did not appeal the award of sole decision-making to father.) First, the court held that Arizona courts generally can only select a decisionmaking parent, and not order a parent to make particular decisions:

Legal decision-making is "the legal right and responsibility to make all nonemergency legal decisions for a child including those regarding education, health care, religious training and personal care decisions." The court must determine legal decision-making, whether initially or on a motion for modification, based on "the best interests of the child." … But though "[c]ourts may do many things in the best interests of children, … they cannot advance such interests by exercising jurisdiction that they lack. Every power that the superior court exercises … must find its support in the supporting statutory framework." …

Title 25 of the Arizona Revised Statutes creates a framework for legal decision-making under which "[t]he court's statutorily prescribed role is not to make decisions in place of parents, but to decide which fit parent or parents shall make such decisions." [Footnote: Fit parents are those who (like both parents in this case) adequately care for their children.] Accordingly, though

[a] court faced with uncooperative, recalcitrant parents might reasonably believe that a child's best interests would be served by an order that effectively resolves a disputed issue[,] … in a family-law case, the court does not have plenary authority to make decisions in place of the parents when it deems them to be in a child's best interests. Rather, the court must be guided by the best interests of a child in assigning legal-decision-making authority.

The reservation of decision-making to fit parents, rather than the judiciary, accommodates "the fundamental right of parents to make decisions concerning the care, custody, and control of their children" under the Fourteenth Amendment. Of course, in choosing which fit parent or parents shall make the decisions, the court should consider each parent's proposed decisions and assess which parent's plans would serve the child's best interests. But the court generally has no say in the actual decisions of the chosen parent or parents. Even when an allocation of legal decision-making ultimately proves contrary to the child's best interests, the court may typically do no more than reallocate the authority between the parents.

There is one narrow exception, set forth in § 25-410(A), that permits the court, on motion and after a hearing, to limit a sole decision-maker's authority …:

Except as otherwise agreed by the parties in writing …, the parent designated as sole legal decision-maker may determine the child's upbringing, including the child's education, care, health care and religious training, unless, on motion by the other parent, the court, after a hearing, finds that in the absence of a specific limitation of the parent designated as the sole legal decision-maker's authority, the child's physical health would be endangered or the child's emotional development would be significantly impaired.

… [This] statute requires more than merely a best-interests analysis: it authorizes judicial limitation of a sole decision-maker's authority only when "the child's physical health would be endangered or the child's emotional development would be significantly impaired." The editors' comment to the uniform act underlying the statute makes clear that the heightened standard will be satisfied in only the most extreme of circumstances, and does not provide free license for the court to substitute its judgment for that of the decision-maker parent:

[I]n the absence of parental agreement, the court should not intervene solely because a choice made by the custodial parent is thought by the noncustodial parent (or by the judge) to be contrary to the child's best interest. To justify such an intervention, the judge must find that the custodial parent's decision would "endanger the child's physical health or significantly impair his emotional development"—a standard patently more onerous than the "best interest" test. The standard would leave to the custodial parent such decisions as whether the child should go to private or public school, whether the child should have music lessons, what church the child should attend. The court could intervene in the decision of grave behavioral or social problems such as refusal by a custodian to provide medical care for a sick child.

Even if § 25-410(A) applied, it nowhere authorizes the court to appoint a treating professional for the child. The statute provides that the court may impose a "specific limitation of the … sole legal decision-maker's authority." An order prohibiting the decision-maker from withholding therapeutic care would be a limitation on decision-making authority. But an order requiring care by a specific provider is more than a limitation—it is a directive….

Here, the superior court erred as a matter of law by relying on § 25-410(A) to set "guidelines" for Father's exercise of sole legal decision-making. As an initial matter, the procedural prerequisites for § 25-410(A) were not present: the court was faced with a petition to modify legal decision-making, not a motion to limit sole legal decision-making. And § 25-410(A)'s substantive bar was not satisfied.

This is not a case in which the parent awarded sole legal decision-making refused to secure necessary treatment for the child. In fact, long before the court's involvement, Father voluntarily secured therapy for L. and the therapy continued throughout the case, apparently to L.'s benefit. This is a case in which the parents agree that the child requires therapeutic intervention, but disagree about which therapeutic approach would be most beneficial. The court's imposition of "guidelines" to avoid "the potential for harm" posed by Father's exercise of sole legal decision-making reflects its legitimate concern that Father's view of L.'s situation may lead him to make less-than-ideal choices regarding L.'s care.

The court made well-supported findings that Father "has been somewhat less willing to actively engage with [L.] on the gender identification issue," that his creation of the behavior-tracking log and his view that L. might be "in remission" suggest that "he may not be as open to allow exploration as the experts … believe is appropriate," and that both his as well as Mother's "response[s] to [L.'s gender dysphoria] has already caused [L.] emotional harm." But though the court was entitled to weigh such reasonable concerns when deciding how to allocate legal decision-making, it had no authority to ameliorate the concerns by managing Father's sole decision-making….

And the court also held that the gag order, even as modified, violates the parents' First Amendment rights and parenting rights:

In addition to directing L.'s therapeutic care, the court imposed a number of limitations on Mother and Father's interactions with L.: the court prohibited them from speaking with L. about gender identification, and circumscribed their ability to provide L. with clothing, toys, and other items….

The court may "restrict" parenting time only if "it finds that the parenting time would endanger seriously the child's physical, mental, moral or emotional health."… A.R.S. § 25-411(J). But the statute is not an invitation for the court to interfere with constitutional rights. The statute cannot be read to give the court broad license to infringe on a parent's right to care for his or her child, or to infringe on the parent's or the child's free speech, see Nash v. Nash (Ariz. App. 2013) (parenting-time restriction that constitutes prior restraint on speech valid only under strict scrutiny test); see also Goodman v. Forsen (Ariz. App. 2016)….

Here, even assuming that the court's findings were sufficient to support application of § 25-411(J), the parenting-time limitations that the court imposed far exceeded the statutory authority. The limitations constituted severe micromanagement of Mother and Father's parenting and significantly restrained both the parties' and L.'s speech….

For more on the First Amendment and child custody cases, see my Parent-Child Speech and Child Custody Speech Restrictions article.