AKSAMIT v. Krahn
578 Ariz. Adv. Rep. 23, 224 Ariz. 68, 227 P.3d 475 (2010)
Rule of Law:
A Best Interests Attorney (BIA) appointed in Arizona family court proceedings must participate as an advocate for the child's best interests, relying on evidence presented, and is explicitly prohibited from submitting reports into evidence or testifying in court regarding their own investigations or opinions.
Facts:
- Patricia K. Aksamit (Mother) filed a petition for dissolution of her marriage to Greg Krahn (Father) in August 2007.
- Mother and Father are the parents of two minor children, ages eight and five when the petition was filed.
- Mother initially sought joint legal and primary physical custody, but later amended her request to seek sole legal custody for herself with parenting time for Father.
- The family court appointed a Best Interests Attorney (BIA) for the minor children, with an order explicitly stating the BIA 'shall not submit a report or testify in court.'
- At the outset of the trial, the court asked the BIA to 'give me a report,' to which the BIA orally responded.
- The BIA's oral response comprised six transcript pages of substantive information based on her own investigation, including observations about Father's temperament, Mother's home suitability, and her recommendation for sole custody to Mother.
- The family court's subsequent decree, granting Mother sole custody, made multiple specific references to the BIA's oral report and opinion, stating its findings were 'supported by the opinion and experience of the Best Interests Attorney' and that 'The BIA indicates that she could find no deficiencies.'
- Father had raised concerns about the caretaking abilities of Mother’s older sons, an issue on which the court explicitly relied on the BIA’s statement.
Procedural Posture:
- Patricia K. Aksamit (Mother) filed a petition for dissolution of marriage from Greg Krahn (Father).
- The family court appointed a Best Interests Attorney (BIA) to represent the minor children’s best interests.
- A trial to the court was held, during which the court asked the BIA to 'give me a report,' and the BIA provided an oral response.
- The family court issued its decree, granting Mother sole custody of the children and Father parenting time, and explicitly referenced the BIA's report in its findings.
- Father filed a motion for new trial in the family court, which was denied.
- Father timely appealed the family court's decision.
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Issue:
Did the family court abuse its discretion and commit prejudicial error by soliciting and relying upon an unsworn oral report and personal opinions from a Best Interests Attorney as evidence in a child custody determination, when the court's appointment order and the Arizona Rules of Family Law Procedure expressly forbid such attorneys from testifying or submitting reports?
Opinions:
Majority - Barker, Judge
Yes, the family court abused its discretion and committed prejudicial error by soliciting and relying on the Best Interests Attorney's (BIA) oral report and opinions as evidence. The court's order appointing the BIA and Arizona Rules of Family Law Procedure Rule 10(E)(6)(c) and (d) unequivocally prohibit a BIA from submitting a report into evidence or testifying in court. Rule 10 clearly distinguishes a BIA, who acts in a representative capacity and advocates based on evidence, from a court-appointed advisor, who is permitted to testify or submit a report. The ABA Standards of Practice for Lawyers Representing Children, referenced as guidance in the rule's commentary, also affirm that a BIA should not testify, file a report, or make recommendations, but rather offer 'traditional evidence-based legal arguments.' Here, the trial court explicitly asked for, and the BIA provided, substantive information derived from her own investigation and personal opinions, which the court then treated as evidence and relied upon in its written findings to decide custody. This was a clear departure from the BIA's permissible role, transforming her into an unsworn witness whose findings were not subject to cross-examination. This error was prejudicial because the court's custody determination on core contested issues, such as parental fitness and child welfare, expressly rested upon the BIA's 'opinion and experience,' thereby affecting Father's substantial rights under the Arizona Constitution and A.R.S. § 13-3987. Therefore, the custody order must be vacated and remanded for a new trial.
Analysis:
This case is significant for clearly defining the distinct roles of professionals appointed in child custody cases under Arizona Rule 10, particularly highlighting the difference between an advocate (Best Interests Attorney or Child's Attorney) and a fact-finder/reporter (Court-Appointed Advisor). It reinforces the principle that an attorney's arguments, even when advocating for a child's best interests, do not constitute evidence themselves. The ruling underscores the importance of proper evidentiary procedures and due process in family court, ensuring that all parties have the opportunity to challenge information influencing a custody decision. Future cases will rely on this precedent to ensure BIAs adhere strictly to their role as attorneys presenting evidence-based arguments, rather than acting as uncross-examined witnesses or submitting investigatory reports.
