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Can a Best Interest Attorney Testify at a Child Custody Trial in Arizona

Posted on : January 30, 2018, By:  Christopher Hildebrand
Can a Best Interest Attorney Testify at a Child Custody Trial in Arizona.

Can a Best Interest Attorney Testify at a Child Custody Trial in Arizona

Can a Best Interest Attorney Testify at a Child Custody Trial in Arizona.

Can a Best Interest Attorney Testify at a Child Custody Trial in Arizona.

The Arizona Court of Appeal in the case of Demario v. Demario had to determine, amony other things, the role of a best interest attorney in an Arizona child custody case. Christie May DeMario (“Mother”) appeals from certain rulings in the superior court’s decree of dissolution, the denial of her motion for new trial, and the award of attorney’s fees to Eric David DeMario (“Father”). For the reasons set forth below, we affirm the rulings and the judgment, as modified. Mother and Father were married in September 2011, and their daughter was born a month later. In August 2012, Mother filed a petition for legal separation, which was later converted to a petition for dissolution. The superior court appointed a best-interests attorney (“BIA”) for the child. See Ariz. Rev. Stat. (“A.R.S.”) § 25-321 (2016). Two years later, the court discharged the BIA and thereafter set a trial to determine the contested issues of legal decision-making and parenting time, child support, and reallocation of fees.

Following a one-day trial in January 2015, the superior court entered a decree of dissolution of marriage, awarding Father sole legal decision-making authority and Mother parenting time and ordering Mother to pay $400 per month in child support, $1,600 in child support arrearages and $1,600 of the custody evaluator’s fees. The court later denied Mother’s motion for new trial and awarded Father attorney’s fees of $25,000. Mother timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. § 12-2101(A)(1), (5)(a) (2016). We cite the current version of applicable statutes when no revisions material to this decision has since occurred.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
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14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
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19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
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17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

Legal Decision-Making and Parenting Time

We review the court’s legal decision-making and parenting time rulings for an abuse of discretion. In re Marriage of Diezsi, 201 Ariz. 524, 525, (App. 2002). We do not reweigh the evidence and will affirm if substantial evidence supports the court’s ruling. Hurd v. Hurd, 223 Ariz. 48, 52, (App. 2009). Mother argues the superior court erred in considering statements made by the BIA as evidence on the issue of custody. A best-interests attorney may advocate for the child and urge the court to reach a particular result based on the evidence presented. Aksamit v. Krahn, 224 Ariz. 68, 71, (App. 2010). Conversely, a best-interests attorney may not give a substantive report, however denominated, that the court relies upon as evidence. Id. at 72-74. We review the court’s interpretation of a rule of procedure de novo. Felipe v. Theme Tech Corp., 235 Ariz. 520, 524, (App. 2014).

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Hildebrand Law, PC | Voted Best of Our Valley in Arizona Foothills Magazine.

Initially, Mother argues the superior court erred in denying her February 2013 motion to strike statements made by the BIA and her November 2013 motion for recusal of the BIA. The gravamen of her complaints was that the BIA had told third parties involved in the case that Mother was mentally ill and possibly suffered from Munchausen’s Syndrome by Proxy. To the extent, Mother suggests an error in connection Mother’s opening brief largely fails to cite the record or legal authority, which could constitute a waiver of the issues raised. See ARCAP 13(a); Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137 n.2, (App. 2011). Nevertheless, given that the best interests of a child are involved, we exercise our discretion to address Mother’s arguments as best as we can discern them. See Hays v. Gama, 205 Ariz. 99, 102, (2003); In re Aubuchon, 233 Ariz. 62, 64-65, (2013).

Mother withdrew motions she had filed in February 2013 seeking recusal/removal of the BIA and a new hearing/trial based on complaints about the BIA and, thus, has waived on appeal the arguments raised in those two motions. See Amparano v. ASARCO, Inc., 208 Ariz. 370, 374, (App. 2004) (failure to raise an issue in the superior court constitutes a waiver of the issue on appeal). Decisions of the Court on temporary orders are not subject to review on appeal. See Villares v. Pineda, 217 Ariz. 623, 624-25, (App. 2008) (temporary orders not appealable).

Best Interest Attorney in Arizona.

Best Interest Attorney in Arizona..

