Representing the Child as Best Interests Attorney

by Scott David Stewart
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In 2007, Patricia Aksamit filed for divorce from husband Greg Krahn in Maricopa County Superior Court. The couple had two minor children together, ages five and eight. Child custody was a contested issue--both parents sought sole legal custody with parenting time going to the other spouse.

During the divorce proceedings, the family court appointed a Best Interests Attorney (BIA) for the children. Appointing a BIA was well within this court's discretion. Simply stated, under Arizona law the BIA's job is to "represent the minor children's best interests."  No more, no less.

As a family law attorney in a representative capacity, the Best Interests Attorney does not testify as a witness. She is not sworn in, as the witness-spouses are. She doesn't give testimony on "her knowledge and experience" of the child's family or as an expert on family dynamics generally. But in Aksamit v. Krahn, that is exactly what the BIA did. Why? Because the court specifically told the BIA to "give me a report." 

After the BIA's oral report was given, the Aksamit court ruled in favor of Patricia. She would get child custody, and Greg would get parenting time.

Greg wasted no time in filing his appeal. He argued that the family court erred when it relied on testimony from the BIA. Furthermore, Greg argued that the error was so prejudicial to his case that the judge's order should be vacated. On March 18, 2010, the appellate court agreed with Greg and vacated the custody and parenting order. The parties would have to return to the trial court and re-litigate those issues.

Domestic disputes are often contentious, but mishandling the Best Interests Attorney was costly for both parties--they paid in legal fees, stress, instability, and time.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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