Gish v. Greyson

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Marriage of:

JEREMY MICHAEL GISH, Petitioner/Appellee,

v.

JENNIFER ANN GREYSON, Respondent/Appellant.

No. 1 CA-CV 21-0472 FC
FILED 6-28-2022

Appeal from the Superior Court in Maricopa County
No. FC2017-093448
The Honorable Andrew J. Russell, Judge
The Honorable Rodrick J. Coffey, Judge

AFFIRMED IN PART, VACATED IN PART, REMANDED

COUNSEL

Rowley Long & Simmons PLLC, Mesa
By Scott R. Rowley
Counsel for Petitioner/Appellee

Alexander R. Arpad, Phoenix
Counsel for Respondent/Appellant

OPINION

Presiding Judge Paul J. McMurdie delivered the Court’s opinion, in which
Vice Chief Judge David B. Gass and Judge Angela K. Paton joined.
 GISH v. GREYSON
Opinion of the Court

M c M U R D I E, Judge:

¶1 Jennifer Ann Greyson (“Mother”) appeals from the superior
court’s order awarding her nearly all parenting time but awarding Jeremy
Michael Gish (“Father”) sole legal decision-making authority over their
child. Mother argues that the parenting order is not authorized by statute
and is not in the child’s best interests. She also maintains that the 2021
Parenting Order and the later order appointing a court-ordered behavioral
interventionist (“COBI”) unlawfully delegated the court’s authority to the
behavioral therapists. And she claims that the COBI order improperly
modified the parenting order in violation of A.R.S. § 25-411. Finally, she
asserts that the court erred by requiring her to pay for the therapeutic
interventionist (“TI”) and the COBI, and requests that we accept special
action jurisdiction over a contempt finding.

¶2 We hold that the superior court is statutorily permitted to
award to one parent most of the parenting time and the other parent sole
legal decision-making if it determines it is in the child’s best interests. We
also hold that the court may not delegate its authority to assess a child’s
best interests or adjust parenting time to a behavioral professional,
including, but not limited to, a TI or a COBI, as its orders did here. The court
also erred here by not determining whether Mother and Father could pay
for those professionals. We, therefore, vacate the 2021 Parenting Order in
part, vacate the order appointing a COBI, and remand to the superior court
for further proceedings consistent with this opinion. We decline special
action jurisdiction over the court’s contempt finding.

FACTS AND PROCEDURAL BACKGROUND

¶3 Mother and Father are parents to Griffin,1 who has been
diagnosed with autism spectrum disorder. Their parenting relationship
over the years has been highly contentious, with various misconduct
allegations levied by each against the other. The court’s and the behavioral
professionals’ perception of those allegations has shifted over time, leading
to the 2021 rulings now at issue.

¶4 Father filed for divorce in 2017, and the court entered the
dissolution decree in early 2018. In the decree, the court found that Mother
had taken unreasonable positions throughout the litigation, refused to

1 To protect the child’s identity, we refer to him by a pseudonym.

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Opinion of the Court

allow Father to have parenting time, made unsubstantiated child abuse
allegations against Father, sought to rescind the parties’ Rule 69 agreement
without justification, filed multiple baseless pretrial motions, and requested
voluminous records from Father that she received but did not review. Still,
the court adopted the parties’ Rule 69 agreement, in which they agreed to
exercise joint legal decision-making with an equal parenting schedule. See
Gish v. Greyson, 1 CA-CV 18-0258 FC, 2020 WL 6852555 (Ariz. App., June 30,
2021).

¶5 Seven months later, Mother petitioned to modify legal
decision-making and parenting time. See A.R.S. § 25-411(A) (A petition may
be filed less than one year after entry of the parenting order if there is reason
to believe the child’s present environment may seriously endanger the
child’s health.). Mother alleged that Griffin had been diagnosed with
post-traumatic stress disorder (“PTSD”) and hospitalized twice for suicidal
ideations due to fear and trauma from Father’s abuse. She alleged that
Griffin stated he “would rather jump off a bridge than go to [Father’s]
house,” and he would rather die than see Father. At the hearing on the
petition, the court admitted a hospital discharge report in which Griffin
claimed that Father had shown him pictures of abused children and
mocked and humiliated him. Father admitted that he once spanked Griffin
and put him in the shower with his clothes on.

