Rule 10, Part 2

by Annette Burns on March 16, 2013

This post is the second of three about Rule 10, Arizona Rules of Family Law Procedure.    Rule 10 deals with the use of a best interests attorney, attorney for a child, and a court-appointed advisor (CAA) in family court proceedings.

How each role participates in courtroom proceedings and litigation is described in Rule 10E:

E. Participation in Proceeding by Child’s Attorney, Best Interests Attorney, And Court-Appointed Advisor.

1. A child’s attorney or best interests attorney shall participate in the conduct of the litigation to the same extent as an attorney for any party.   [Note:  This means that these individuals may call witnesses, cross-examine witnesses, file pleadings, motions and position statements, and participate in any scheduled proceedings such as RMCs and status conferences as well as hearings.]

2. A child’s attorney, best interests attorney, and court-appointed advisor may not engage in ex parte contact with the court except as authorized by law other than this rule.

3. A court-appointed advisor may not take any action that may be taken only by a licensed attorney, including making opening and closing statements, examining witnesses, and engaging in discovery other than as a witness.   

4. The court shall ensure that any court-appointed advisor for a child has an opportunity to testify or submit a report setting forth:

a. the court-appointed advisor’s recommendations regarding the best interests of the child; and

b. the basis for the court-appointed advisor’s recommendations.

The above section more clearly clarifies that a CAA’s role is similar to a Guardian ad Litem’s (GAL) role in custody cases.  GALs are no longer used in family court proceedings in Maricopa County.   The report and recommendations given by a CAA will be very similar to reports that used to be given by GALs in those proceedings.   See Rule 10I, which provides that the court “SHALL NOT appoint a guardian to act on behalf of the minor or incompetent person, except as provided by Title 14.”   (emphasis added)

5. In a proceeding, a party, including a child’s attorney or best interests attorney, may call any court-appointed advisor for the child as a witness for the purpose of cross-examination regarding the advisor’s report without the advisor’s being listed as a witness by a party.

6. An attorney appointed as child’s attorney or best interests attorney may not:

a. be compelled to produce the attorney’s work product developed during the appointment;

b. be required to disclose the source of information obtained as a result of the appointment;

c. submit a report into evidence; or

d. testify in court.

The above subsection was included to emphasize that when acting as a best interests or child’s attorney, the role is virtually the same as acting as an attorney for an adult, in that confidentiality and work product are preserved, and that the attorney is not a witness.

 

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