Jennifer Ann Greyson appeals a superior court order that grants her the majority of parenting time while awarding Jeremy Michael Gish sole legal decision-making authority for their child. Greyson contends that the parenting order lacks statutory authorization and does not serve the child's best interests. She argues that the 2021 Parenting Order and a subsequent order appointing a court-ordered behavioral interventionist (COBI) improperly delegated the court's authority to behavioral therapists and violated A.R.S. 25-411 by modifying the parenting order. Additionally, she claims the court erred by requiring her to cover the costs for the therapeutic interventionist and COBI, and requests special action jurisdiction over a related contempt finding.
The court affirms that it is permissible to grant one parent most parenting time while the other has sole decision-making authority if it serves the child's best interests. However, it rules that the court cannot delegate its authority regarding the child's best interests or parenting time adjustments to behavioral professionals. The court finds it was incorrect not to assess the parents' ability to pay for these professionals. Consequently, it vacates parts of the 2021 Parenting Order and the COBI appointment, remanding the case for further proceedings. The court declines to exercise special action jurisdiction over the contempt finding.
The background reveals a contentious relationship between the parents, marked by allegations of misconduct and a history of litigation since Gish filed for divorce in 2017, with a dissolution decree issued in early 2018 that initially established joint legal decision-making and an equal parenting schedule.
Seven months after the initial parenting order, Mother filed a petition to modify legal decision-making and parenting time, citing concerns for Griffin's well-being due to alleged past abuse by Father. Mother claimed Griffin was diagnosed with PTSD and had expressed a strong aversion to visiting Father, stating he would rather harm himself than go to Father's house. Evidence presented at the hearing included a hospital discharge report where Griffin described abusive behavior from Father, including being shown distressing images and humiliation. Father acknowledged some disciplinary actions, including spanking.
In August 2019, the court issued a new parenting order, recognizing the strained relationship between the parents and their poor co-parenting skills. The court noted Mother's history of unreasonable claims and the possibility that Griffin's reactions to Father’s discipline could be influenced by his autism, as well as potential coaching by Mother. Ultimately, the court found it was in Griffin's best interests to maintain joint legal decision-making, with Mother having the final say, and awarded her the majority of parenting time while granting Father supervised visits.
By December 2019, the Therapist Investigator (TI) reported that Griffin had begun unsupervised visits with Father, despite expressing he was not ready for such arrangements. The TI raised concerns about Mother's influence over Griffin's feelings toward Father and noted instances where Mother canceled therapy sessions, suggesting she only facilitated Father’s relationship when it suited her. The TI recommended both parents work toward equal, unsupervised parenting time and that Griffin continue therapy, expressing serious concerns about Mother's potential manipulation. The court adopted the TI's recommendations without a hearing on the matter.
Griffin reported to the Therapeutic Interventionist (TI) that he felt unsafe with his father and refused contact, citing pressure from Father to agree to unsupervised parenting time and being forced into manual labor at Father’s motorcycle shop. Griffin also indicated that Father neglected to ensure he took his mental health medication. The TI expressed concerns about Father's dishonesty and irresponsibility and noted that progress in the case was minimal. In March 2020, Father petitioned to modify parenting time and legal decision-making, alleging Mother influenced Griffin against him and violated the 2019 Parenting Order by not participating in co-parenting therapy and transferring Griffin’s therapy without his input. Father sought sole legal decision-making and primary residential custody.
The TI requested to be released from her appointment due to unpaid fees, but the court denied this request. In her August 2020 report, the TI raised concerns about Father’s parenting ability after he appeared under the influence and tested positive for marijuana, while also noting that Mother influenced Griffin's negative views of Father. The TI recommended supervised visitation for Father until Griffin felt safe and suggested sanctions against Mother for interfering with therapy and visitation. In September 2020, the TI reported continued difficulties in arranging supervised visitation.
While awaiting a ruling on his modification petition, Father petitioned the court for contempt against Mother for violating the 2019 Parenting Order and cutting off his contact with Griffin. An evidentiary hearing was held in April 2021, during which the court recognized the case's contentious nature and acknowledged concerns about both parties' credibility. Despite the ongoing issues, the court found modification warranted due to Mother's unilateral actions and disregard for the TI’s recommendations, noting no improvement in the parties' situation since the 2019 Parenting Order.
The court determined that the parents have significant cooperation issues in legal decision-making, leading to reservations about awarding sole or final decision-making authority to either parent. Although Mother misused her final-say authority, Father did not demonstrate consistent capability for appropriate decision-making concerning their child, Griffin. Consequently, the court awarded Father sole legal decision-making authority.