¶6 After considering the evidence, the court issued a post-decree
parenting order in August 2019 (“2019 Parenting Order”). The court
recognized that “[t]he parties have a very strained relationship” and “[t]hey
do not cooperate well at all in co-parenting the child.” The court also
considered Mother’s history of “taking unreasonable positions” and
“making unsubstantiated allegations.” It acknowledged that Griffin’s
autism might cause him to react differently to Father’s discipline than
children without autism and that Mother may have improperly influenced
him. The court noted that it had to make its best-interests findings “without
having a clear answer to [the] central question” of whether Griffin’s suicidal
ideations arose out of Father’s mistreatment, Mother’s influence, or a
combination of both.

¶7 The court weighed the best-interests factors under A.R.S.
§§ 25-403 and -403.01. Despite questioning the parents’ ability to engage in
cooperative decision-making, the court determined it was in Griffin’s best
interests that Mother and Father continue with joint legal decision-making,
with Mother having the final say on issues for which the parents could not
agree. As a result, the court awarded Mother most of the parenting time. It
granted Father supervised parenting time as directed by the TI until she

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determined Griffin was ready to have unsupervised time with Father. The
court ordered the parties to follow the TI’s recommendations to gradually
increase Father’s parenting time until she found it appropriate to return to
an equal parenting schedule.

¶8 The parties worked with the TI for several months, and in
December 2019, the TI submitted her report to the court. She stated that
Griffin had begun visiting Father unsupervised and staying overnight,
despite recently telling her that he was not ready for unsupervised visits.
The increase in Father’s parenting time coincided with Mother’s new
employment, leading the TI to believe that Mother may have had “much
more influence over [Griffin’s] opinions about parenting time with Father
than [Mother] originally let on.” The TI also noted that Father claimed
Mother had canceled “three or four” out of eight therapy sessions. This led
to the concern that Mother only supported Father’s relationship with
Griffin when it benefitted her.

¶9 The TI recommended that the parents continue to work
toward equal, unsupervised parenting time and that Griffin continue
individual and family therapy. But the TI expressed “grave concerns” that
Mother had undue influence over Griffin’s perception of Father. She
suggested the court consider sanctioning Mother if she were to restrict
Father’s parenting time or interfere with Griffin’s therapy. Without
conducting a hearing on the recommendations, the court adopted them.

¶10 Only two months later, the TI reported that Griffin no longer
felt safe with Father and refused all contact with him. Griffin informed the
TI that Father pressured him to agree to unsupervised parenting time. He
also claimed that Father forced him to perform manual labor in Father’s
motorcycle shop and mocked him when he could not move heavy
motorcycles. Griffin told the TI that Father did not make him take his
prescribed mental health medication. The TI reported that she was “at a loss
about how to move forward with this case.” She was concerned that
Father’s dishonesty, recklessness, and irresponsibility were ingrained, and
that Mother easily influenced Griffin. She expressed doubt about resolving
“the high conflict situation” considering “the minimal progress that [had]
been made.”

¶11 In March 2020, Father petitioned to modify parenting time
and legal decision-making under A.R.S. § 25-411(A) because Mother
refused to comply with the 2019 Parenting Order. Father alleged that
Mother had once again influenced Griffin, as Mother claimed that Griffin
no longer wanted parenting time with him. Father stated that the TI’s

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“grave concern” had been fully realized, and the issues the TI predicted
were now occurring. He claimed Mother stopped paying the TI despite
owing her $2500, leading the TI to end communication with the parties. He
contended that Mother refused to participate in co-parenting therapy and
began scheduling other therapy sessions only at her home. He also alleged
that Mother transferred Griffin’s therapy and medication management to a
provider to accommodate her and Griffin’s needs, telling Father he did “not
get a say as to where or when [Griffin’s] individual therapy takes place.”
He argued that Mother had willfully violated the 2019 Parenting Order and
requested that the court grant him sole legal decision-making and designate
him the primary residential parent.

