During a contentious divorce, allegations arose that the Father sexually abused the parties’ five-year-old daughter. The trial court appointed a psychologist to perform a custody evaluation who recommended the child visit a therapeutic clinician who could counsel the child and make further recommendations to the family court based on the child’s treatment.
After the parties jointly objected to the custody evaluator’s recommended clinician, Father moved the court to appoint a particular doctor. The doctor was appointed without Mother’s objection initially, though she later moved the court to reconsider its appointment. Mother argued that the child would benefit from a female clinician and the doctor appointed was male. The trial court denied Mother’s motion.
Nevertheless, despite the court order for the child to be treated by the appointed doctor, Mother — who had primary physical custody of the child at this time — took the child to be treated by her preferred counselor.
When Father discovered that Mother was disobeying the court order, he moved the court to sanction Mother. By this time, the child had developed a rapport with Mother’s preferred counselor and the parties agreed that it would be detrimental for the child to change counselors. The court agreed and it ordered Mother to pay for all therapy costs (previously to be split evenly between the parties) and to pay Father’s attorney’s fees and costs incurred to file the motion for sanctions. As an additional sanction, the court ordered that the child’s therapist’s opinions and records were to be excluded from evidence.
Mother unsuccessfully moved the court to reconsider its sanctions before she filed a special action. The Arizona Court of Appeals declined jurisdiction, which means it declined to hear the special action. Mother then appealed to the Arizona Supreme Court.
Sanctions in child custody cases
Family courts have inherent authority to enforce their orders. This means judges can impose various sanctions when a party to a case violates a court order. Depending on the specific violation, judges may impose fines or other financial consequences, prohibit a party from asserting particular claims or defenses, issue an arrest warrant, or even proceed by default against the party who violated the court orders.
This power is not unlimited, though. This is especially true whenever a sanction would impact an innocent third party. In child custody cases, the children are innocent third parties. So the focus of this appeal was whether the sanctions imposed by the trial court—particularly the decision to exclude the child’s therapist records from evidence—interfered with the trial court’s duty to consider the best interests of the child.
In its ruling, the Arizona Supreme Court famously stated that the child’s best interests are “paramount” in child custody determinations. The trial court’s primary responsibility in child custody cases is to safeguard and protect children. In order to do so, it shall consider all relevant factors, as set forth in A.R.S. § 25-403(A).
The Supreme Court distinguished between the types of sanctions the trial court imposed and upheld the monetary sanctions. Because even in child custody cases, the trial court can use its inherent contempt power to sanction a litigant. However, the exclusion of the counselor’s opinions and records from evidence would necessarily preclude relevant, and potentially significant, information and would result in a less informed custody determination, contrary to the best interests of the child.
Ultimately, the Arizona Supreme Court vacated the sanctions that excluded evidence and the case continued in trial court.
Conclusion
Hays v. Gama remains foundational to Arizona family law today. The case essentially established the principle that procedural formalities are less important than the best interests of children during litigation that involves legal decision-making and/or parenting time.