a reference guide to the new family court rules · pdf filea reference guide to the new family...

w w w. m y a z b a r. o r g42 A R I Z O N A AT T O R N E Y F E B R U A R Y 2 0 0 6

by now that the Arizona Supreme Courthas approved new Arizona Rules of FamilyLaw Procedure effective January 1, 2006.The new rules apply to all family courtcases filed after that date, as well as to allcases pending at that time with two excep-tions. Under the first exception, Rule 2(B)that relaxes the Arizona Rules of Evidenceis inapplicable to family law cases filedprior to January 1, 2006 absent stipulationto its applicability. The second exception

A Reference Guide to theNew Family Court Rules

applies to pending cases in which disclo-sure was previously made pursuant to Rule26.1, Arizona Rules of Civil Procedure(ARCP). In such cases, no further disclo-sure is required beyond the duty to sea-sonably supplement the earlier disclosure.

The new family court rules weredesigned to reduce the harm to families andchildren that is inherent in civil litigation, tomore closely fit the needs of families in con-flict, to simplify and reduce unnecessarydelays in court proceedings, and to bring aless adversarial and more problem-solvingapproach to family disputes.

Although the Committee on Rules ofProcedure in Domestic Relations Caseswas established by the Supreme Court toaccomplish these goals by drafting newrules, the Committee had no desire tomake wholesale changes to the civil rulessimply for the sake of change. Indeed,years of research, debate, and drafting bymany eminent legal scholars at the nation-al and state levels went into the creationand evolution of the civil rules. Much dis-cussion by the Committee focused on theneed to stay true to concepts in the civilrules where it made sense to do so, and to

A Reference Guide to the New Family Court Rules

BY HON. NORMAN J. DAVIS

We all know

(Rule 44), discovery procedures(Rules 51–65), judgments, sum-mary judgment, declaratoryjudgments, entry of judgment,findings of fact, motions for newtrial, motions to alter or amend ajudgment or decree, motions tocorrect mistakes, and motions forrelief from a judgment or decree(Rules 78–85).

Although there is no substi-tute for studying the new rules indetail until they are as familiar asthe civil rules, this task will bemade easier by the parallel natureof the civil and family court rules.Moreover, where significantchanges have been made, thecorresponding civil rule oftenserved as the template.

It is important to recognizethat significant flexibility wasintentionally drafted into therules. The Committee recog-nized from the beginning thatnew Family Court Rules mustmeet the needs of both the largeurban courts, as well as thesmaller rural courts. With theburgeoning population of self-represented litigants bringingtheir cases to Family Courtsstatewide, the Committee alsounderstood the need to draft

rules to efficiently hear cases filed bythose unfamiliar with legal process, aswell as to preserve legal procedures thatbetter meet the rigorous demands ofmore complex cases with attorney repre-sentation. Thus, some rules provide for avariety of options for the court and/orthe parties to utilize. Furthermore, cer-tain rules have been made permissive toaccommodate the varying needs andresources available in each court in thestate. In addition, an effort was made bythe Committee to examine and adoptsome of the best practices and procedures

w w w. m y a z b a r. o r g 43F E B R U A R Y 2 0 0 6 A R I Z O N A AT T O R N E Y

currently in use throughout the state.Counsel and parties in some counties mayexperience significant change in proce-dures adopted into the statewide rulesfrom the best practices currently in placein another county, with little or nochange being noticeable in the county oforigin.

To accommodate the inevitable errorsand inconsistencies in a project of thismagnitude, the Arizona Supreme Courtformed a Family Law Rules ReviewCommittee on November 29, 2005, torecommend revisions and amendments tothe new rules over the next two years.

So if many of the civil rules survivedintact or with only minor changes, and ifthe job of refining the new rules won’t befully accomplished for a number of years,what’s so great about these new rules?Just what will change in the near futurefor litigants, attorneys and the court oper-ating under the new procedures that willimprove the lives of families and childrenin Arizona?

At the risk of oversimplifying andignoring more important concepts in thenew rules, and with the knowledge thatthe rigorous academic discussionsengaged in by the Committee over thelast two years in drafting the rules, indi-cate that it is unlikely that all members ofthe Committee would agree on whatchanges are most significant, let me haz-ard a few observations in this area.

