Arizona Family Law in 2015

by Annette Burns on December 30, 2015

So what happened in family law in Arizona in 2015? Well, a few things.

1. Parenting Coordinator Rule change. The original parenting coordinator rule came into effect for the first time on January 1, 2006. Before that, there was no such thing as parenting coordination in Arizona. The rule has been slightly modified a couple of times since then, but will reach its 10th birthday with a major overhaul.    I posted specifics about the PC rule change in this blog post, but the major things to remember are (a) a PC won’t be appointed without a stipulation of both parties (either written or stated on the record in court; and (b) PCs no longer make recommendations — they make decisions, and those decisions are considered binding unless the PC has gone outside the PC’s authority.
2. The Austin case, out of Division 2 in April, 2015, should strike fear into the hearts of business and estate planning lawyers who represent married people creating LLCs, trust and other intra-family entities while married, without having independent representation. Austin resurrected In re Harber’s Estate, a 1969 case that really hadn’t been mentioned much in recent years.
3. The Schickner case, also filed April 2015, didn’t add a tremendous amount of new law on the issue of minority discounts, but it did establish that (a) ProFinish, a shareholders’ rights case, doesn’t apply in family court; (b) no Arizona case prevents a court from applying a minority discount in a family court business valuation; (c) there still is no bright-line rule in Arizona for applying a minority discount; but (d) the minority discount was not approved where the divorcing Husband held 50% ownership of the business and held significant decision-making power for the company.
4. The end of the gatekeeper statute as it applies to family law cases. For the last several years and until July 2015, if a litigant in a family case wanted to file a board complaint against a court-appointed mental health professional (like a therapeutic interventionist or a custody evaluator), the litigant had to first take his/ her complaint to the judge in charge of the case. (Arizona Revised Statute 32-2081B.)The judge then acted as a gatekeeper to see if the complaint seemed based on legitimate concerns (had a “substantial basis”) or if it seemed to be based on the litigant simply not liking the outcome. That gatekeeper process has been eliminated for mental health professionals appointed in family court cases, so board complaints can be filed without that judicial review. The result? Probably fewer professionals willing to take on court appointments, and more cases will remain strictly within the court’s discretion, without expert input.
5. Seminar highlights of the year included the For Better or For Worse program in January, with the largest attendance yet, and the Arizona AFCC plenary session in Sedona in February (yes, I was a part of that panel, but major kudos go to Dr. Marsha Kline Pruett’s presentation on the shared parenting debate with young children). Then there was AAML’s advanced financial seminar, a day and a half extravaganza in October that delivered outstanding presentations and almost 700 pages of high-level financial materials.
6. Ronee Korbin Steiner, a longtime family law practitioner and certified family law specialist in Phoenix, was appointed to the bench by Governor Ducey, giving the family law bench direct family law experience from the trenches.

7.  Supreme Court Rule 111 was changed (1/1/15) to allow citing to memorandum decisions in some circumstances for persuasive value, only if the decision was issued after 1/1/2015; no opinion adequately addresses the issue before the court, it’s not a depublished opinion, and the citation indicates that it’s a memorandum decision.

8.  There is now a collaborative divorce rule in Arizona that establishes the procedures to be used if a collaborative procedure is agreed on by the parties. New Rule 67.1, Arizona Rules of Family Law Procedure, is the Uniform Collaborative Law Rules.   (Although it’s titled “Collaborative Law” rather than “Collaborative Divorce”, the definition of a ‘collaborative matter” in the Rule is limited to family law proceedings, and its inclusion in the Family Law Rules makes it clear that it’s not intended to apply to other types of collaborative civil cases.)   The Rule provides definitions relative to the collaborative process, including what provisions must be in a collaborative divorce agreement, and what actions terminate the collaborative process.   The Rule includes the provision which is crucial to the collaborative process when it states that, with limited exceptions, “a collaborative lawyer is disqualified from appearing before a tribunal to represent a party in a proceeding related to the collaborative matter.” (The exceptions are an emergency motion regarding someone’s health or safety, or asking the court to approve a collaborative divorce agreement.)

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