Best Interests Attorneys Get More Guidance from Arizona Court of Appeals

by Annette Burns on March 27, 2010

The Arizona Court of Appeals offers specific guidelines for the application of Rule 10, Arizona Rules of Family Law Procedure, about what Best Interests Attorneys (BIAs) can and cannot do when appointed in a case. Aksamit v. Krahn (March 18, 2010, 1 CA-CV 08-0806) Guidance from the Court of Appeals is long overdue, because even though Rule 10 is very specific about the BIA's role in a case, BIAs are often misused.

The decision seems very complimentary to Rule 10, as it notes that the Rule specifically delineates the duties and responsibilities for each of the three positions described in the Rule. Those positions are Best Interests' Attorney, attorney for the child, and court-appointed advisor. The bright-line delineations between the three roles are set out in the Rule itself. And the Committee Comment to the Rule was also helpful to the Court, as it refers the reader to the ABA Standards of Practice for Lawyers Representing Children in Custody Cases  — see ABA Standards. Overall, the decision found no deficiencies in the way our Rule 10 is written, and it appears the Court of Appeals approves of the Rule and its Comment.

The problem in Aksamit was the way Rule 10 and the BIA's role was handled in that particular case. " . . [I]t is clear that the trial court relied on the [BIA's] report as though it was evidence." "As a practical matter, the BIA functioned as a court-appointed advisor, giving a substantive report that was treated as evidence . . ." In this case, the BIA "testified" (by giving a report), although she was not sworn; and the fact that a BIA "report" was given at all is in direct violation of Rule 10. Rule 10 clearly states "The Best Interests Attorney shall not submit a report or testify in court." Yet that is exactly what occurred in Aksamit, and what occurs regularly.

A BIA is put in a difficult position when appointed in that capacity, yet asked by the Court to "give a report", either in writing or during the hearing. It is the BIA's duty to follow the strict guidelines of Rule 10 and not submit a report, but submit only those pleadings and filings that any other attorney in the case can submit. A Position Statement is certainly acceptable, as long as it states positions and not opinions of the BIA. The BIA can certainly participate in the preparation of the Joint Pretrial Statement to be presented to the Court. The BIA is not sworn and does not testify, but can engage in opening statements and oral argument, as can any other attorney. The Aksamit opinion notes that this BIA's statement "I am supporting the mother's request for sole custody" WAS an appropriate statement (position) of the BIA.    "Taking sides and supporting a particular position is what a BIA is called upon to do."   Said the Aksamit court:  "If . . . [the BIA] had referred to evidence that would properly come before the court from a source other than herself, her 'report' would have been the equivalent of an opening statement or closing argument and would have been quite proper." (Emphasis added) .

BIAs should also note that when appointed, if it appears that the Court is really asking for a "report" from you, with your personal opinions, there is nothing that precludes the BIA from filing a Motion asking to be appointed as the court-appointed advisor instead. In that way the BIA can clarify his or her role, and get additional instruction on what the Court really wants done—-without an embarrassing violation of Rule 10.

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