¶12 The TI asked the court to release her from her appointment as
the parents now owed over $3000 for her services and because Mother
claimed the TI was “retraumatizing her.” The court declined to release the
TI. In her August 2020 report, the TI questioned Father’s ability to parent
without supervision after he appeared to be under the influence, refused a
hair follicle test, and tested positive for marijuana. She also had concerns
about Father’s honesty. She listed a series of lies Father had told her,
including his claim that Mother had failed to take Griffin to multiple
therapy sessions when it was the therapist that canceled or rescheduled.
But the TI also believed Mother strongly influenced Griffin’s negative
perception of Father. The TI recommended that Father’s parenting time be
supervised until Griffin felt safe in his care and urged the court to sanction
Mother if she interfered with Griffin’s therapy or refused to facilitate visits
between Father and Griffin. In September 2020, the TI reported that she had
continued trying to encourage supervised visitation “to no avail.”

¶13 Still awaiting the court’s ruling on his modification petition,
Father petitioned the court to find Mother in contempt for willfully
disobeying the 2019 Parenting Order, claiming that Mother’s refusal to
work with the TI had “completely sabotaged the entire process.” He alleged
that Mother prohibited him from having any parenting time or contact with
Griffin over the previous seven months. He also claimed that Mother
terminated Griffin’s therapy sessions unilaterally.

¶14 In April 2021, the court held an evidentiary hearing and ruled
on Father’s petitions (“2021 Parenting Order”), the first of the rulings at
issue on appeal. The court recognized “this case [as] one of the most
challenging and contentious matters” in family court, restated the factual
history, and reiterated its concerns with both parties’ credibility. The court
noted that “[a]lthough the parties [were] not in a better position than they
were in when the Court issued the [2019 Parenting] Order,” modification

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was now warranted because the parties abruptly began exercising equal
parenting time before Mother unilaterally cut off Father’s contact with
Griffin, disregarded the TI’s recommendations, and violated the 2019
Parenting Order.

¶15 The court found it “abundantly evident that the parties do not
cooperate well with each other in legal decision-making,” yet expressed
“serious reservations about awarding either parent sole legal
decision-making or final say legal decision-making.” The court found that
Mother had abused her final-say authority, but Father had “not
demonstrated that he can consistently make appropriate decisions” for
Griffin. The court ultimately felt “forced to choose between granting legal
decision-making authority to one of them despite the potential negative
ramifications of awarding either parent sole or final say legal
decision-making authority.” Having granted Mother final-say authority
previously, the court found she had “misused that authority” and would
“continue to do so if she [had] the ability to do so,” and “the family’s
situation did not improve when she had such authority.” As a result, the
court awarded Father sole legal decision-making authority.

¶16 As for parenting time, the court ordered first that “the child
shall reside with Mother at all times except for the times specifically
designated for Father’s parenting time.” Second, the court granted Father
supervised parenting time “as directed by [the TI]” until the TI determined
unsupervised parenting time was appropriate. It then directed the parties
to “follow the recommendations of [the TI]” to increase Father’s parenting
time as “therapeutically appropriate” until they reached equal parenting
time. Third, the court ordered each parent to pay half the TI’s fees and
emphasized that Mother must also pay the past fees she still owed. Fourth,
considering the TI’s previous request for release, the court ordered that if
the TI were unwilling to keep working with the parties, “Father shall select
a new therapeutic interventionist,” and the parties would each pay for half
the fees. Fifth, the court ordered Mother to not interfere with Griffin’s
therapy or Father’s parenting time and then found Mother in contempt for
willfully violating the 2019 Parenting Order and awarded Father $5000 in
attorney’s fees and costs. Mother appealed.

¶17 While Mother’s appeal was pending, Father moved to
appoint a COBI to replace the TI. Father alleged Mother continued
interfering with his parenting time and had not permitted a single visit
nearly three months after the court issued the 2021 Parenting Order. Citing
the order, Father argued that because the TI was no longer willing to work
with the parties, he could “select a new therapeutic interventionist” to help

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the family achieve the goal of “returning to an equal parenting time
schedule.”

¶18 The court granted the motion over Mother’s objection and
appointed a COBI. The ruling began by stating that “[t]he Court has entered
findings that both parties are fit to parent. Therefore, parental fitness is not
an identified or accepted impediment to implementation of the order.” The
court explained that the advice and guidance of a COBI would help the
court bring about the goals of the 2021 Parenting Order. The court
appointed the COBI Father requested and ordered each parent to pay half
the fees. Mother amended her notice of appeal to include the COBI order.