Mother continued to argue this issue at trial, several months after the BIA was discharged, but the court made clear on the record that it did not consider the BIA’s (asserted) statements as substantive evidence or rely on them in deciding custody. Cf. Aksamit, 224 Ariz. at 73- 74. Although Mother argues the BIA’s statements “corrupted” the findings of Dr. Brian Yee (the custody evaluator) and Dr. Alvin Burstein (the independent psychiatric evaluator) on the issue of Mother’s mental health, the record simply does not bear out that suggestion. Mother also argues the superior court abdicated to Dr. Yee and Dr. Burstein its responsibility to determine the best interests of the child.

When physical custody of a child is contested, the superior court must make specific findings as to why its decision is in the child’s best interests. A.R.S. § 25-403 (2016); e.g., Nold v. Nold, 232 Ariz. 270, 273, (App. 2013). “[T]he responsibility to make the findings is the court’s alone.” Christopher K. v. Markaa S., 233 Ariz. 297, 301, (App. 2013) (citing DePasquale v. Superior Court (Thrasher), 181 Ariz. 333, 336 (App. 1995)). The court may consider an expert’s opinion, but it must weigh the evidence itself, and may not simply adopt the findings of an expert witness or delegate the best-interests determination to such a witness. Christopher K., 233 Ariz. at 301-02, (citations omitted). We presume the superior court has considered the evidence presented before making its decision. Fuentes v. Fuentes, 209 Ariz. 51, 55-56, (App. 2004) (citation omitted).

In making its best-interests findings, the superior court stated it “considered the evidence, including the demeanor of the witnesses, reviewed the exhibits as well as the case history, and considered the parties’ arguments.” In so doing, the court made independent findings, supported by the evidence presented, regarding the child’s best interests. Mother particularly challenges the court’s finding that Mother has significant mental health issues, including anti-social personality disorder and hypervigilance. See A.R.S. § 25-403(A)(5). The court gave careful consideration to the evidence regarding Mother’s mental health, and it clearly set forth the evidence the court considered to be credible on the issue. Because the record supports this finding, we find no abuse of discretion.

Mother obliquely contends the superior court erred in considering Dr. Burstein’s report because his evaluation failed to comply with the protections of Arizona Rule of Family Law Procedure 63. But Mother did not object to the report on this basis, nor does she argue how this purported failure was prejudicial. Mother does not suggest she lacked time to obtain a second mental-health evaluation, and indeed she offered Dr. D.J. Gaughan to rebut Dr. Burstein’s opinion. Mother questions Dr. Burstein’s qualifications and the scientific reliability and relevance of his report. See generally Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93 (1993); Ariz. R. Evid. 702 & cmt. to 2012 Amendment. Mother did not raise this issue in the superior court; thus, we decline to address it for the first time on appeal. See Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994).

Mother argues the superior court erred by failing to give greater weight to evidence of domestic violence, including allegedly abusive text messages Father sent in December 2011. See A.R.S. §§ 25- 403(A)(8), -403.03(B). However, although she provided more than 5,000 pages of documentation to Dr. Yee to consider in rendering his opinion, she did not provide him with the text messages. Mother and her mother testified about other alleged incidents of domestic violence, but the court did not find either of them credible. We defer to the superior court’s determinations of witness credibility and the weight to give the evidence. See Gutierrez v. Gutierrez, 193 Ariz. 343, 347, (App. 1998).

Mother suggests the superior court’s allocation of holidays is “inconsistent and ambiguous.” Mother does not clearly develop this argument in a manner that permits us to address it. See Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, 491 n.2, (App. 2007) (declining to address merits of argument mentioned in passing in opening brief).

Award of Child Support

Best Interest Attorney and Child Support in Arizona.

Best Interest Attorney and Child Support in Arizona.

Mother argues the superior court abused its discretion in awarding $400 per month to Father in child support. We review a child support award for an abuse of discretion, and the court’s application of the Child Support Guidelines de novo. Engel v. Landman, 221 Ariz. 504, 510, (App. 2009); see A.R.S. § 25-320 app. § 15 (2016). Mother disputes that Father’s Affidavit of Financial Information (“AFI”) was complete or accurate. However, because Mother did not object to admission of Father’s AFI at trial, she may not contest it on appeal. See Trantor, 179 Ariz. at 300. Mother also disputes the $338 per month childcare credit, contending the child’s daycare costs are paid by Social Security, but she does not cite the record in support. See Flood Control Dist. of Maricopa County v. Conlin, 148 Ariz. 66, 68 (App. 1985) (appellate court will disregard statements of fact that lack appropriate citation to the record and are not supported by the record); see also ARCAP 13(a)(7). Indeed, Mother conceded that Father’s records indicate he pays between $117 and $167 per week for daycare. Accordingly, reviewing the award for an abuse of discretion, we discern no error.