In this context it might be helpful tolook at how the new rules may affect fivesegments of a family law case:1. At the start of a case when pleadings

are prepared, filed and served;2. When the case is uncontested because

of full agreements reached or adefault entered;

3. During pre-trial procedures prepara-tory to trial;

4. At trials and evidentiary hearings; and5. Filing of post-decree and post-judg-

ment proceedings.

Hon. Mark W. Armstrong is Chair of TheCommittee on Rules of Procedure in Domestic

Relations Cases, and served two separate termsas Presiding Judge of the Family Court in

Maricopa County.

Hon. Norman J. Davis is currently thePresiding Judge of the Family Court in MaricopaCounty, and served as a Work Group Chair and

Committee Member of the Committee on theRules of Procedure for Domestic Relations Cases.

reap the concomitant benefit of literallythousands of past and future appellatedecisions interpreting these rules.

Consequently, it will come as no sur-prise that significant blocks of the civilrules are left unchanged in the new familylaw rules. Others have only been slightlymodified.

New family law rules that heavily relyon the civil rules include those governingthe computation of time (Rule 4), motionsto dismiss (Rule 32), motion practice(Rule 35), parties (Rules 36–39), serviceof process (Rules 40–43), entry of default

Limited Scope RepresentationRule 9(B) now specifically authorizes lim-ited scope representation. For the first timean attorney will be authorized to representa party with respect to only a portion of afamily court case by the filing of a writtenform Notice of Limited ScopeRepresentation (Rule 97, Form 1) statingthat the attorney and the party have a writ-ten agreement for the attorney to providelimited scope representation and specifyingthe matter or issues for which representa-tion will be provided. Such repre-sentation will make the attorney subject toservice of all documents on behalf of theclient, but will not thereby extend theattorney’s responsibility to represent theclient in additional matters not specified inthe limited scope agreement. At the con-clusion of the representation, the attorneymay withdraw from representation by fil-ing a Notice of Withdrawal of Attorney withConsent signed by the attorney and theparty. If consent of the party is not firstobtained to withdraw, the withdrawal isaccomplished by motion to the court. Thewithdrawal shall be permitted if the partyfiles no objection within 10 days of service.If an objection is filed, a hearing on theobjection is limited to the issue of whetherthe task agreed to by the attorney has beencompleted. This is an experimental ruleand will expire on January 1, 2009, unlessextended.

Third-Party PracticeThe detailed counterclaim, cross-claim andthird party practice rules of Rules 13 and14, ARCP have been substantially revisedin favor of a more basic rule. Rule 33 elim-inates cross-claims altogether, and simplyallows a party in a family law case to “file astatutory claim against another party, oragainst a third party arising out of or relat-ed to the subject matter of the action bythe filing of a separate claim, counter-claimor third party petition, as appropriate with-out prior leave of court provided that saidfiling will not unduly delay or prejudice theadjudication of the rights of other partiesto the action.” All other claims andrequests for joinder, intervention, or inter-pleader require court approval.

Sensitive Data FormTo reduce the potential for identity theft,Rule 43(G) requires a party filing a familylaw case to omit or otherwise redact sensi-tive data (social security numbers, bankaccount numbers, credit card numbers,and other financial account numbers) fromthe filed document, and file any such datarequired by the court on a separateConfidential Sensitive Data Form (Rule97, Form 3).

Service of ProcessIn Title IV-D cases, Field LocateInvestigators employed by the Departmentof Economic Security’s Office of SpecialInvestigations are now authorized to serv-ice process in IV-D actions initiated by theState. This change was included to reducethe delay occasioned when a party movedor avoided service between the time a FieldInvestigator located the party and anauthorized process server actually servedthe party. Under Rule 40(E) the FieldInvestigator can effect personal serviceimmediately.

Rule 41(C)(2) now authorizes personalservice upon a party located within thestate by certified mail, signed returnreceipt, or by any other national courierservice that provides delivery and signatureconfirmation. Such service is only effectiveif the return receipt or signature confirma-tion is signed by the party to be served.Rule 42(C) also permits personal serviceupon an out-of-state party by nationalcourier service in the same manner.