JURISDICTION

¶19 We have an independent obligation to determine whether we
have appellate jurisdiction and must dismiss those matters over which we
lack jurisdiction. Dabrowski v. Bartlett, 246 Ariz. 504, 511, ¶ 13 (App. 2019).
This court’s appellate jurisdiction “is defined, and limited, by the
Legislature.” Brumett v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 426, ¶ 4
(App. 2016). “Whether this court has appellate jurisdiction turns on
compliance with (1) the applicable statute on which appellate jurisdiction
is based and (2) any applicable procedural rules.” Yee v. Yee, 251 Ariz. 71,
74–75, ¶ 8 (App. 2021).

¶20 We have jurisdiction over the parenting time aspects of the
2021 Parenting Order under A.R.S. § 12-2101(A)(2). But we do not have
appellate jurisdiction over the contempt ruling in the 2021 Parenting Order
(awarding Father $5000 in attorney’s fees as a sanction for Mother’s willful
failure to abide by the 2019 Parenting Order). In re Marriage of Chapman, 251
Ariz. 40, 42, ¶ 8 (App. 2021) (“well-established rule in Arizona that civil
contempt adjudications are not appealable”). Mother acknowledges that
contempt orders are generally not appealable, but she requests we accept
special action jurisdiction and reverse the fee award if her challenge to the
order succeeds. Although we vacate certain portions of the 2021 Parenting
Order, see infra ¶¶ 42–50, we vacate for reasons unrelated to the court’s
contempt finding. Thus, we decline to review the court’s contempt finding
and the corresponding sanctions.

¶21 Mother’s challenge to the COBI order presents a jurisdictional
quandary because the parties dispute whether the COBI order enforced
(Father’s position) or modified (Mother’s position) the terms of the 2021
Parenting Order. And the scope of the superior court’s jurisdiction to enter
the order, and ultimately our appellate jurisdiction to review it, varies

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depending on whether the COBI order reflected enforcement or
modification.

¶22 Generally, filing a notice of appeal divests the trial court of
jurisdiction to proceed other than to issue orders to further the appeal and
address matters unrelated to the appeal. In re Flores and Martinez, 231 Ariz.
18, 21, ¶ 10 (App. 2012). But our supreme court acknowledged that the rule
divesting the trial court of jurisdiction upon filing a notice of appeal is not
absolute, and there are “many equally well established exceptions.” Cont’l
Cas. Co. v. Indus. Comm’n, 111 Ariz. 291, 294 (1974) (quoting Castillo v. Indus.
Comm’n, 21 Ariz. App. 465, 467 (1974)). As applied, the superior court did
not have jurisdiction to enter the COBI order unless it fit within an
exception to the general rule that Mother’s appeal divested that court of
jurisdiction.

¶23 One such exception is that the superior court retains
jurisdiction pending an appeal to take such action as might be necessary to
“enforce its previously entered judgment.” Henderson v. Henderson, 241
Ariz. 580, 589, ¶ 27 (App. 2017). Another circumstance where the superior
court retains jurisdiction even though an appeal is pending is resolving a
modification petition under A.R.S. § 25-411(A). The modification statute
authorizes petitioning for parenting modification one year after the
previous order or within a year if the child’s life or health is at risk. A
modification petition must be based on new evidence arising after the entry
of the parenting order and be in the child’s best interests. See Backstrand v.
Backstrand, 250 Ariz. 339, 343, ¶ 14 (App. 2020) (The burden is on the
petitioner to show the conditions and circumstances have changed after the
parenting order to justify a modification.).

¶24 In this case, the parties dispute whether the COBI order
modified the 2021 Parenting Order. After the court issued the 2021
Parenting Order, Father cited that order allowing him to choose the next TI
and moved the court to affirm his choice of a COBI. Father claims that the
COBI order enforced the previous order. Mother argues that the order
appointing a COBI improperly modified the 2021 Parenting Order, noting
the substantive differences between a TI and a COBI.

¶25 “Every power that the superior court exercises in a
dissolution proceeding must find its source in the supporting statutory
framework.” Fenn v. Fenn, 174 Ariz. 84, 87 (App. 1993). Once a judgment
about parenting has been entered, it may be enforced under Rule 91.5 and
A.R.S. § 25-414 or modified under Rule 91.3 and A.R.S. § 25-411.
Determining whether a parent has met or violated the requirements of a

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parenting order is an enforcement action under Rule 91.5. Changing the
parenting terms in a judgment requires the parties to comply with the
modification statute and Rule 91.3. Backstrand, 250 Ariz. at 343, ¶ 14.

¶26 The court appointed Father’s chosen COBI “[i]n accordance
with ARS Section 25-405(B) . . . to advise and assist with the
implementation of the court-ordered parenting plan.” But A.R.S.
§ 25-405(B) “applies only when an issue regarding legal decision-making
authority or parenting time is pending before the court.” Paul E. v. Courtney
F., 246 Ariz. 388, 397, ¶ 37 (2019). The court had resolved all such issues in
the 2021 Parenting Order, and Mother appealed that order before the
superior court ruled on Father’s request for the appointment of a COBI.

¶27 If the COBI order modified the 2021 Parenting Order, it
violated A.R.S. § 25-411(A) because “[a] person shall not make a motion to
modify a legal decision-making or parenting time decree earlier than one
year after its date, unless the court permits it to be made on the basis of
affidavits that there is reason to believe the child’s present environment
may seriously endanger” the child’s health. The 2021 Parenting Order was
dated April 30, 2021. Father filed his motion less than three months later
and did not assert that Griffin’s environment seriously endangered his
physical, mental, moral, or emotional health. And the court did not make a
§ 25-411 finding to that effect. See A.R.S. § 25-403(B) (“[T]he court shall
make specific findings on the record about all relevant factors and the
reasons for which the decision is in the best interests of the child.”). If the
COBI order violated A.R.S. § 25-411, it is a voidable order, and we would
have appellate jurisdiction to vacate it. A.R.S. § 12-2101(A)(2); see also State
v. Serrano, 234 Ariz. 491, 496, ¶ 15 (App. 2014) (A party may appeal from an
invalid order, and the court of appeals can “review and vacate such orders
on appeal.”).

¶28 If the COBI order was an enforcement order based on Father’s
assertion that Mother was not following the 2021 Parenting Order, it might
constitute a contempt finding and sanction. See A.R.S. § 25-414. Although
some enforcement orders are appealable as “special order[s] made after
final judgment,” A.R.S. § 12-2101(A)(2), contempt orders are not, meaning
we would lack appellate jurisdiction. See Chapman, 251 Ariz. at 42, ¶ 8.

¶29 We decline to wade further through this quagmire because
doing so is unnecessary for our resolution of the case. For the reasons stated
below, the 2021 Parenting Order was unenforceable, and the COBI order
suffers the same problems. Thus, without deciding the precise nature of the
COBI order, we accept special action jurisdiction to review it. A.R.S.

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§ 12-120.21(A)(4) (court of appeals has “[j]urisdiction to hear and determine
petitions for special actions brought pursuant to the rules of procedure for
special actions, without regard to its appellate jurisdiction”); Brionna J. v.
D.C.S., 247 Ariz. 346, 350, ¶ 13 (App. 2019).

DISCUSSION

¶30 Mother argues (1) a court may not grant sole legal
decision-making authority to one parent and sole parenting time to the
other, (2) if the domestic relation statutes authorize such an arrangement,
the court’s decision to do so here was not in the child’s best interests, (3) the
court erred by requiring Mother to pay for the TI and the COBI, (4) the court
erred by delegating its authority to Father and the TI, and (5) the attorney’s
fees contempt award should be vacated.

¶31 We will accept the court’s factual findings as true unless they
are clearly erroneous, but we review its conclusions of law de novo. Birnstihl
v. Birnstihl, 243 Ariz. 588, 590–91, ¶ 8 (App. 2018). We also review questions
of statutory interpretation de novo. Nicaise v. Sundaram, 245 Ariz. 566, 567,
¶ 6 (2019). We review an award of legal decision-making and parenting
time for an abuse of discretion. Oleson v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App.
2021); DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019).

A. Arizona Law Allows a Court to Award Sole Legal
Decision-Making Authority to One Parent and Most of the
Parenting Time to the Other.

