INTERPRETATION OF RULE 10, A.R.F.L.P.: REPRESENTATION OF MINOR CHILDREN

A judge in Pinal County recently asked counsel whether we preferred a Best Interest Attorney or a Family Court Advisor be appointed in a particular case. Rule 10, Arizona Rules of Family Law Procedure, allows the Court to appoint a best interests attorney, a child’s attorney, or a court appointed advisor in a case where there is (a) abuse or neglect allegation; (b) significant conflict between parents; (c) history of substance abuse or family violence; (d) there are serious concerns about the mental health or behavior of either parent; (e) the child is an infant or a toddler; (f) the child has special needs; (g) or any other reason deemed appropriate by the court. The particular need in this case is because the parents are teenagers who have just had an infant. The appointment of either a best interest attorney or a court appointed advisor continues throughout the litigation until final judgment or order.

BIA (Best Interest Attorney) v. Child’s Attorney

Let’s first discuss the distinction between a best interest attorney and a child’s attorney: a child’s attorney owes the child the same duties as an attorney owes an adult client; therefore the child is treated as an adult, positions and strategies are discussed with the child and the child’s wishes are advocated by the attorney. On the other hand, a BIA must gather information from all available and relevant sources and come to his or her own conclusion about what is in the best interests of a child in a particular case, then files a position statement and examines witnesses designed to promote the best interests position to the court. Clearly, the age of a child would dictate whether it would be appropriate for a best interest attorney or a child’s attorney to be appointed. It appears, however, that best interest attorneys are appointed far more often than a child’s attorney, likely because it would be difficult to determine on a case-by-case basis when the child is of a sufficient age and maturity to advocate for their own best interests.

BIA (Best Interest Attorney) v. Court Appointed Advisor (CAA)

Now, what are the differences between a best interest attorney and a court appointed advisor? A best interest attorney shall participate in the litigation to the same extent as an attorney for any party. He or she cannot be compelled to produce work product, submit a report into evidence or testify in court. A BIA must appear at all court proceedings, and represents the child as a separate party to the action. On the other hand, a CAA is usually the “Court’s expert" and does not act as an attorney, i.e. does not make opening/closing statements, examine witnesses or engage in discovery. Instead, the role of the CAA is to submit a report to the court setting forth recommendations regarding the best interests of a child along with the basis for the recommendations. That is why CAA’s are usually mental health professionals. A CAA is permitted to meet and interview children, parents, spouses, significant others, or other adults living in the household, make home visits to determine the appropriateness of the environment, investigate all parties criminal backgrounds, determine if drug testing is needed, review school, child care, health care records, law enforcement, court, and Child Protective Services reports concerning the children. Any party or attorney in an action may call the CAA as a witness for the purpose of cross examination regarding the advisor’s report without being disclosed as a witness by either party. Having a BIA (a third lawyer) involved in litigation, examining and cross examining witnesses for a third time takes up precious judicial time and would be less beneficial to the court than an objective CAA who can find out the wishes of a child, investigate issues or areas of parental concern, and also offer a recommendation as to the child’s best interest (which may be contrary to the child’s wishes). The parties (parents) in the case already have lawyers who can advocate their respective positions, which allows CAA’s do what they do best – advise.