Rules 41(M) and 42(D) provide thatservice by publication does not confer inpersonam jurisdiction on the court todetermine issues that traditionally requiredpersonal jurisdiction to adjudicate (pater-nity, child support, spousal maintenance,division of marital property). These rulesdistinguish family law cases from the con-trary holding in civil cases set forth inMaster Financial, Inc. v. Woodburn, 208Ariz. 70, 90 P.3d 1236 (App. 2004) ininterpreting Rule 4.1, ARCP.

Uncontested CasesDefault Judgments by MotionMotions to enter judgment by defaultunder Rule 55(b)(1)(ii), ARCP have not



Filing and Serving a Family Law CaseAlthough most of the rules applicable tofiling and serving a family court caseremain consistent with civil rules and con-cepts, there are a few significant changesthat may be important to a family lawattorney or party.

Petitions v. MotionsHistorically, there has been some confu-sion whether to caption a pleading as a“Petition”, “Motion”, or even an“Application”. While this may be a minordistinction, Rules 3 and 24 seek to avoidfurther confusion in this area by clearlydefining a “Petition” as an “initial pleadingthat commences” either a family law caseor a post-decree matter. A “Motion” is awritten request made after a petition isfiled. Thus, a party would properly file a“Petition for Modification of Custody”and a “Motion for Temporary Orders.”

Protected and Unpublished AddressesIn preparing a case for initial filing it maybe important to protect a party’s addressfrom disclosure because of the threat ofharm to the party or the party’s minorchild. Rule 7 allows a party “who reason-ably believes that physical or emotionalharm may result to the person or a minorchild” to omit the party’s address from thepleadings or motion to be served and file aseparate Request for Protected Address form(Rule 97, Form 15), and proposed form oforder with the court. If approved, subse-quent service on the person whose addressis protected is accomplished by deliveringthe documents to be served to the Clerkand paying the appropriate fee. The Clerkis required to mail the documents to theprotected address by regular first-class mailand file a verification of the mailing. Aparty requesting the protection of this pro-cedure is under a continuing duty to pro-vide the clerk a current and correct mailingaddress for service until the case is con-cluded with the entry of a final appealableorder, judgment or decree and the time forappeal has expired or until the protectedperson’s address becomes known by thefiling of a written notice of the address inthe court file with a copy sent to all parties.

been heavily used in the past, probablybecause the civil rules only permit their usein the limited circumstances when the par-ties had no minor children, owned no realestate, sought no spousal maintenance,had debt of less than $10,000 and equityin community property less than $15,000.These requirements are eased somewhatunder new Rule 44(B)(1)(b) to eliminatethe property and debt restrictions. Suchmotions now require only that the partieshave no minor children and waive anyright to spousal maintenance.

Default Hearings Following Service by PublicationTraditionally under Rule 55(f), ARCP,parties have been required to obtain andfile a court reporter’s written transcript fol-lowing a default hearing when serviceoccurred by publication. This created anadditional expense and procedure for theparties regardless of whether the transcriptwas ever utilized. It also required the courtto arrange for the presence of a courtreporter or make arrangements to tran-scribe the electronic record from all suchhearings. New Rule 44(F) will allow anelectronic record to be filed in lieu of awritten transcription.

Consent DecreesRule 45 will allow parties that agree to allof the terms of a family court settlement tosubmit a Consent Decree, Order orJudgment together with the necessary sup-porting documents to finalize the casewithout a court hearing after the passageof the applicable time periods and paymentof the appropriate appearance fees.Maricopa County has utilized a similarprocess for many years authorized by localrule that included the requirement of alengthy stipulation requiring multiple ini-tials and signatures. The new process willnot require a separate stipulation, but willrequire the parties’ signatures on theDecree, Order or Judgment be notarizedor signed in the presence of a clerk of thecourt, and contain the specific informationlisted in Rule 45.

