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Last Post 25 Feb 2018 12:32 AM by  Ed
R-17-0049 Rule 72 Sua Sponte Appointments of Special Masters
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Author Messages
Martin Lynch
New Member
Posts:19 New Member

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02 Oct 2017 03:32 PM
    This petition would amend Rule 72, Rules of Family Law Procedure, to allow the trial court to appoint a family law master only if the parties stipulated to the appointment in writing or on the record in open court.


    Pursuant to Rule 28, Rules of the Supreme Court, Martin Lynch, on behalf of the People of Arizona, and joined in the spirit of Peter Swann, Judge of the Arizona Court of Appeals and Paul McMurdie, Appellate Judge and former Presiding Judge of the Family Court of the Superior Court of Arizona in Maricopa County in R-16-0037 respectfully petitions this Court to adopt the attached proposed amendment to Rule 72 of the Rules of Family Law Procedure. Since this petition is thought to be Nunc Pro Tunc, to correct a mere clerical error, Petitioners respectfully request permission to file this petition outside the Rule 28 timelines to allow the Chief Justice of the Supreme Court to consider this proposal and take appropriate action at his earliest opportunity. 

    Please see the attached for an illustration of
    “Only if each parent has agreed to the appointment” in Rule 74
    and necessary placement in Rule 72.

    The esteemed Judiciary of our State realized in well-crafted arguments that forcing an expensive 3rd party upon litigants over their objections was a violation of their Civil Rights. Rule 74 was changed accordingly (attached). See the word “only”.
    A loop hole in this Rule 74 prohibition arose. Some Parenting Coordinators began seeking Sua Sponte appointments under Rule 72 as “Special Masters”. To preclude this renewed violation of Rights, the Court set out to apply the same protections to Rule 72 in R-16-0037 (see attached Petition of May 18, 2016). The change and the stated intent of the change were adopted and enacted effective Jan 1, 2017 (see attached one page order).
    The People have discovered that some Family Court Judges have returned to making Sua Sponte appointments of “Special Masters” on their own motion over the objections of litigants under the revised Rule 72. Judges Swann and McMurdie (affirmed by Chief Justice Bales) are clear in the intent of the amendment to Rule 72: "Would (1) preclude the trial court from appointing a family law master on its own motion without the agreement of the parties."

    The People seek a Nunc Pro Tunc correction by the Chief Justice to simply affirm and clarify by adding the word “ONLY” as the first word in the new amended Rule 72, which apparently has been inadvertently left out . This absent word has eviscerated the clear intent of the change stated in the Rule Petition R-16-0037 and subsequent administrative order rendered by the Chief Justice included herein.

    The People believe this to be a mere “Nunc Pro Tunc” clerical error which can be easily and immediately corrected by administrative order signed by the Chief Justice at his convenience, under the administrative authorities granted to him by Art 6 Sect 3 of the AZ State Constitution.

    The People respectfully request the Chief Justice place the word “Only” as the first word in the amended Rule 72.

    To all Family Court Judges: If you are considering making Sua Sponte appointments based upon a “clerical error” in Rule 72, please don’t do that. The intent of the changes recently implemented by the Arizona State Supreme Court are clear in the one page implementation order signed by the Honorable Chief Justice Scott Bales (attached).

    Thank-you for protecting the Rights of the People.

    /s/ Martin Lynch
    1120 w Broadway Rd, Apt 55
    Tempe AZ, 85282
    602-550-6304

    Invitation to cooperate in related Process Improvements is extended to Mr Barry Brody and Mr David Horowitz herein.

    FILED 10/2/2017

    Comments must be submitted on or before May 21, 2018.
    Attachments
    Patricia
    New Member
    Posts:6 New Member

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    24 Jan 2018 06:23 AM
    PCummins
    14715 S. Camino Tierra Del Rio
    Sahuarita, AZ 85629
    patriciapeaches@aol.com
    520-730-5650

    RE: the matter of R-17-00049 Sua Sponte Appointments and Conflicting Supreme Court Rule 95, and Arizona Rules of Family Law Procedure

    Situation:
    Supreme Court Rule 95 Other Family Law Services and Resources conflicts with Arizona Rules of Family Law Procedure ARFLP Rule 72 Special Master, and Rule 74 Parenting Coordinator.
    Background:
    1. Supreme Court Rule 95 Other Family Law Services and Resources states:
    In addition to services prescribed elsewhere in these rules, the court may consider the services set forth in this rule, if available in a family law case.
    A. Private Mental Health Services. In addition to conciliation services, the court may order parties to engage in private mental health services, including, but not limited to, counseling, custody legal decision-making or parenting time
    evaluations, Parenting Coordinator services, therapeutic supervision of parenting time, and other therapeutic interventions.

    B. Substance Abuse Screening and Testing in Cases Where Custody Legal Decision-Making or Parenting Time Are at Issue. Upon an allegation or showing that a party has abused drugs or alcohol, including prescription medication, the court may order substance abuse screening and random testing of that party. The court shall designate the frequency of testing and apportion responsibility for payment of screening and testing
    2. No. R-16-0037 RULE 72, ARIZONA RULES OF FAMILY LAW PROCEDURE) was amended with the goal of the petition to eliminate the sua sponte appointment of special masters when neither party is amenable to their use.
    Rule 72. Family Law Master.
    A. Appointment and Compensation. Upon written stipulation by the parties and application by the parties, or on the court's own motion, or oral agreement on the record in open court, the court may appoint a family law master who is an attorney or other professional with education, experience, and special expertise regarding the particular issues to be referred to the master.
    The amendment to Rule 72(A) requires agreement by the parties—either through written stipulation or oral agreement on the record in open court—before the appointment of a family law master. This amendment is consistent with recent modifications to Rule 74 that likewise prohibited a court from imposing parenting coordinator fees on a party without their consent.
    3. R-15-0006
    And Rule 74 Parenting Coordinator: B. Appointment of a Parenting Coordinator. The court may appoint a third party as a parenting coordinator in proceedings under Title 25, A.R.S., at any time after entry of a legal decision-making or parenting time order only if each parent has agreed to the appointment either by written stipulation or orally on the record in open court.

