Changes to Rule 12 Raise Questions About Who Has to Record Child Interviews

by Annette Burns on April 8, 2015

Rule 12, Arizona Rules of Family Law Procedure, regarding “Court Interviews of Children” was changed effective January 1, 2015.  The changes are significant.  The old version stated (in toto):

On motion of any party, or its own motion, the court may, in its discretion, conduct an in camera interview with a minor child who is the subject of a custody or parenting time dispute, to ascertain the child’s wishes as to the child’s custodian and as to parenting time. The interview may be conducted at any stage of the proceeding and shall be recorded by a court reporter or any electronic medium that is retrievable in perceivable form. The record of the interview may be sealed, in whole or in part, based upon good cause and after considering the best interests of the child.   The parties may stipulate that the record of the interview shall not be provided to the parties or that the interview may be conducted off the record.  (Emphasis added)

I added emphasis above to two portions of the old rule:    Rule 12 has always stated that a court interview of a child SHALL be recorded, so that’s not a significant change.   And the prior version of Rule 12 stated that the may be sealed if the court finds good cause to do so.  That second part has changed.  The court no longer has discretion to seal the interview from the parents, no matter what the child says.

The revised Rule now states that the interview “must” be recorded by a court reporter (not a big change from “shall”), but provides that the record may be sealed “from the public” (not from the parents).   The recorded interview may be sealed from the parents ONLY by stipulation of the parents.   “The record of the interview MUST be made available to the parties, unless they have stipulated otherwise .  . .  “   (Emphasis added)

The new Rule adds a cautionary stance about child interviews:

  1. Special Precautions. In conducting an in camera interview with a child, the court must take special care to protect the child from embarrassment and restrict the unnecessary repetition of questions. The court must also take special care to ensure that questions are stated in a form that is appropriate to the child’s age and intellectual capacity. The court must inform the child in an age-appropriate manner about the limitations on confidentiality, that the information provided to the court will be on the record, that the information provided to the court will be provided to the parties in the case unless the parties have stipulated otherwise, and that whatever the child says will be considered but will not alone be determinative of the issues of legal decision-making and parenting time. In the process of listening to and inviting the child’s input, the court must allow but not require the child to state a preference regarding legal decision-making and parenting time and should, in an age-appropriate manner, provide information about the process by which the court will make a decision.

Unfortunately, this cautionary Subsection of Rule 12 is sometimes the only education a judicial officer receives about interviewing a childTo their credit, many Judges decline to interview children at all.

Perhaps the biggest change which took effect January 1 is who this Rule applies to.  Per Subsection C, “Definition”, the recording rule now applies to “any Conciliation Services department, agency, or other third-party professional ordered by the assigned judge to conduct a child interview pursuant to ARS 25-405 or the Arizona Rules of Family Law Procedure.”    So the requirement of recording the interview now unquestionably applies to Conciliation Services personnel (including, presumably, their contract providers who do parenting conferences in Maricopa County).    It seems equally clear that if a professional is ordered to forensically interview a child about particular issues, the recording requirement applies.

The question remains if this Rule applies to court-appointed Therapeutic Interventionists, court-appointed therapists, parenting coordinators, and custody evaluators who interview children.   Those professionals are appointed pursuant to either ARS 25-405 or ARFLP, but rarely does an appointment order “order” the professional to interview the children.      What if an interview of the child isn’t specifically ordered but comes up in the process of TI or parenting coordination work?    Many therapists for children are court-appointed, and surely the Rule doesn’t mean that every session between a child and his court-appointed therapist must be recorded, with the recording released to the parents?     I don’t have any answers, just questions about this for now.

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