When does a child have a “voice” in an Arizona child custody proceeding? How can the child’s wishes be heard? Can a child have a lawyer of her own? These are questions I am asked every week by moms and dads involved in child custody disputes.
Rule 10 of the Arizona Rules of Family Law Procedure (“ARFLP”) allows a family court judge to “appoint one or more of the following: a) a best interests attorney; b) a child’s attorney; or c) a court-appointed advisor.” A person appointed in any of these roles may speak with a child of suitable age and maturity, effectively giving the child a “voice” in the process. Under ARFLP, Rule 12, the Court may also interview a child, or appoint a professional to do so, to ascertain the child’s wishes as to legal decision-making and parenting time.
Best Interests Attorney. When appointed, a best-interests attorney acts as an attorney in the case, with the specific charge to advocate for the child’s best interests. The best-interests attorney (“BIA”) may investigate and conduct discovery (fact-gathering) as would an attorney for the mother or father. The BIA may also file motions with the court, examine and cross-examine witnesses, and otherwise act as an attorney in the case to the same extent as the attorneys for the mother and father.
The BIA is specifically charged with pursuing the legal decision-making and parenting time arrangement that is best for the child. The BIA does not necessarily advocate for what the child wants, but the child’s wishes may be one factor taken into account by the BIA. Sometimes a child wants to live with the parent who doesn’t make the child do homework, who doesn’t impose a curfew or other house rules, or who allows the child to drink alcohol or smoke pot. When the BIA believes the child’s wishes are not in the child’s best interests, the BIA is still obligated to advocate for what the BIA believes is best for the child–not just what the child wants.
Child’s Attorney. The job of a child’s attorney is to advocate for the child’s wishes, even if what the child wants is not in the child’s best interests. In my experience, it is rare for Arizona family court judges to appoint an attorney for a child. For the most part, judges want input on what is best for a child, even if that is contrary to the child’s wishes. When a child’s attorney is appointed, however, the child’s attorney participates in the litigation process to the same extent as the other lawyers.
Court Appointed Advisor. A Court Appointed Advisor (“CAA”) may be an attorney but is not required to be. In Maricopa County, most of the individuals serving as CAAs are Ph.D. or masters-level therapists. The role of a CAA is to investigate and then report to the Court the CAA’s findings and opinion as to what legal decision-making and parenting time arrangements are in the child’s best interests. While the role of a CAA is similar to that of a best interests attorney, a CAA, even if she happens to be an attorney, may not act as an attorney in the case. She may not make opening or closing statements, examine witnesses or file motions. The CAA does, however, issue a written report. The CAA may also be called as a witness at a trial or evidentiary hearing.
Child Interview. Even without the appointment of a BIA, child’s attorney, or CAA, a family court judge has authority under Rule 12 of the ARFLP to conduct an interview of an age-appropriate child “to ascertain the child’s wishes” as to legal decision-making and parenting time. In the old days, judges conducted these interviews themselves, usually in their chambers and without a court reporter present. Now, most judges delegate the task of interviewing children to the conciliation services branch of the court. In addition, the interview must be recorded by a court reporter or other electronic medium. The interviewer’s report must be provided to both parents, unless the parents agree that the interview will be confidential. Child interviews may also be conducted by a behavioral health expert appointed to conduct a parenting conference or to perform comprehensive family assessment.
While a child’s wishes are only one of many factors considered by a judge in deciding legal decision-making and parenting time, it is, in most cases, important to the child, her parents and the judge that the child be heard. Through a best interests attorney, a child’s attorney, a court-appointed advisor or a recorded child interview, mature children can have a voice in Arizona child custody cases.
© 2017 J. Kyle Scoresby, P.C. All rights reserved.