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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, especially where 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 their daughter may have been sexually abused by Mr. Hays. Dr. Moran recommended to the court that their daughter visit a therapeutic clinician to provide counseling.
Excluding Testimony in an Arizona Child Custody Case
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 appointed him.

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. It ordered 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.

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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 actually 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.

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.

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 determinations.
Excluding Testimony in an Arizona Child Custody Case
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 monetary 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 necessarily 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 sanctions were not necessary to vindicate the court’s authority.


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

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