For parenting time, the court established that Griffin would reside primarily with Mother, with Father granted supervised parenting time as directed by a Therapeutic Interventionist (TI), who would assess the appropriateness of unsupervised visits and work towards equal parenting time. Both parents were ordered to share the TI’s fees, with Mother required to pay her outstanding balance. The court specified that if the TI withdrew from the case, Father could select a new interventionist, with costs shared. Additionally, Mother was prohibited from interfering with Griffin's therapy or Father’s parenting time, leading to a finding of contempt against her and an award of $5,000 in attorney’s fees to Father.
While Mother's appeal was pending, Father requested the appointment of a Coordinator of Best Interests (COBI) due to ongoing interference with his parenting time. The court granted this request, confirming both parents' fitness to parent and asserting that a COBI would assist in fulfilling the 2021 Parenting Order's objectives. Each parent was again ordered to share the COBI fees, and Mother amended her appeal to include this order.
The court underscored its obligation to assess appellate jurisdiction, emphasizing that it is defined by legislative parameters and procedural rules.
Jurisdiction over parenting time issues within the 2021 Parenting Order is established under A.R.S. 12-2101(A)(2), but appellate jurisdiction over the contempt ruling—specifically the $5000 attorney’s fee sanction against Mother for violating the 2019 Parenting Order—is lacking, as civil contempt rulings are generally non-appealable in Arizona. Mother acknowledges this but seeks special action jurisdiction to reverse the fee if her challenge is successful. While certain portions of the 2021 Parenting Order are vacated, this is unrelated to the contempt finding; thus, the contempt ruling remains unreviewed.
Mother's challenge regarding the COBI (Choice of Behavioral Intervention) order raises jurisdictional issues, centered on whether the COBI order enforced or modified the 2021 Parenting Order. The superior court's jurisdiction to issue the COBI order and the appellate court's ability to review it depend on this classification. Typically, filing a notice of appeal restricts the trial court's jurisdiction, but exceptions exist, allowing the court to undertake necessary actions to enforce its prior judgments or address modification petitions under A.R.S. 25-411(A).
The modification statute permits a petition for changes to parenting orders one year post-judgment or sooner if a child's safety is at stake, requiring new evidence and a demonstration that modifications serve the child's best interests. In this case, Father contends the COBI order enforced the 2021 Parenting Order, while Mother claims it improperly modified it due to the differences between a TI (Therapeutic Intervention) and a COBI. The superior court's authority in such matters is grounded in statutory law, with enforcement actions governed by Rule 91.5 and modifications by Rule 91.3, necessitating compliance with the relevant statutes.
The court appointed the Father's chosen Child Order Best Interest (COBI) to assist with the parenting plan implementation as per A.R.S. 25-405(B). However, this statute is applicable only when legal decision-making authority or parenting time issues are pending. Since all such issues were resolved in the 2021 Parenting Order, which was under appeal by Mother before the COBI appointment, any modification to that order would violate A.R.S. 25-411(A), which prohibits motions to modify such decrees within one year unless there is a significant risk to the child's health. Father’s motion was filed less than three months post-order, without claims of endangerment, and the court did not make the required findings regarding the child's welfare.
If the COBI order was deemed to modify the 2021 Parenting Order, it would be voidable, allowing for appellate review. Alternatively, if it served as an enforcement order based on Father's claims of Mother's non-compliance, it could fall under contempt, which is generally not appealable. The court opted not to explore this further, deeming the 2021 order unenforceable and acknowledging similar issues with the COBI order, thereby accepting special action jurisdiction to review it.
Mother raised several arguments against the court's decisions, including the inappropriate granting of sole legal decision-making to one parent and sole parenting time to another, concerns about the arrangement's alignment with the child's best interests, the financial burdens placed on her, and the delegation of authority to Father and the COBI. The court will uphold factual findings unless clearly erroneous, but legal conclusions and statutory interpretations will be reviewed de novo, with the legal decision-making and parenting time awards assessed for abuse of discretion. Arizona law does permit awarding sole legal decision-making authority to one parent while granting most of the parenting time to the other.
Mother contends that Arizona domestic relations statutes do not permit a court to grant sole legal decision-making authority to one parent while allowing exclusive parenting time to the other. She references A.R.S. 25-403.01(D), which entitles a parent without legal decision-making authority to reasonable parenting time, arguing that this implies no legal provision exists for a parent to receive legal decision-making authority without parenting time. She invokes the negative-implication canon, suggesting that if one scenario is explicitly mentioned, others not mentioned are excluded.
