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. These situations include "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). 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.

 

In J.A.R. v. Superior Court, 877 P.2d 1323 (Ariz. Ct. App. 1994), the court concluded that, unlike the juvenile court, the domestic relations court had no authority to compensate the minor's counsel. 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.

Appointment of Counsel: discretionary Qualified: no