Rule 10, ARFLP, Revisited

by Annette Burns on March 13, 2013

Even with no recent cases or guidance from the courts or rules committees on Rule 10, revisiting this Rule seems appropriate.   Rule 10 is a primer for three main classes of representation in custody cases.   Two of these roles are more traditional attorney representation and those two roles may only be filled by a licensed attorney.  The third class of representation is a court appointment, aptly titled Court-Appointed Advisor (CAA).   A CAA may be either an attorney or a non-attorney, but in either case, the appointee must have experience appropriate to the case.

This post is the first of three to address Rule 10.   Direct quotes from the Rule are in gold, below.

Rule 10A(1), Appointment of Child’s Attorney, Best Interests Attorney, and Court-Appointed Advisor, provides:

1. The court may appoint one or more of the following:

a. a best interests attorney;

b. a child’s attorney; or

c. a court-appointed advisor.

Note:  While the Rule permits more than one of these to be appointed in a single case, the roles of the best interests attorney and the court-appointed advisor may have significant overlap.

Subparts B and C of Rule 10, go on to define who may act in these three roles:

B. Qualifications of Child’s Attorney or Best Interests Attorney. The court may appoint as a child’s attorney or best interests attorney only an individual who is qualified through training or experience in the type of proceeding in which the appointment is made, as determined by the court and according to any standards established by Arizona law or rule.

C. Qualifications of Court-Appointed Advisor. The court may appoint as court-appointed advisor for a child only a qualified individual or a non-profit or governmental organization of qualified individuals. To be qualified, an individual must have received training or have experience in the type of proceeding in which the appointment is made, according to any standards established by Arizona law or rule. An attorney appointed as court-appointed advisor may take only those actions that may be taken by a court-appointed advisor who is not an attorney.

The last sentence of sub-part C, stating that if an attorney is assigned the role of CAA, the attorney make “take only those actions that may be taken” by someone who is not attorney, makes it clear that a CAA does not examine or cross-examine witnesses.  See the discussion of Rule 10E(3) below.    A CAA has a different function in the courtroom than that of either a best interests attorney (BIA) or an attorney for the child, and those courtroom roles are more specifically addressed in Rule 10E, below.

All three roles have great access to information about the family and child, as listed in Rule 10D:

D. Access to Child and Information Relating to Child.

1. Subject to subdivision 3 and any conditions imposed by the court that are required by law, rules of professional conduct, the child’s needs, or the circumstances of the proceeding, the court shall issue an order of access at the time of an order of appointment, authorizing the child’s attorney, best interests attorney, or court-appointed advisor to have immediate access to the child and any otherwise privileged or confidential information relating to the child.

2. The custodian of any relevant record relating to a child shall provide access to a person authorized by order issued pursuant to this rule to access the records.

3. A child’s record that is privileged or confidential under law other than this rule may be released to a person appointed under this rule only in accordance with that law.

The next post will focus on how each type of role participates in the courtroom and litigation.

 

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