    ASSESSMENT:
    Supreme Court Rule 95 conflicts with ARFLP Rule 72 and Rule 74.
    Supreme Court Rule 95 permits the court to Order "Other Family Services and Resources" whereas Arizona Rule of Family Law Procedure Rule 72 and Rule 74 DO NOT Allow the Court to Order Special Masters or Parenting Coordinators without having stipulation of the parties in writing or oral agreement on the record.

    This is a huge problem and financial burden for litigants in Family Courts, as the Family Court Judges continue Ordering/appointing expensive third parties over objection of the parties; families are forced to spend more money, spend their retirements, as ordered. There is no recourse, for some only bankruptcy at the hand of the courts and their processes. This is not in the best interest of our children.

    See Judge Swann and Judge McMurdie's REPLY TO COMMENT TO PETITION TO AMEND RULE 72 OF THE RULES OF FAMILY LAW PROCEDURE, submitted August 4, 2016, which clearly indicates appointment of special masters over objection of any party is not appropriate, which was ORDERED and is to be effective at this time.

    “The commenters support the goal of the petition to eliminate the sua sponte appointment of special masters when neither party is amenable to their use.”

    They maintain such an appointment is inconsistent with the goal of the Arizona Courts to facilitate access to justice, and they further the court should lack the power to require parties to spend money on private service providers to the exclusion of their right to public justice. Rule 74 was amended implicitly recognizing referral of parenting time and legal decision making to a Parenting Coordinator was not authorized.

    Family Court Judges continue with the appointment and use of expensive third party Special Masters, therapeutic interventionalists /non judicial officers over objections of the parties. This is an action of which cannot be referred even by stipulation according to Judge Swann of Division 1 Appeals. [see attached] It is clear that the use of a special master is used as a costly dry run for the main event before the trial, posing a financial burden onto the parties, and depleting the parties’ funds of which could have been used for attorneys at trial, posing more aggravation and financial burden for the now “pro per” to learn ARFLP and Court Rules to try to represent themselves. The whole process is pointless, and in some cases takes 18 years to resolve this way if one party has the money to buy their justice and the other is shut out of justice.

    The Trial court may not simply rely on affidavits of third parties in their rulings [but Family Court Judges do so regardless] and that referring to a special master expands the cost of litigation; and lengthens the time to resolution. The functions the expensive special masters perform [over objection] are closely analogous to those prohibited in Federal Courts. To impoverish families is not in the best interest of the child.




    RECOMMENDATION:
    Please abolish Supreme Court Rule 95 or amend Supreme Court Rule 95 to be in alignment with the newest updated changes of ARFLP Rule 72 and Rule 74 which have been heard on this forum and the Rules have been amended and ORDERED.

    1. Delete Supreme Court Rule 95 A. ( see below Attachment, strike through) AND Add a financial burden “cap” of if the parties have reached $10,000 in litigation fees for divorce and post decree, no third party assignments are to be imposed. For some of us we are well into the $100,000’s due to worthless/futile appointment of third parties, which were costly, and carries a very high financial burden, their reports are misleading to the judges with events that never took place or use of the party’s retained attorneys only-leaving out the parties, with the end result having no resolve and possibly more of an inflamed situation than before appointment.

    To re-adjudicate the issues in Rules 72 and 74 would be redundant and for the children and families the issue needs immediate correction.







    Attachments
    Ed
    New Member
    Posts:3 New Member

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    25 Feb 2018 12:32 AM
    Ed Pizarro Sr.
    AFCC Member
    42424 N. Gavilan Peak Pkwy
    Anthem, AZ 85086
    MasonV620@live.com
    646.685.9137 Tel

    I concur with the addition of the entry "ONLY" to this rule. The court, on its own accord, cannot continue to allow appointees on the mental health roster to financially cripple litigants. The Special Master assigned to my case continues to hold my son hostage. It's been 1122 days since he's been home. He lives 5 minutes away from me. She asserts that I have declined services. She neglects to inform the judge that I've paid her thousands of dollars and scheduled multiple sessions with her. She submits false information, mishandles the monies paid to her, and even disregarded a subpoena.

    The judge turns a blind eye. I am not alone. This same injustice occurs to many other American families in the Phoenix area. The therapeutic interventionist reports erroneous information yet is never admonished. A motion to the judge for the Special Master's dismissal is consistently denied. No explanation given by the JA or court staff.
    The rule must be explicit so to leave no room for misinterpretation.

    In addition, I concur with the deletion of Rule 95 as elaborated by Ms. Cummins above. I spoke briefly on this during the public comment portion of the Task Force meeting held in late 2017. I mentioned how the rules 72/74 and 95 are in conflict. I hope that the members have heeded my opinion and it's subsequent confusion to Arizona pro se litigants.


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