Aksamit v. Krahm (3/18/2010)
Arizona Court of Appeals Division One Holds That A “Best Interests” Attorney May Not Make Reports to the Court.
The Appellee (the “Mother”) filed a petition for dissolution of her marriage to the Appellant (the “Father”). The Mother and Father were parents of two minor children. In accordance with Arizona Rules of Family Law 10(E), the court-appointed a best-interested attorney (BIA) to represent the children’s interests. Rule 10 states that a BIA “shall not submit a report or testify in court.” At the beginning of the trial, the court asked the BIA to give a report. The BIA made an oral report opining that the Mother should retain custody of the children. The BIA’s report also included supporting factual information. When the court issued its findings, it made multiple references to the information provided by the BIA. The Father appealed, arguing that the court erred when it considered the BIA’s report in making its decision. The Arizona Appeals Court vacated the trial court’s custody order and remanded it, holding that a BIA may not provide information or reports which are treated as evidence upon which the court’s decision is based.
Judge Barker authored the opinion; Judges Norris and Swann concurred.