¶32 Mother argues that our domestic relations statutes do not
authorize a court to grant sole legal decision-making authority to one
parent and exclusive parenting time to the other. To support her argument,
Mother cites A.R.S. § 25-403.01(D), which provides that a “parent who is
not granted sole or joint legal decision-making is entitled to reasonable
parenting time to ensure that the minor child has substantial, frequent,
meaningful and continuing contact with the parent,” unless parenting time
would endanger the child’s health. She argues that the legislature has thus
explicitly provided for an arrangement in which a parent receives no legal
decision-making authority yet is still entitled to parenting time, but the
statutes include no provision for the converse scenario—one where a parent
gets no parenting time but is entitled to legal decision-making authority.
And under the negative-implication canon, she argues, “a statute that
expressly authorizes one thing [should be] interpreted to exclude other
things not mentioned.” See Antonin Scalia & Brian A. Garner, Reading Law:

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The Interpretation of Legal Texts 107 (2012) (“The expression of one thing
implies the exclusion of others.”).

¶33 But the negative-implication canon must be applied
cautiously, depending heavily on context. Scalia & Garner, supra, at 107.
The doctrine can only be used correctly when the legislature’s specification
“can reasonably be thought to be an expression of all that shares in the grant
or prohibition involved.” Id.

¶34 In the context of the legal decision-making and parenting time
statute, it is inappropriate to apply the negative-implication canon to A.R.S.
§ 25-403.01(D). The statutory scheme does not provide a series of legal
decision-making and parenting time combinations from which a court must
choose. Cf., e.g., Powers v. Carpenter, 203 Ariz. 116, 118, ¶ 10 (2002) (Where
items are “expressly listed in series in a statute, we presume the legislature
intended to exclude items of the same class that are not listed.”). Instead,
the statutes make clear that “[t]he court shall determine legal
decision-making and parenting time . . . in accordance with the best
interests of the child.” A.R.S. §§ 25-403(A), -403.1(B). Section 25-403.01(D)
simply “ensure[s] that the minor child has substantial, frequent,
meaningful and continuing contact with [each] parent” if that contact aligns
with the child’s best interests. See Smith v. Smith, ___ Ariz. ___, ___,
¶¶ 14–15, 508 P.3d. 793, 796 (App. 2022). We do not interpret A.R.S.
§ 25-403.01(D) to implicitly prohibit a court from awarding sole legal
decision-making authority to a parent who receives little to no parenting
time. If such an arrangement is in the child’s best interests, a court is within
its discretion to order it.

B. The Court Did Not Abuse Its Discretion by Awarding Father No
Parenting Time While Granting Him Sole Legal Decision-Making
Authority.

¶35 Mother argues that it was not in Griffin’s best interests to
award Father no or supervised parenting time but to grant Father sole legal
decision-making authority. She suggests that the court “was so focused on
trying to reform the parents” that it “lost sight of [Griffin’s] best interest.”

¶36 When making its best-interests findings, the court noted that
Mother and Griffin have a good relationship, but Mother’s improper
influence over Griffin has strained his relationship with Father. The court
added that “[i]mproving that relationship will be very challenging and will
require[] consistent therapy for the child and the parents.” Mother describes
these findings as “[t]he core of the Family Court’s rationale” and argues

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that the court “essentially used the grant of sole legal decision-making to
force a reunification.” She also contends that the court prioritized “endless
and unlimited therapy to make [Griffin] accept spending time with Father
over [Griffin’s] feelings of safety and ability to thrive.”

¶37 We disagree with Mother’s conclusions that the court
improperly forced a reunification or prioritized the father-son relationship
over Griffin’s safety. Without evidence to the contrary, it is in a child’s best
interests to have “substantial, frequent, meaningful and continuing
parenting time with both parents.” A.R.S. § 25-103(B)(1). And the parenting
plan does not put Griffin’s safety at risk because Griffin continues to live
with Mother. The court did not abuse its discretion by implementing a
parenting plan to reestablish a healthy relationship between Father and
Griffin.