However, the court emphasizes that the application of the negative-implication canon must be contextually appropriate. In this case, the statute does not enumerate combinations of legal decision-making and parenting time, but rather mandates that decisions be made based on the child's best interests. The court asserts that A.R.S. 25-403.01(D) does not preclude awarding sole legal decision-making authority to a parent with minimal parenting time if it serves the child's best interests.
The court also addresses Mother's claim that granting Father sole legal decision-making while denying him parenting time was not in the child Griffin's best interests. The court found that while Mother and Griffin share a good relationship, her negative influence has harmed his relationship with Father. The court concluded that improving this relationship is complex and will require ongoing therapy. Mother argues that the court's focus on therapy as a means to reunify Griffin with Father overlooked Griffin's feelings of safety and well-being.
The court rejected Mother's claims that it improperly mandated reunification or prioritized the father-son relationship over Griffin's safety, emphasizing that substantial parenting time with both parents is generally in a child's best interests as per A.R.S. 25-103(B)(1). It affirmed that Griffin's safety was not compromised, as he resides with Mother. The court's decision to implement a parenting plan aimed at fostering a healthy relationship between Father and Griffin was deemed not an abuse of discretion.
Mother's assertion that the strained relationship between Father and Griffin was a central rationale for the court's decision was also dismissed. The court relied on A.R.S. 25-403(A)(1), which considers various factors regarding the parent-child relationship, indicating that the strained relationship was only part of the reasoning, with other statutory factors also being significant in determining Griffin's best interests.
The court awarded Father sole legal decision-making authority, citing Mother's misuse of her previously granted authority and the lack of improvement in the family's situation. Despite reservations about awarding sole decision-making to either parent, the court concluded a change was necessary due to the parties' poor cooperation.
Mother contended that the court erred in not considering Griffin's wishes. However, the court determined Griffin, at 12 years old, was not of suitable age or maturity for his wishes to be considered, especially given his susceptibility to Mother's influence. This finding was upheld as not clearly erroneous.
Mother also claimed the court failed to accommodate Griffin's autism under the Americans with Disabilities Act. The court clarified that while autism does not automatically exclude a child's views from consideration, it did not abuse its discretion in disregarding Griffin's wishes since his autism was not the sole reason for that decision.
Lastly, the court was found to have erred in ordering Mother to pay half the cost of therapeutic interventions without establishing her ability to pay on record. According to Ariz. R. Fam. Law P. 95(a), the court must assess the parties' ability to finance ordered services. On remand, the court must determine both parties' financial capacities and allocate costs accordingly. Additionally, the court was noted to have improperly delegated its authority to the TI and Father.
In the 2021 Parenting Order, the court mandated that the Father continue supervised parenting time as directed by a therapeutic interventionist (TI) until the TI determines the child is ready for unsupervised time. The parties are to adhere to the TI's recommendations, aiming for a gradual increase in the Father's parenting time, ultimately returning to equal parenting once deemed appropriate. If the TI ceases to work with the family, the Father is to select a new TI, with costs shared equally by both parties.
The Mother contends that the court improperly delegated its authority over legal decision-making and parenting time, allowing the Father to control TI services that influence his parenting time. The court's order contravenes Rule 95, as it grants the Father exclusive rights to choose a new TI without input from the Mother, violating her due process rights. Additionally, requiring the Mother to contribute to the TI's fees without a finding of her ability to pay is also against Rule 95.
The court further erred by delegating its authority on parenting time decisions to behavioral professionals, as courts must independently decide what is in the child's best interest. The responsibility to determine when supervised parenting time can cease lies with the court, which must ensure due process by allowing both parents a chance to be heard. The court can establish milestones for parenting time adjustments; however, it must be the court, not a behavioral health professional, that confirms if these milestones have been met.
The 2021 Parenting Order and COBI order improperly transferred the court's authority regarding parenting time decisions to a behavioral professional, which is not permissible without an express agreement by the parties. Only the court is authorized to evaluate parenting time based on the child's best interests, as established in Ariz. R. Fam. Law P. 74 and A.R.S. 25-403(A). Additionally, post-order supervision must be conducted by a local social service agency, as mandated by A.R.S. 25-410(B), and neither the 2021 Parenting Order nor the COBI order adhered to this requirement. Both parties sought attorney’s fees on appeal under A.R.S. 25-324; however, the court declined to award fees, instead granting Mother her costs as the prevailing party upon compliance with Arizona Rule of Civil Appellate Procedure 21. The court vacated the COBI appointment and the portion of the Parenting Order that improperly delegated authority, remanding the case for further proceedings in line with this opinion.
