A Minor’s Right to Be Heard in Child Custody
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 these issues.
Facts and Procedure
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. It 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 children did not participate in this Special Action.
The guardian ad litem for Klahr brought the matter to the Arizona Supreme Court.
Child’s Right to Participate in an Appeal
Guardian ad litem Klahr argued that J did not have the chance to be heard before the Court of Appeals. 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.
The Supreme Court found that this 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 that 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.
Guardian Ad Litem in Special Action
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 to be heard on the matter.
Chris Hildebrand wrote this article to ensure everyone has access to information about family law in Arizona. Chris is a divorce and family law attorney at Hildebrand Law, PC. He has over 24 years of Arizona family law experience and has received multiple awards, including US News and World Report “Top Arizona Divorce Attorneys”, Phoenix Magazine “Top Divorce Law Firms”, and Arizona Foothills Magazine “Best of the Valley” award. He believes the policies and procedures he uses to get his clients through a divorce should all be guided by the principles of honesty, integrity, and, quite frankly, actually caring about what his clients are going through in a divorce or family law case. In short, his practice is defined by the success of his clients. He also manages all of the other attorneys at his firm to make sure the outcomes in their clients’ cases are successful as well.
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