Involuntary DismissalDepending upon the policies and practices


adopted in each county, the new rules mayrequire parties and counsel to addressissues and prepare each case earlier than inthe past. If the parties fail to request a trial,hearing, or conference within 120 days offiling, Rule 46(A) allows the court toschedule the case for dis-missal 60 days later unlesssuch a request is filed. Thisrule should encourage theparties to address andresolve issues earlier andfacilitate earlier interven-tion by the court. A signif-icant number of family lawlitigants voluntarily dis-miss their case, or allowthe court to dismiss it as aresult of reconciliation orsimilar reason. This rulewill also allow such partiesto exit the system earlierand remove further stressto the family caused by apending litigation.

Pretrial ProceduresThe most fundamental rule changes haveoccurred in the procedures that direct eachfamily law case prior to trial. It is duringthis time period that the lives of the partiesand their children may be the most unsta-ble and uncertain. Not surprisingly, this isalso the time when more damage may bedone to the family if the case languisheswithout resolution or court intervention.

Temporary OrdersRequests for temporary orders have longbeen a part of family court, but the civilrules give little guidance on how suchrequests should be presented and heard.Rule 47 now clarifies that any temporaryorders authorized by statute can berequested by the filing of a separate verifiedmotion. The motion is required to containthe legal and jurisdictional basis for themotion, as well as the specific reliefrequested. The practice of some self-repre-sented litigants of filing for temporaryorders without also filing a petition for per-manent relief is not authorized. A motionfor temporary orders must not separately

repeat allegations in the petition, butshould incorporate them by reference. Amotion for temporary orders will now alsobe required to include a specific proposedparenting plan if custody, parenting timeor visitation is requested, a completed

child support worksheet and disclosuredocuments if child support is sought, aspecific amount and duration for anyspousal maintenance request, and specificrequests and information for temporaryproperty, debt and attorneys’ fees relief.

Temporary Orders Without NoticeThe new rules do not include provisionsfor seeking an “emergency” order, butfamiliar concepts previously addressed inRule 65(d), ARCP are included in Rule 48as “Temporary Orders Without Notice”. Aslightly modified standard for seeking suchorders is outlined, and the procedures toseek such an order, complete with therequirement for a hearing to be held with-in 10 days of the issuance of such an order,are closely aligned with the procedures inthe civil rule.

DisclosureAn issue-dependent disclosure require-ment is incorporated in Rule 49.Disclosure of specific relevant documentsand information is required with respect toeach issue that is in dispute. In addition, allparties are required to complete a standardwritten form Resolution Statement (Rule

97, Form 4 or 5) within 40 days of the fil-ing of a response. This provision isdesigned to resolve and narrow issues earlyin the case and avoid protracted discoveryand litigation when such procedures arenot necessary. In more complex cases, if a

party believesmore detaileddisclosure is nec-essary, that partycan require com-pliance with thebroader disclo-sure require-ments of Rule26.1, ARCP byfiling a noticerequiring suchc o m p l i a n c ewithin 20 daysof a responsivepleading.

Settlement andADR

Settlement practices and alternate disputeresolution (ADR) procedures are encour-aged and expanded in rules 66 through 75,consistent with the rules’ premise thatearly intervention and opportunities forsettlement reduce harm to families. Manychanges are made in this area. For exam-ple, Rule 66(D) includes a requirementthat the parties confer to consider ADR nolater than 90 days after the first appearanceof a respondent. Rule 66(E) imposes aduty upon all attorneys and unrepresentedparties to attempt in good faith to settle oragree on an ADR process, and inform thecourt on a timely basis of their agreementsor positions on specific ADR alternatives.The rules proscribe and encourage media-tion, arbitration, settlement conferences,and other ADR processes outside of andwithin the court.

Resolution Management ConferencesThe primary proceeding for the court tomanage and resolve issues in a family lawcase is the Resolution ManagementConference (RMC) authorized by Rule76. This conference is required to bescheduled at the request of any party or itmay be set on the court’s own initiative.


The most fundamental rule changes have occurred

in the procedures that direct each family law case

prior to trial. It is during this time period that the

lives of the parties and their children may be the

most unstable and uncertain.


