## Facts

- Mother petitioned to dissolve the marriage and initially sought joint legal custody with primary physical custody of the parties’ two minor children; Father sought sole legal custody with parenting time for Mother.
- Before trial, Mother changed her request to sole legal custody with parenting time for Father.
- The family court appointed a Best Interests Attorney (BIA) for the children under Arizona Rule of Family Law Procedure 10.
- The appointment order stated the BIA would participate as an attorney in litigation, but “shall not submit a report or testify in court.”
- At trial, only Mother and Father testified under oath.
- At the outset of trial, the court asked the BIA to “give me a report,” and the BIA orally described interviews and interactions with the parents and children and recommended sole custody to Mother with parenting time to Father.
- The court awarded Mother sole custody and granted Father parenting time, and its written findings repeatedly referenced the BIA’s oral “report” and recommendations.

## Issues

1. What limits does Arizona Rule of Family Law Procedure 10 place on a Best Interests Attorney’s role in custody litigation?
2. Whether the court violated due process by eliciting and relying on the BIA’s unsworn factual “report” and recommendations when the BIA was not a witness and was prohibited from reporting or testifying.

## Decision

- The court held the trial court improperly expanded the BIA’s role by treating the BIA as a quasi-witness and fact reporter.
- The court held the trial court’s reliance on the BIA’s unsworn, untested factual statements and recommendations violated Father’s due-process rights.
- The court vacated the custody portion of the decree and remanded for a new custody trial consistent with Rule 10’s limits on a BIA.
- The court affirmed the remaining portions of the dissolution decree not dependent on the improper use of the BIA’s “report.”

## Legal Principles

- A Best Interests Attorney under Arizona Rule of Family Law Procedure 10 acts as an attorney-advocate in the litigation, not as a witness.
- A BIA may participate through ordinary attorney functions (presenting admissible evidence through witnesses and exhibits, examining and cross-examining witnesses, and making arguments) but may not submit reports or testify.
- Custody determinations must be based on admissible evidence subject to oath and cross-examination; reliance on unsworn factual material outside the evidentiary process violates due process.
- When a custody ruling is materially influenced by improper, non-evidentiary information from a BIA, the error is not harmless and requires vacatur and a new custody trial.

## Conclusion

The custody order was set aside because the trial court relied on a best-interests attorney’s unsworn oral “report,” contrary to Rule 10 and basic procedural fairness; the case was remanded for a new custody trial with the BIA limited to an advocate role.


Aksamit v. Krahn, 227 P.3d 475 (Ariz. Ct. App. 2010)