1

“For Better or For Worse”State Bar of Arizona

American Academy of Matrimonial LawyersJanuary 28, 2010

“For Better or For Worse”State Bar of Arizona

American Academy of Matrimonial LawyersJanuary 28, 2010

Rules Update

Arizona Rules of Family Law Procedure,

Protective Order Procedure, and Evidence

By Hon. Mark W. Armstrong

Rules Update

Arizona Rules of Family Law Procedure,

Protective Order Procedure, and Evidence

By Hon. Mark W. Armstrong

Arizona Family Law Rules Handbook (West 2009)

3

State Bar of ArizonaFamily Law Practice and Procedure

Committee

Arizona Court Rules Forum

http://www.dnnsupremecourt.state.az.us/AZSupremeCourtMain/AZCourtRulesMain/CourtRulesForumMain/tabid/89/Default.aspx

2010 ARFLP Amendments

In R-08-0031, the Supreme Court adopted amendments to Rules 74, 76, 79 and 97, Forms 2, 4, 5, 7 and 8, and a new Form 16, effective January 1, 2010. These changes were proposed by the State Bar of Arizona.

Amendment of Rule 74. Parenting Coordinator

• Changes the language of paragraph J of the rule to allow parties to object or request a hearing “not later than 10 days after the date of filing of the court’s order.”

• Adds sentence to comment to clarify that the amendment does not preclude a party from filing an objection to a recommendation before the court acts.

Amendment of Rule 76. Pretrial Procedures

Adds subdivision 6 to paragraph C stating that “[t]he parties may comply with this paragraph by using the form of pretrial statement provided in [new] Form 16.”

Amendment of Rule 79. Summary Judgment

Changes the response and reply times

to 30 and 15 days, respectively, to be consistent with recent changes made to the Rules of Civil Procedure.

Amendment of Rule 97. Family Law Forms

• Amends Forms 2, 4, 5, 7, and 8 to comply with HB 2505, passed by the legislature in 2008, concerning medical insurance for children.

• Also adds new Form 16. Pretrial Statement

Proposed 2011 ARFLP Amendments

R-09-0042, filed by the State Bar of Arizona, proposes changes to Rules 47, 67, 69, 74, 78 and a new Rule 5.1. The State Bar proposes an effective date of January 1, 2011.

Proposed New Rule 5.1 Addresses simultaneous dependency and custody proceedings.

According to the petition, “[t]hese types of cases involve similar fact patterns and repetitive evidence. The rule provides for the possibility of consolidation of dependency and custody proceedings at the discretion of the juvenile division.”

Proposed New Rule 5.1

“Consolidation of these cases is left to the discretion of the juvenile division. Prior to the submission of this rule, no guidance existed for the situation of simultaneous custody and dependency actions. This rule provides guidance and allows the court to more expeditiously handle these types of cases.”

Proposed Amendment of Rule 47. Temporary Orders

Proposes to add reference to A.R.S. § 25-415 (Custody by nonparent) in

paragraph A

Proposed Amendment of Rule 67. Mediation, Arbitration, etc.

Adds language to subdivision (B)(1)(a) requiring mediated agreements to comply with Rule 69 and provides that the parties shall acknowledge that: a) the settlement was voluntary and without undue influence after full disclosure of all relevant facts and information, and b) the agreement is intended to be binding and is fair and equitable.

Proposed Amendment of Rule 67. Mediation, Arbitration, etc.

Where children are the subject of an agreement the proposal requires the parties to confirm that the agreement is in the best interests of the minor children.

Proposed Amendment of Rule 67. Mediation, Arbitration, etc.

Adds new subdivision B(1)(b), which sets forth the requirements for appointment of active judges pro tempore to serve as private mediators. Authorizes court to appoint a judge pro tem as mediator “upon request of the parties.” The addition requires the judge pro tempore to submit an affidavit stating that the judge pro tempore is in good standing.

Proposed Amendment of Rule 67. Mediation, Arbitration, etc.

The rule further provides that the order appointing the judge pro tempore as mediator may authorize the approval of binding agreements, and authorize the judge pro tempore to sign any decree conforming to the agreements of the parties. Pursuant to this addition, judges pro tempore may be paid for their mediation services, but must not seek remuneration for the approval of agreements or the execution of decrees.

Proposed Amendment of Rule 69. Binding Agreements

Proposes that an agreement is valid and binding if

1. the agreement is in writing, or 2. the terms of the agreement are set

forth on the record before a judge, commissioner, judge pro tempore, court reporter, or other person authorized by local rule or Administrative Order to accept such agreements, or

Proposed Amendment of Rule 69. Binding Agreements

3. the terms of the agreement are set forth on any audio recording device before a mediator or settlement conference officer appointed by the court pursuant to Rule 67.

Proposed Amendment of Rule 69. Binding Agreements

Also proposes to add a new paragraph B providing presumption that agreements under rule are valid and binding and . . . .

Proposed Amendment of Rule 69. Binding Agreements

. . . . establishing that the burden of proof in challenging an otherwise valid and binding agreement lies with the party challenging the agreement.

Proposed Amendment of Rule 74. Parenting Coordinator

Proposes to amend paragraph E by adding the following sentence:

Counsel are not permitted to attend parenting coordinator meetings unless agreed to by the parties and the parenting coordinator, or ordered by Court.

Proposed Amendment of Rule 78. Judgments; Costs; Attorneys’ Fees

Proposes to add new paragraph E and corresponding comment to clarify that the procedure governing offers of judgment in civil cases under Civil Rule 68 do not apply in family law proceedings.

2010 Amendments to Arizona Rules of Evidence

Rule 408 (R-08-0035)—Evidence of Compromise and Offers to Compromise

New Rule 502 (R-09-0004)—Modeled after Fed. R. Evid. 502— designed to resolve disputes concerning inadvertant and voluntary disclosures.

Both effective January 1, 2010

Domestic Violence Rules

The Arizona Rules of Protective Order Procedure (ARPOP) were adopted by the Supreme Court

and became effective January 1, 2008.

2009 DV Legislation and Rule Change

SB 1088 – Amends § 13-3601(A)

Effective Sept. 30, 2009

2009 DV Legislation and Rule Change

Adds “romantic or sexual

relationship”

2009 DV Legislation and Rule Change

Four Factors MAY Be Considered

Type of relationship

Length of the relationship

Four Factors MAY Be Considered

Frequency of the interaction

between the victim and the

defendant

Four Factors MAY Be Considered

If the relationship has terminated, the length of time since the

termination

Four Factors MAY Be Considered

Rules Changed to Reflect Change

• The Supreme Court has amended ARPOP 6(C)(3)(b)(6) on an emergency basis to add this relationship to the OP rule, effective September 30, 2009. See R-09-0026.

New Petition

[ ] Romantic or sexual relationship (current or previous)

Dating but not a romantic or sexual relationship

New Petition

Proposed 2011 ARPOP Amendments

• R-10-0017 proposes an amendment of Rule 4(B)(5)(b) that would mandate transfer of ex parte limited jurisdiction court protective orders to superior court when the protected party is the child of the defendant or a person who is subject to a custody, parenting time or visitation order.

• Proposes an effective date of January 1, 2011.