Rule 81, ARFLP

Rule 81, ARFLP

Rule 81 is a new Rule designed to help the court, through appointed professionals, enforce parenting time orders.

The Petition to adopt new ARFLP 81 was filed in November 2022 and was open for comments from January to May 1, 2023.  No comments were filed to this Petition.   I wrote about this and other pending rules petitions in this post on March 21, 2023.

On August 24, 2023, the Supreme Court adopted Rule 81 “Post-Judgment Parenting Time Supervision and Case Implementation Supervision”.  

I previously wrote about Court-Appointed Behavioral Interventionists (“COBI”) in this post in 2022.  A COBI is a method of enforcement of post-judgment court orders for parenting time.  So new Rule 81 becomes a basis for what was previously known as COBI appointments, as well as other methods of enforcing parenting time orders, and it provides details about how and when a person can be appointed to assist with enforcement after parenting time orders are entered.[1]

First off, Rule 81 is a long Rule with lots of detail.  My comments to and questions about portions of this Rule follow.   (I still have a lot of questions.)

Rule 81, Post-Judgment Parenting Time Supervision and Case Implementation Supervision

(a) Application. This rule applies after a judgment has been entered under Rule 78.

(b) Definitions. These definitions apply:

  • Parenting Time Supervisor or Case Implementation Supervisor. A “parenting time supervisor” or a “case implementation supervisor” is any person or local social service agency stipulated to by the parties and approved by the court, or any person or local social service agency appointed by the court to carry out the terms of A.R.S. § 25- 410(B).

Annette’s Note:   There is no requirement in this section that the “person” to be appointed in these roles be a licensed therapist or other licensed professional, although presumably if the court approves someone, that person will be qualified (and possibly licensed) to do this work.

What is the nature of the “approval” of this person by the court?  Does the court’s approval of the designated person meant the court is standing behind that person’s qualifications and abilities?

  • Local Social Service Agency. A “local social service agency” is any group or individual recognized by the community as a provider of social services to members of the community, including conciliation courts, when ordered by the presiding judge of the county or presiding domestic relations judge.

Annette’s Note:  It’s hard to say who or what will be the arbiter of who is “recognized by the community”.  The meaning of the last phrase, “when ordered by the presiding judge” is unclear.   Must any “local social service agency” be appointed by the presiding judge, or is that phrase only modifying the use of conciliation courts in this role?

(3) Parenting Time Supervision. Parenting time supervision encourages parenting time between the child and parents. The supervisor facilitates contact per court orders in a manner that may include but is not limited to physical supervision. Communication with and services provided by the parenting time supervisor are not confidential. Supervisors must observe and report their observations. The supervisor may terminate a court-ordered parenting time session should there be a concern arising from a participant’s behavior or safety issues for a participant, including the parenting time supervisor.

Annette’s Note:  The use of the term “supervisor” in this context (post-decree enforcement) will confuse some people, as “supervision” when used with parenting time usually means physical supervision of a parent’s time with the child.  That’s not what it means here.  “Supervision” in this context appears to mean that the appointed person is supervising meetings and contact between the parents and child to facilitate parenting time which may not be taking place.

  • Case Implementation Supervision. After a judgment is entered, implementation issues may remain other than the fitness of each parent to carry out the plan that the court ordered. Case implementation supervision assists the parties and court in implementing the judgment’s terms. Communication with and services provided by the supervisor is not confidential. Supervisors must observe and report their observations. Supervision may include a therapeutic component for all participants to address behaviors inconsistent with the parenting plan’s implementation.

Annette’s Note.  An important part of this Section is “Supervision may include a therapeutic component”.    This is the only mention of therapy or therapeutic in this Rule.   Case Implementation Supervisors generally are not appointed to provide therapy to the family but to intervene to see that parenting time orders are enforced.  Does this reference to the possibility of a “therapeutic component” mean that the supervisor who is appointed under this Rule can refer a parent to individual therapy?   

(c) The Parenting Time or Case Implementation Supervision Order.

  • The court must order parenting time consistent with the child’s best interests. If the parties agree, or the court finds that without a continuation order the child’s physical health would be endangered or the child’s emotional development would be significantly impaired, the court may order parenting time or case implementation supervision consistent with the child’s best interests.

Annette’s Note:  I don’t know what the term “continuation order” means here.   It’s mentioned as if it’s a specific thing/ noun, but there is no definition of a “continuation order”.  I don’t know why simply using “order” here isn’t sufficient.    But the most important part of this Section is that it allows the court to appoint, post-decree, a supervising professional. 

How does this Rule fit with the appointment of a Therapeutic Interventionist (TI)?   I wish I knew.    The goals for a TI appointment are often vague, and may not have anything to do with enforcement of specific parenting time orders.   A TI is often appointed when the parties, attorneys, and court don’t know what else to do with a case, where parenting time is vague or nonspecific, and little contact is taking place between a child and one parent, and enforcement of existing parenting orders seems pointless.   In those cases the TI is appointed to act as a “family therapist” to “fix” the relationship, but sometimes with no guidance as to what the ultimate goal is for the relationship.  In those cases, the TI appointment turns into a multi-year process which, as far as I know, isn’t specifically authorized under any family law statute or rule.

