Logo
Call Now(480)305-8300

Excluding Testimony in an Arizona Child Custody Case

Posted on : January 11, 2017, By:  Christopher Hildebrand
Excluding Testimony in an Arizona Child Custody Case

Excluding Testimony in an Arizona Child Custody Case

Arizona courts have authority to impose contempt sanctions when parties disobey the court’s rulings. Those sanctions must be drawn as narrowly as possible, particularly when a third party’s interests are involved. In a custody action, the best interests of the child are paramount. Is it appropriate for the court to sanction a parent by refusing to admit the testimony of the child’s therapist at trial? In Hays v. Gama, 67 P.3d 695 (2003) the Arizona Supreme Court addressed these issues.

Facts and Procedure

Mrs. Hays filed for divorce from Mr. Hays. The couple had a five-year-old daughter, and the child custody dispute was bitter. The court-appointed a psychologist, Dr. Moran, to perform a custody evaluation.

Mrs. Dutton, a forensic interviewer, told Dr. Moran that Mr. Hays may have sexually abused their daughter. Dr. Moran recommended to the court that their daughter visit a therapeutic clinician to provide counseling.

The court-appointed Diana Vigil, Dr. Moran’s spouse, as the child’s therapeutic counselor. Both parents agreed that Dr. Vigil should not serve as the daughter’s counselor because of possible conflicts of interest with Dr. Moran. Mr. Hays suggested Dr. Yee and the court assigned him.

Arizona Child Custody Case: Eliminate Testimony.

Arizona Child Custody Case: Eliminate Testimony.

Mrs. Dutton told Mrs. Hays that Daughter would be better off with a female therapist. Therefore, Mrs. Hays moved for reconsideration of the appointment of Dr. Yee. Mrs. Dutton recommended Mrs. Livingston, whom she called “one of the finest therapists in Maricopa County.” The court denied her motion.

Despite the court’s ruling, Mrs. Hays began taking the child to Mrs. Livingston for counseling, not Dr. Yee. When Mr. Hays found out, he moved for sanctions against Mrs. Hays. Everyone agreed that it would not be in the daughter’s best interest to change counselors. For that reason, Mr. Hays did not request that the court order Mrs. Hays to take the daughter to Dr. Yee.

At the sanctions hearing, the court found that Mrs. Hays intentionally violated the Court order. It held her in contempt. The court imposed four sanctions. The court required Mrs. Hays to pay all of the counseling fees and Mr. Hays’s attorney fees. It also ordered that Mrs. Livingston could not testify in the custody proceedings. Last, the court ordered that mental health professionals could not use Mrs. Livingston’s records as a basis for their opinions.

Dr. Moran wrote to Mrs. Hays’ attorney that the standard of practice required him to obtain records and interview the therapist. He told her that the order was contrary to the best clinical practices. Mrs. Hays moved for reconsideration of the sanctions excluding the opinions of Mrs. Livingston.

The superior court denied the motion for reconsideration. Mrs. Hays filed a special action petition in the court of appeals, but it declined jurisdiction. Mrs. Hays petitioned the Arizona Supreme Court for review. It granted the petition for review.

 

Contempt Sanctions

The superior court cited Rule 37(b)(2) of the Arizona Rules of Civil Procedure as a basis for excluding Mrs. Livingston’s testimony. However, the Supreme Court found, the lower court imposed the sanctions under its inherent contempt power. The only basis for the sanctions was Mrs. Hays’ refusal to comply with the order appointing Dr. Yee as the therapist.

The superior court explicitly stated that its decision to exclude Mrs. Livingston’s records was to punish Mrs. Hays’ noncompliance with the order appointing Dr. Yee.

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.
Google User
Google User
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.
A Google User
A Google User
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
A Google User
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

Limits of Contempt Sanctions

The Arizona Supreme Court turned to the question of whether the superior court abused its discretion. It noted that a court should impose the smallest sanctions that are adequate to achieve the desired end. This is especially true when a contempt sanction impacts an innocent third party.

Excluding Testimony in an Arizona Child Custody Case.

Excluding Testimony in an Arizona Child Custody Case.

Here, the child is impacted. In a child custody case, Arizona law mandates that the superior court make its determination “in accordance with the best interests of the child.” The child’s best interest is the most important consideration in custody decisions.

The Court looked at whether the sanctions the lower court imposed interfered with its duty to consider the child’s best interests. The superior court imposed four contempt sanctions here. The two monetary sanctions were specifically tailored to address the issue of Mrs. Hays’ contempt. These financial sanctions did not interfere with the court’s obligation to consider the best interests of the child in determining custody. The two evidentiary sanctions are a different story. They excluded the testimony and notes of the daughter’s therapeutic counselor from consideration both at trial and by the custody evaluator.

When custody of children is involved in a court proceeding, the trial court must hear all competent evidence. Any contempt sanction excluding evidence in a child custody dispute necessarily conflicts with these overriding principles.

In this case, the two evidentiary sanctions undoubtedly impacted the court’s ability to determine the child’s best interests. The testimony and records of the child’s therapist are relevant to the custody proceedings. The sanctions prevent the court from hearing potentially significant information in the custody determination. The court’s custody evaluator, Dr. Moran, indicated that “best clinical practices” required that he have access to this information. Under these circumstances, the lower court erred in imposing the two evidentiary sanctions. These penalties were not necessary to vindicate the court’s authority.

Disposition

The Arizona Supreme Court vacated the exclusionary sanctions imposed by the superior court. It affirmed the monetary sanctions.



As Seen on CBS News, ABC News, NBC News, and Fox News

Arizona Estate Planning Attorneys, PC As Seen in the News.

Arizona Estate Planning Attorneys, PC As Seen in the News.


What’s Hot – Blog