¶38 We also disagree with Mother’s argument that the court’s
findings about Father and Griffin’s strained relationship were the “core” of
the court’s rationale. These findings were made under A.R.S. § 25-403(A)(1),
which requires the court to consider “[t]he past, present and potential
future relationship between the parent and the child.” The isolated findings
provide only some of the court’s reasoning, as it considered other statutory
factors when determining Griffin’s best interests.

¶39 When it awarded Father sole legal decision-making authority,
the court provided its reasoning:

The Court previously granted Mother final say legal
decision-making authority and she misused that authority.
The Court has good reason to believe that she will continue to
do so if she has the ability to do so. And, the family’s situation
did not improve when she had such authority. Given all that
has happened in the past 20 months, the Court believes that a
change is necessary at this point.

The court highlighted the difficulty of the situation by reiterating that “the
parties do not cooperate well with each other in legal decision-making for
the child.” Yet, it had “serious reservations about awarding either parent
sole legal decision-making or final say legal decision-making.” It
recognized that its past orders, first granting joint legal decision-making
and then awarding Mother final-say authority, had not improved the
situation. Under these circumstances, the court did not abuse its discretion
by awarding Father sole legal decision-making authority.

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¶40 Mother argues that the court erred by refusing to consider
Griffin’s wishes. A court must consider the child’s wishes “[i]f the child is
of suitable age and maturity.” A.R.S. § 25-403(A)(4). The court found that
Griffin was “not old enough or mature enough for the Court to consider his
wishes.” Griffin was 12 years old, and the TI had repeatedly reported that
Griffin was unduly susceptible to Mother’s influence. The court’s finding
was not clearly erroneous, and we will accept it as true. See Birnstihl, 243
Ariz. at 590, ¶ 8. Once established that the child is not of suitable age and
maturity, it is not an abuse of discretion to disregard the child’s wishes. See
A.R.S. § 25-403(A)(4).

¶41 Mother also argues that the court failed to make reasonable
accommodations for Griffin under the Americans with Disabilities Act. She
contends that Griffin’s autism “is not a basis to refuse to listen to [him].” An
autism diagnosis is not a per se basis for excluding a child’s desires from
consideration. Because the court did not use Griffin’s autism in isolation to
justify disregarding the child’s wishes, it did not abuse its discretion.

C. The Court Erred by Ordering Mother to Pay Half the Cost of the
TI Without Putting Her Ability to Pay on the Record.

¶42 Mother claims she “simply cannot afford to finance Father’s
constant need for therapeutic interventions.” Rule 95(b) authorizes a court
to order “parties to engage in behavioral or mental health services,
including counseling and therapeutic interventions.” But when ordering
such services, the court “must determine on the record whether the parties
have the ability to pay for services as well as allocate the costs of those
services.” Ariz. R. Fam. Law P. 95(a). Here, the court allocated the costs of
the services but failed to make an on-the-record determination that either
Mother or Father had the resources to cover the cost. On remand, the court
must determine Mother and Father’s ability to pay and allocate expenses
based on their respective capacity.

D. The Court Erred by Delegating Its Authority to the TI and Father.

¶43 In the 2021 Parenting Order, the court ordered

that Father shall continue to have supervised parenting time
as directed by [the TI] until she determines that the child is
again ready to have unsupervised parenting time with Father.
The parties shall follow the recommendations of [the TI]
regarding Father’s parenting time with the goal of gradually
increasing his parenting time and eventually returning to the

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Opinion of the Court

equal parenting time schedule once it is therapeutically
appropriate for them to do so.

The court also ordered that if the TI were unwilling to continue her work
with the family, “Father shall select a new therapeutic interventionist,” with
each party responsible for half of the new TI’s fees.

¶44 Mother argues that the court unlawfully delegated its
authority to determine legal decision-making and parenting time. She adds
that the court’s delegation was also troubling because it would “allow[]
Father to dictate the TI services that would determine Father’s parenting
time.” We agree.

¶45 On its face, the court’s order allowing Father to choose the
next TI violates Rule 95. As noted above, Rule 95 permits the court to order
parties to engage in behavioral or mental health services and share the cost
of those services. First, the court’s order denied Mother due process by
granting Father exclusive choice of a new TI without input from Mother.
See Curtis v. Richardson, 212 Ariz. 308, 312, ¶ 16 (App. 2006) (Due process
requires notice and an opportunity to be heard.). Second, it also required
Mother to pay half the fees of Father’s chosen TI regardless of the cost and
without the requisite on-the-record finding of ability to pay. See Rule 95(a).
Unless the parties stipulate to a particular TI or the paying parent is
responsible for the entire cost, the court cannot delegate its selection
decision to one party.