  • For the supervisor selection, the court may provide parties with a list of supervisors. The parties may stipulate to a supervisor from the list or any other person that the parties agree is appropriate to serve. The court must designate a supervisor based on the parties’ stipulation or under a procedure adopted by the court.

Annette’s Note.   In 2020, Maricopa County Superior Court eliminated the existence of court “rosters” of individuals to provide family court services (mental health services, evaluations, and real estate services).  The court did not want to be in the business of recommending individuals, and the Order eliminating the rosters emphasized that the individual litigants are responsible for doing their own independent research to make sure that appointed persons are qualified to do the job.   While Rule 81 now states that the court “may” provide parties with a list of proposed supervisors, it may be that only some counties have such a list.    I don’t believe that Maricopa County now has or is likely to have such a list in the near future.  But individual counties may determine what “procedure[s] adopted by the court” they want to use.   One procedure for the use blind lists is outlined on Exhibit “B” to the above-referenced Administrative Order.  

(3) The appointment order must provide the following:

(A) The allocation of fee payment between the parties. After determining that the parties can afford to pay the fees, the order will state who will be responsible for paying the fees and how and when payments will be paid. If the parties cannot afford the fees and other funding is available, the order will provide how the costs will be covered.

(B) Scheduling appointment responsibility. The order must state the party or parties responsible for contacting the supervisor to arrange parenting time supervision or case implementation.

(C) Providing record availability to the supervisor. The order must specify what information is to be provided to the supervisor. The order must determine how, when, and by whom the information will be provided. If there are any special concerns or needs of the child, the supervisor should be informed.

(D) Establishing the frequency of reports from the supervisor. The order must specify the required reports, the report’s content, and frequency. The order must require that the supervisor keep notes of each visit.

Annette’s Note.  The above procedures are consistent with the what used to be COBI appointment Orders, emphasizing that Rule  81 is the adoption of COBI into the Rules.

(E) For parenting time supervision, the order must specify the type required by the court. Such supervision may include but is not limited to, parenting time exchange supervision, parenting time supervision, and therapeutic parenting time supervision.

(F) Establishing the supervisor’s authority to carry out the judgment.

(G) Setting out any procedure necessary for review hearings.

Annette’s Note.  This procedure for review hearings is also consistent with what was previously a COBI appointment order.

(H) Establishing the duration of parenting time or case implementation supervision. The supervision order expires at the court’s discretion but must be stated in the order. If a party seeks to modify, extend, or vacate the parenting time or case implementation supervision, the requesting party must file the appropriate petition under Rule 91. A supervisor may submit a written request for an extension or modification. The court must allow the parties to be heard if a supervisor requests an extension or modification.

Annette’s Note.  This Section is also consistent with the principles of the  COBI process, which was anticipated to start with an appointment duration of only six (6) to twelve (12) months.

(I) Stating the purpose of parenting time or case implementation supervision, including the identification of and protection from the potential risks to the child’s physical or emotional health arising from parenting time.

(d) Fees. The imposition of reasonable fees is authorized for parenting time and case implementation supervision and may be charged to one or both parties under Rule 95(a).   Reasonable fees are the usual and customary fees charged in the county, considering the availability of services, the nature of the issues presented, and the level of experience and training required of the supervisor.

[end of Rule 81]

Why was Rule 81 necessary?  According to the Petition filed in support of this Rule, the Rule is necessary because the long-stated need for judicial case supervision had not been adequately codified to allow both the trial court and the appellate court to know what court actions are authorized to enforce parenting time orders.  

Some judicial oversight of parenting time orders is authorized by ARS §25-410B which reads:

B.       If either parent requests the order, if all contestants agree to the order, or if the court finds that in the absence of the order the child’s physical health would be endangered or the child’s emotional development would be significantly impaired, and if the court finds that the best interests of the child would be served, the court shall order a local social service agency to exercise continuing supervision over the case to assure that the custodial or parenting time terms of the decree are carried out. At the discretion of the court, reasonable fees for the supervision may be charged to one or both parents, provided that the fees have been approved by the supreme court.

(Emphasis added)

The original version of §25-410B was adopted in 1987, showing that a need for judicial some supervision over cases has long been necessary to “assure that the custodial or parenting time terms” are followed.   A significant problem with 410B is its reference to a “local social service agency” which is not defined in the statute, and because the statute is so old, no recent updates define what “agencies” or persons should be assisting the court with case supervision.

 The adoption of Rule 81 acknowledges that the Arizona Court of Appeals, “apparently not privy to the letter’s guidelines or this court’s attempt at implementing A.R.S. § 25-410(B), reversed [case supervision] judgments that may have been appropriate . . . “.    This statement refers to appellate cases like Nold v. Nold, 232 Ariz. 270, 274 and Gish v. Greyson, 253 Ariz. 437 (App. 2022).

[1] To eliminate confusion about terminology and Rule 81, it will likely be helpful to change the name from COBI (Court-Ordered Behavioral Interventionist) to simply “Rule 81 appointee” to make it clear that the appointment is done pursuant to Rule 81.   

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