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Right of Guardian ad Litem to be Heard in a Special Action Appeal in Arizona

Posted on : January 10, 2017, By:  Chris Hildebrand
A Minor’s Right to Be Heard in a Child Custody Case

When an attorney is appointed for a child in a parental rights case, the attorney represents the child’s interests before the family court. If the matter goes up on Special Action, should the child be joined as a real party in interest? Should the appointed attorney represent her?

In Klahr v. Court of Appeals of State, Div. One, 654 P.2d 1 (1982), the Arizona Supreme Court addressed the issue of the right of a Guardian ad Litem to be hearing in a Special Action appeal in Arizona

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Guardian ad Litem’s Right to be Heard in a Special Action Appeal of a Child Custody Order

Mrs. Rudman and Mr. Silver were the parents of three minor children, D, J and M Silver. Mrs. Rudman divorced Mr. Silver and married R. Rudman. In 1981, Mrs. Rudman and R. Rudman asked the court to terminate the parental rights of Mr. Silver.

They also requested that the court appoint an attorney to represent the children. In October 1981, the court held a hearing on the petitions.

After the hearing, the court dismissed the petitions for dependency and termination of parental rights.

The court granted Mrs. Rudman custody of J and D. Mr. Silver got custody of M.

Mr. Silver appealed to the Court of Appeals, but the appeal was dismissed as untimely.

He then petitioned for Special Action in the Court of Appeals. That court accepted jurisdiction and held that the order of the superior court was void for want of jurisdiction.

The Guardian ad Litem for the children did not participate in the Special Action appeal of the trial court’s child custody orders.

The guardian ad litem appealed the matter to the Arizona Supreme Court.

Child’s Right to Participate in an Arizona Appeal Through a Guardian Ad Litem

A Minor’s Right to Be Heard in a Child Custody Case in Arizona.

The Guardian ad Litem for the child argued that J did not have the chance nor right to be heard before the Court of Appeals in a child custody case.

He claimed that J was a real party in interest and should have been joined as a party to the action in the Court of Appeals case.

The Supreme Court found the situation resulted from a misunderstanding between attorneys.

Silver’s attorney served a copy of the petition on the attorney who had represented the children below. That attorney did not file a response or appear in the Court of Appeals on behalf of the children.

He felt that since the children had not been made parties to the action in the Court of Appeals, he should not appear.

Silver’s attorney believed the children had been made parties by listing the juvenile court case caption.

He argued that listing the case number satisfied the requirement of joining all real parties in interest without violating the statute or rules.

The Arizona Supreme Court held that children can be named in the caption of a Special Action. To preserve the anonymity of the children, the caption may refer to the children as “child or children in ____ County Juvenile Action No. ___.” All parties are then on notice that the child or children are parties in the Special Action.

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Special Action Appeals are a Title 8 Proceeding in Arizona

The Court considered whether counsel appointed for a child in a juvenile proceeding may represent the child in a Special Action.

It ruled that an attorney can represent a minor in all Title 8 proceedings. This includes a Special Action.

The Court ruled that the interests of J were not represented in the proceeding before the Court of Appeals.

It found that she was a real party in interest and should have been joined in the action.

It ruled that she must be granted the right to respond to the petition filed in the Court of Appeals.

The Supreme Court ordered that the Court of Appeals retain jurisdiction of the appeal and provide J the opportunity and the right to be heard on the matter.

If you have questions about a minor’s right to be heard in a child custody case in Arizona, you should seriously consider contacting the attorneys at Hildebrand Law, PC. Our Arizona child custody and family law attorneys have over 100 years of combined experience successfully representing clients in child custody and family law cases.

Our family law firm has earned numerous awards such as US News and World Reports Best Arizona Family Law Firm, US News and World Report Best Divorce Attorneys, “Best of the Valley” by Arizona Foothills readers, and “Best Arizona Divorce Law Firms” by North Scottsdale Magazine.

Call us today at (480)305-8300 or reach out to us through our appointment scheduling form to schedule your personalized consultation and turn your Arizona child custody or family law case around today.

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