When child custody is a contested issue between parents in a domestic proceeding, whether divorce, legal separation, or some other action, the family court has the discretion to appoint any of the following persons to protect the child’s interests:
There is no cross-over between the court-appointed attorneys for child custody, or the advisor, and no sharing of duties. Of the three, the Court-Appointed Advisor need not be an attorney and may testify as a witness and report on child matters to the court. In fact, the Best Interests Attorney and the Child’s Attorney can call the advisor as a witness and cross-examine him or her over the advisory report.
The other two appointees are attorney positions. The Best Interest Attorney and Child’s Attorney are both legal representatives advocating on behalf of the child, although they do so in different ways.
The Best Interests Attorney’s duty is to “represent the minor children’s best interests” — nothing more, nothing less. As an attorney in a representative capacity, the BIA does not testify as a witness. Under Arizona Rules of Family Law Procedure, Rule 10(E), every BIA “shall participate in the conduct of the litigation to the same extent as an attorney for any party.” Therefore, the Best Interest Attorney attends and participates at trial and at evidentiary hearings, offers evidence and examines witnesses, and more, while focusing on what is in the best interests of the child. The BIA provides legal services for the sole purpose of protecting a child’s best interests, and is not bound by the child’s directives or objectives. That is, a lawyer investigating and then advocating the best interests of the child in the litigation. In some cases the best interests of the child may go against the child’s wishes – or may advocate for the child’s wishes if the best interest attorney deems the wishes actually “what’s best” for the child.
By comparison, the Child’s Attorney provides independent legal counsel for a child and owes the same duties, responsibilities, confidentiality, and competent representation as are due the parents. That is, a lawyer representing the minor child as a client is bound by the child’s directives or objectives.
In any given child custody dispute, it is possible, although rare, to have all three individuals at work protecting the child during court proceedings.