Discretionary appointment of counsel

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Legislation, Custody Disputes - Children

Ariz. Rev. Stat. Ann. § 25-321 provides that in dissolution cases, the court may "appoint an attorney to represent the interests of a minor or dependent child with respect to the child's support, custody and parenting time."


Notably, the Arizona Rules of Court state specific criteria for the judge to weigh in exercising discretion to appoint pursuant to the statute, including:


1) Whether there is an allegation of abuse or neglect of a child;

2) Whether the parents are persistently in significant conflict with one another;

3) Whether there is a history of substance abuse by either parent or family violence;

4) Whether there are serious concerns about the mental health or behavior of either parent;

5) Whether the child is an infant or toddler; and

6) Whether the child has special needs.


Ariz. Fam. Law Proc. R. 10(A); see also J.A.R. v. Superior Court, 877 P.2d 1323 (Ariz. Ct. App. 1994) (concluding the trial court abused its discretion by failing to appoint counsel in a particular custody case involving allegations of abuse and neglect) (relying on the factors articulated in Matter of Appeal in Yavapai Cty. Juvenile Action No. 8545, 680 P.2d 146 [Ariz. 1984]).  In addition to the factors above, the court may also consider any other reason deemed appropriate.  


The annotations to these rules cite two additional resources to assist the court in making decisions under Section 25-321 of the Arizona Revised Statutes: (i) The American Bar Association Standards of Practice for Lawyers Representing Children in Custody Cases, adopted August 2003, and (ii) The National Conference of Commissioners on Uniform State Laws 2005 draft of the Representation of Children in Abuse and Neglect and Custody Proceedings Act.


Regarding payment of the child's counsel, in J.A.R. v. Superior Court, the court concluded that, unlike the juvenile court, the domestic relations court had no authority to compensate the minor's counsel. 877 P.2d 1323, 1329 (Ariz. Ct. App. 1994).  Therefore, in order for the child to be represented by independent counsel, either one or both of the parents had to agree to pay the fees and expenses of counsel for the child or obtain pro bono representation for the child.  


Alternatively, the court must find that a child has been the victim of child abuse or neglect as defined in Section 8-201 of the Arizona Revised Statutes, thereby bringing the action within the mandatory counsel appointment provisions of Section 8-221 of the Arizona Revised Statutes. See Ariz. Fam. Law Proc. R. 10(G) (“The court shall not appoint a best interests attorney, a child’s attorney, or a court-appointed advisor from a state or county-funded juvenile dependency roster unless the court finds that a child may be the victim of child abuse or neglect as defined in A.R.S. § 8-201.”).

Appointment of Counsel: discretionary Qualified: no