Two significant changes occur with theapproval of this rule that should movecases closer to resolution early in theprocess and reduce the stress on families.First, Rule 76 requires the parties andcounsel to take specific action designed toresolve or narrow issues in preparation forthe RMC. Unless there is a current orderprohibiting contact or a significant historyof domestic violence, the parties and coun-sel are required to personally meet andconfer to settle as many issues as possible atleast 5 judicial days prior to the RMC. Alsoby that date all disclosure requirementsmust be completed. Further, each party isrequired to prepare and file a writtenResolution Statement (Rule 97, Form 4 or5) detailing a specific and detailed positionthat the party proposes to resolve each dis-puted issue without argument, inflamma-tory or otherwise, in support of the posi-tion.

A second substantive change will clearlyallow the court to take a more direct andaggressive role in early settlement of issues.Rule 76(A)(3) specifically allows the courtto “determine the positions of the partieson the disputed issues and explore reason-able solutions with the parties to facilitatesettlement of the issues” at the RMC.These procedures were first piloted at theNorthwest Regional Court Center inMaricopa County three years ago, and havebeen utilized more broadly by the entireMaricopa County Family Court over thelast year with dramatic results. Using theRMC concept and other early managementprocedures included in the new rules, thetotal family court pre-decree caseload inMaricopa County has been reduced bynearly 29 percent over the last year withoutany accompanying decrease in the numberof cases filed.1 Removing these cases earlyfrom an adversarial system translates into amarked decrease in hostile court proceed-ings, and helps prevent further destructionof family relationships.

Setting a Case for TrialThe requirements of Rule 38.1, ARCPthat proscribe the procedure to schedule atrial date have been simplified. Thedetailed certifications of a Rule 38.1Motion to Set and the need for


Controverting Certificates have beenreplaced in Rule 77 with a simplifiedMotion to Set process to request a trialdate. The Motion to Set need only statewhen the case will be ready for trial, theidentifying information of the parties ortheir attorneys, the estimated time for trial,and whether the case is entitled to prefer-ence because custody is at issue. In addi-tion, the court can schedule trial dates at aResolution Management Conference or atother times determined by the court.

Trials & Evidentiary HearingsPerhaps the biggest change in the newrules affecting how trials and evidentiaryhearings are conducted occurred in therelaxation of the Arizona Rules ofEvidence. The new rules also provide someguidance with respect to the presence ofchildren in the courtroom and how thecourt conducts interviews of children.

Rules of EvidenceTraditionally, many family court proceed-ings have been conducted with a reducedreliance upon the strict application of theArizona Rules of Evidence. Rule 2(B) for-malizes this process by allowing the courtto admit all relevant evidence. Evidencemust still be excluded, however, if its pro-bative value is outweighed by the dangerof unfair prejudice, confusion of the issues,or by considerations of undue delay, wasteof time, needless presentation of cumula-tive evidence, lack of reliability or failure toadequately and timely disclose the evi-dence. Any party may opt out of thisreduced standard and return to the use ofthe Arizona Rules of Evidence by filing anotice with the court at least 45 days priorto the hearing or trial requiring strict com-pliance with all or part of the ArizonaRules of Evidence.

The need for custodians of record toauthenticate documents has also beenreduced in all family court cases by theaddition of Rule 2(B)(3). Under this rulerecords of regularly conducted activity asdefined by Rule 803(6), Arizona Rules ofEvidence, may be admitted into evidence inall cases without the custodian of therecord if the document: 1) appears com-

plete and accurate on its face; 2) appears tobe relevant and reliable; and 3) is season-ably disclosed and copies are provided attime of disclosure to all other parties.

Similarly, Rule 2(B)(4) allows the courtto consider as evidence any report, docu-ment, or standardized form required to besubmitted to the court for the currenthearing or trial if the document is eitherfiled with the court or admitted into evi-dence. This change will permit the court toconsider such documents as court-ordereddrug testing results, reports from custodyevaluators and from other experts appoint-ed by the court, conciliation servicesreports, and standard form financial affi-davits required for the hearing or trial. Thischange should reduce the occurrence ofevidentiary issues outlined in In Re Kells,182 Ariz. 480, 897 P.2d 1366 (App.1995).

Presence of ChildrenRule 11 confirms the common sensenotion that most family law practitionershave lived by for years—minor children ofthe parties should not be brought to courtwithout prior court permission.