Mother contends she is entitled to a credit for child support paid pursuant to a temporary order from October 1, 2014, through January 31, 2015, against the $1,600 judgment for past child support during the same four-month period. Father does not dispute that the judgment was based on the superior court’s finding of current support retroactive to October 1, 2014, nor does he dispute that Mother was current on child support through the entry of the decree. On this basis, we modify the judgment to reflect the amount owed by Mother to Father in past child support is $1,367.48.

When it appointed Dr. Yee as the custody evaluator, the superior court ordered that his fees up to $2,500 would be paid by the Office of Public Defense Services, with Father paying the balance subject to reallocation. Thereafter, the parties agreed that allocation “for any and all professional and evaluator fees” would abide the trial. After trial, the superior court reallocated to Mother $1,600 of the $3,600 Father had paid to Dr. Yee based on the “unusually extensive amount of collateral documentation” Mother presented to Dr. Yee. On appeal, Mother states, without argument, that the court erred by making the reallocation. We disagree. The court had authority to allocate Dr. Yee’s fees based on the financial circumstances of the parties, and Mother has not shown the court abused its discretion in directing her to pay a portion of those fees. See A.R.S. § 25-406(B) (2016).

Lastly, Mother argues the superior court erred in denying her request to allocate to Father a portion of the fees she incurred for supervised parenting time with the child. The court concluded that Mother was responsible for the conduct that led to the restrictions imposed on parenting time. Again, deferring to the court’s determination of witness credibility and weight to give the evidence, we discern no error. See Gutierrez, 193 Ariz. at 347.

Mother argues the superior court lacked sufficient evidence of the parties’ financial resources on which to base an award of attorney’s fees. See A.R.S. § 25-324(A) (2016). We review an award of attorney’s fees for an abuse of discretion. MacMillan v. Schwartz, 226 Ariz. 584, 592, ¶ 36 (App. 2011); see also Magee v. Magee, 206 Ariz. 589, 590, (App. 2004). Both parties’ AFI’s were in evidence, and both parties testified about their finances. The court’s findings with regard to financial resources and the reasonableness of the parties’ positions were supported by the evidence, and its decision to award Father a portion of his attorney’s fees was not an abuse of discretion.

Motion for New Trial

Best Interest Attorney and Motion for New Trial in Arizona.

Best Interest Attorney and Motion for New Trial in Arizona.

Mother argues the superior court erred in denying her motion for new trial. The superior court has significant discretion to determine whether to grant a new trial, and its decision should remain undisturbed absent clear abuse of that discretion. Ariz. R. Fam. Law P. 83; Pullen v. Pullen, 223 Ariz. 293, 296, (App. 2009) (citations omitted). “An abuse of discretion exists when the record, viewed in the light most favorable to upholding the trial court’s decision, is devoid of competent evidence to support the decision.” Little v. Little, 193 Ariz. 518, 520, (1999) (internal quotation and citation omitted). Essentially, Mother contends the superior court’s legal decision-making and parenting-time order was erroneous because the court did not consider all evidence bearing on the child’s best interests. See Hays, 205 Ariz. at 103, (courts must consider all relevant evidence relating to children’s best interests in custody disputes).

However, unlike in Hays, the court, in this case, did not exclude any evidence that had an “especially significant effect” on its ability to determine the child’s best interests. It is apparent from the record that the court properly addressed the best-interests inquiry. We defer to the court’s assessment of Mother’s credibility and the weight it gave to the conflicting evidence. See Gutierrez, 193 Ariz. at 347. Accordingly, we discern no error in the court’s denial of the motion for new trial.

For the foregoing reasons, we affirm the decree as modified and the award of $25,000 in attorney’s fees to Father. In the exercise of our discretion, we deny Father’s request pursuant to A.R.S. § 25-324 for an award of attorney’s fees on appeal. As the successful party, Father is entitled to an award of costs on appeal upon compliance with Arizona Rule of Civil Appellate Procedure 21.

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