¶46 Likewise, the court erred by delegating its exclusive authority
to determine parenting time to behavioral professionals in the 2021
Parenting Order and the COBI order. A “court may seek the advice of
professional personnel” or “order an investigation and report concerning
legal decision-making or parenting time arrangements for the child.” A.R.S.
§§ 25-405(B), -406(A). But the court “can neither delegate a judicial decision
to an expert . . . nor abdicate its responsibility to exercise independent
judgment. The best interests of the child . . . are for the [family] court alone
to decide.” Nold v. Nold, 232 Ariz. 270, 274, ¶ 14 (App. 2013) (quoting
DePasquale v. Sup. Ct. (Thrasher), 181 Ariz. 333, 336 (App. 1995)); see also
A.R.S. § 25-403(A).

¶47 In the 2021 Parenting Order, the court ordered that Griffin
must reside with Mother “except for the times specifically designated for
Father’s parenting time,” then stated that Father will “have supervised
parenting time as directed by [the TI] until she determines that the child is

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Opinion of the Court

again ready to have unsupervised parenting time with Father.” (Emphasis
added.) These determinations are not for the TI to make.

¶48 Whether a recalcitrant or dangerous parent has overcome an
issue requiring supervised parenting time is for the court to decide after
affording due process to the other parent. Due process requires “notice and
an opportunity to be heard at a meaningful time and in a meaningful
manner.” Curtis, 212 Ariz. at 312, ¶ 16; see also Volk v. Brame, 235 Ariz. 462,
466, ¶ 14 (App. 2014) (“[D]ue process requires the court to allow parties a
reasonable opportunity to present testimony whenever resolution of a
material contested issue hinges on credibility.”). These due process and
statutory concerns do not mean that a court is prohibited from establishing
milestones for a parent to receive additional or unsupervised parenting
time in a parenting order. But unless the milestones are self-effectuating,
the court, not a behavioral health professional, must determine whether a
requirement has been met.2

¶49 The 2021 Parenting Order and COBI order improperly
delegated the court’s authority. Although the court could properly accept
the behavioral professional’s advice, it was prohibited from abdicating its
responsibility to independently determine when Griffin would be ready for
unsupervised or increased parenting time. Without an express agreement
by the parties, see Ariz. R. Fam. Law P. 74, only a court may evaluate when
parenting time is appropriate because only the court may assess parenting
time in accordance with the child’s best interests. See Nold, 232 Ariz. at 274,
¶ 14; A.R.S § 25-403(A).

¶50 We note that the legislature has specifically provided a
mechanism for continued supervision of a case after the entry of a parenting
order. See A.R.S. § 25-410(B). Neither the 2021 Parenting Order nor COBI
order complied with the legislative directive that post-order supervision be
conducted by a “local social service agency” with fees “approved by the
supreme court.” See id.

2 A self-effectuating milestone could be, for example, the child’s
reaching a certain age or beginning school. In that case, the requirement is
not in dispute when reached. But a disputable milestone, such as one
dependent on a third party’s assessment or compliance with drug testing,
is subject to court review before implementation. See generally Helen R.
Davis, Self-Executing Modifications of Custody Orders: Are They Legal?, 34 J.
Am. Acad. Matrim. Law. 53 (2021).

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Opinion of the Court

ATTORNEY’S FEES AND COSTS

¶51 Both parties request an award of attorney’s fees on appeal
under A.R.S. § 25-324. We decline to award attorney’s fees to either party at
our discretion. As the prevailing party on appeal, Mother is awarded her
costs upon compliance with Arizona Rule of Civil Appellate Procedure 21.
See A.R.S. § 12-341.

CONCLUSION

¶52 We vacate the order appointing a COBI and the portion of the
2021 Parenting Order that delegated the court’s authority and required
payment for a TI. Accordingly, we remand for further proceedings
consistent with this opinion.

AMY M. WOOD • Clerk of the Court
FILED: JT

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