Court Interviews of ChildrenGuidance has been provided to the court,counsel and parties with regard to inter-viewing minor children in custody andparenting time disputes. The subject ofchild interviews is limited by A.R.S. § 25-405 to ascertaining the wishes as to thechild’s custodian and as to parenting time.New Rule 12 requires that, absent a stipu-lation of the parties to the contrary, anychild interview must be recorded by acourt reporter or electronic medium. Therecord of the interview may be sealed forgood cause after considering the bestinterests of the child. The parties may alsostipulate that the record of the interviewshall not be provided to the parties. Toavoid confusion, unintended harm to achild, and due process issues, it may nowbe prudent for counsel and the parties tofully stipulate prior to any child interviewas to the scope of the interview to be con-ducted by the court, whether the inter-view will be recorded as well as the appro-priate medium of recording, and whether

the record will be sealed or provided to theparties.

Post-Decree ProceedingsA major change in the rules is the additionof Rule 74 that will now govern all post-decree and post-judgment proceedingsstatewide and replace the current patch-work of various local rules adopted overthe years to fill the gap in the civil rules.

General ProvisionsRule 91(A) is applicable to all post-decreeand post-judgment proceedings, and gen-erally requires all petitions to modify orenforce a prior family court order to beunder oath, state the nature of the pro-ceeding, the estimated time for the entirehearing, and the relief sought. All suchpetitions to modify or enforce must also setforth the pertinent portion of the priororder sought to be modified or enforced(or reference to a voluminous order that isimpractical to include verbatim), the dateof entry, and the name and location of thecourt that entered the order. All partiesretain their designation as “Petitioner” or“Respondent” in all post-decree or post-judgment proceedings, regardless of theparty filing the subsequent petition.

Orders to AppearRules 91(B) through 91(H) outline theindividualized requirements applicable toeach specific petition to modify or enforcea prior order. With respect to all such peti-tions, excepting a petition to modify a priorcustody order covered in Rule 91(D), anOrder to Appear must be included forissuance by the court.

Petitions To Modify Child CustodyRule 91(D) adopts a process to modify aprior child custody order that is closelyaligned with a procedure that has been inplace in Pima County for some time. Inaddition to the requirements listed in theRule, Petitions to Modify Child Custodymust contain a certification whether theunderlying custody order or agreementcontains a provision requiring the parties topursue mediation or other alternate disputeresolution process prior to requesting



court relief. Upon filing of the Petition toModify Child Custody, a Notice of FilingPetition for Modification of Child Custodyis issued by the Clerk to be served upon allpersons entitled to notice who arerequired to file a response or controvertingaffidavits within 20 days of service. Nosooner than 5 days after the time for filinga response expires, a party may submit aRequest for Order Granting or DenyingCustody Hearing to the assigned division.The court thereafter conducts a review ofthe submitted pleadings and affidavits todetermine if adequate cause is presented inaccordance with A.R.S. § 25-411 toschedule a hearing on the Petition. ThePetition is either denied or a conference orhearing is scheduled as appropriate.

The drafting of the Arizona Rules ofFamily Law Procedure by the Committeewas a significant undertaking involvingmany, many hours of research, draftingand redrafting, work group sessions, com-mittee meetings, discussions, debates, andsignificant travel for some members of theCommittee. While the Committee was notunanimous in its adoption of every rule,there was much more agreement than dis-agreement, and the Committee memberswere all united in the overall effort toimprove the lives of Arizona families andchildren in crisis that find themselves inthe Family Court. The new rules are prob-ably too long and undoubtedly containprovisions that will prove themselves inneed of some revision in the future. Butfor the first time in Arizona we have cometogether to manage family court disputeswith rules that are written specifically withfamilies and children in mind. We nowhave the ability to utilize the flexibility ofthese rules and improve them without sac-rificing or diluting a needed procedurebecause it may not work very well in a tort,contract or other civil dispute. The futurecan only get better from here.


1. The Maricopa County Family Court had atotal of 19,596 pre-decree cases pending atthe end of July 2004, compared to a total of13,970 such cases at the end of November2005.

endnotes

AZAT

a reference guide to the new family court rules · pdf filea reference guide to the new family...

Documents