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What Is The Role Of a Best Interests Attorney In Scottsdale, Arizona?
The duty of a Best Interests Attorney (“BIA”) is to “represent the minor children’s best interests.” As the attorney operates in a representative capacity, they do not testify as witnesses. Under the Arizona Rules of Family Law procedure, Rule 10(E) states every BIA “shall participate in the conduct of the litigation to the same extent as an attorney for any party.” Therefore, the BIA attends and takes part at trial and at evidentiary hearings, they offer evidence, conduct witness examinations and more, while focusing solely on the best interests of the child. The legal services of the BIA serve the solitary purpose of protecting the best interests of a child and are not bound by the child’s objectives or directives.
In contrast, the child’s privately retained attorney provides legal counsel that is independent for a child and owes the same responsibilities, duties, confidentialities and a competent level of representation as due to the parents. That is to say, a lawyer representing a minor child as a client is bound by the child’s objectives and directives.
Who Does Arizona Court Appoint To Protect The Child’s Best Interests?
When parents are disputing child custody right in a legal separation, divorce, or some other form of action, the family court has the discretion to appoint any of the following persons whose role will be to protect the best interests of the child:
- Court-Appointed Advisor
- Child’s Attorney
- Best Interests Attorney (BIA)
There are no sharing of duties and zero cross-over among the appointed legal representatives. There is no need for the Court-Appointed Advisor to be a licensed attorney and they may report and testify as a witness on matters about the child to the Court. In contrast, the Child’s Attorney and the Best Interests Attorney may cross-examine the advisor regarding the advisory report if they have called them as a witness.
However, the other two appointees are attorney positions. The Child’s Attorney and the BIA are both legally representing and advocating on behalf of the child, although the ways they go about doing that do differ.
Rule 10. Representation of Children
17B A.R.S. Rules Fam. Law Proc., Rule 10
Former Rule 10, relating to the representation of children, minors and incompetent persons, was abrogated Aug. 30, 2018, effective Jan. 1, 2019. See, now, this rule and AZ ST RFLP Rule 10.1.
(a) Appointment of a Best Interests Attorney or Child’s Attorney. One or more of the following may be appointed by the court on behalf of a minor child:
(1) a child’s attorney; or
(2) a best interests attorney
(b) Grounds. An attorney may be appointed by the court for any reason the court deems appropriate to represent a child in a family law case under A.R.S. § 25-321 for any reason the court deems appropriate.
(c) Qualifications. As determined by the court, the attorney the court appoints as the best interests attorney or the child’s attorney must be qualified through experience or training in the type of proceeding in which the appointment is made. The attorney must have knowledge of the American Bar Association Standards of Practice for Lawyers Representing Children in Custody Cases.
(d) Appointment Order. The order to appoint an attorney must include the following:
(1) a clear statement explaining the reasons for the appointment;
(2) the length of the appointment;
(3) The allocation of fees and expenses between the parties including the attorney’s compensation.
(4) Language that authorizes the attorney to have immediate access to the child;
(5)language that authorizes the attorney to have immediate access to any child related confidential or privileged records and information;
(6) language allowing an appointed attorney access to any of the child’s records.
(e) Participation. An attorney appointed under this rule:
(1) must participate to the same extent in the proceeding as an attorney for any party;
(2) may not engage in, except as authorized by law, ex parte contact with the court.
(3) may not be compelled during the appointment to produce the attorney’s developed work product;
(4) may not be required as a result of the appointment to disclose the source of information obtained;
(5) may not be able submit a report into evidence; and
(6) may not be able testify in court.
(f) Appointments from Juvenile Dependency Rosters. The court may not appoint a child’s attorney or best interests attorney from a county or state-funded juvenile dependency roster unless the court finds that a child may be the victim of neglect or child abuse as defined in A.R.S. § 8-201.
What Are Best Interests of a Child In Arizona Child Custody Cases?
When resolving child custody disputes, the Court’s focus is always the “best interests of a child.”
There are many different factors the court considers when determining that is in the best interests of a child or children. These include:
- Each parent’s history of criminal behavior, addiction, domestic value and/or abuse (when applicable.)
- Each parent’s history of domestic violence and making false allegations of abuse (when applicable.)
- The willingness of each parent to promote a healthy, positive relationship between the child and the other parent.
- The child’s capability to adapt to a new home, school and/or community.
- The mental and physical health of the child as well as each parent.
- The relationship the child has forged with other siblings (if applicable) as well as with each parent.
- The wishes of the child as well as the wishes of each parent.
When Are Best Interests Of The Child Considered in Arizona Custody Disputes?
When evaluating what is in the best interest of the child or children, the court will consider the following:
The splitting up of parenting time and primarily whether to award sole custody, joint custody or some other custodial arrangement.
Requests for the modification of child custody that may be made when one parent remarries, moves, develops a new health issue, and so on.
The court will generally uphold agreements when the parents can come to an arrangement on their own regarding how custody should be split between them. This means the court will not get as involved to the same extent in determining litigated matters of best interest.
*This information is not intended to be legal advice. You can contact Canterbury Law Group today to learn more about your personal legal needs.
- Appointment Of Best Interests Attorney For Child(ren) – Superior Court
- Rule 10. Representation of Children – Arizona Court Rules
Speak With Our Best Interest Attorneys In Scottsdale
The Canterbury Law Group should be your first choice for when you an best interest lawyer in Phoenix or Scottsdale, Arizona. Our experienced family law attorneys will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation!