Rule Impacts Report

Family Law

 Rules of Family Law Procedure

 Rule  Will Affect   Summary and Impact 

Rules 5.1, 47, 67(b), 69, 74, and 78

R-09-0042

AOC contact:
Kathy Sekardi

Superior court

Judges

Clerks

Admin

1. New Rule 5.1 provides for the possibility of consolidation of dependency and family law proceedings that are simultaneously
pending and that concern the same parties.

Impact:

  • The court on its own motion, or any party, may move to consolidate the cases.
  • The motion must be filed in the juvenile division, and a copy must be provided to the assigned family law division.
  • The assigned juvenile division will rule on the motion.
  • Custody and parenting time issues will be litigated in the juvenile division unless the juvenile division defers jurisdiction to the assigned family law division.
  • The juvenile division may refer the dependency matter to the assigned family law division for a change of custody proceeding or retain the cases in the juvenile division if it is determined that a change of custody may result in a dismissal of an adjudicated dependency case.
  • The juvenile division may deny the motion to consolidate and defer jurisdiction to the family division. The referral to the family law division must include an order that the division has jurisdiction to resolve the custody matter.  If the family law division grants a change in custody, that division may dismiss the dependency proceeding.
  • The juvenile division has discretion to transfer the matter to the family law division if the matter is more appropriate for the family law division.
  • During a dependency or guardianship proceeding in the juvenile division, the court may suspend, modify, or terminate a child support order for current support if there has been a change in legal or physical custody.   
  • Except in Title IV-D cases, the juvenile division may make appropriate orders concerning past due support or arrears; and it may direct that a wage assignment be quashed or modified.
2.    A petition filed by a non-parent pursuant to A.R.S. § 25-415 has been added as a basis for a pre-judgment temporary order under Rule 47 (temporary orders.)

3.  Amendments to Rule 67(B)(1)(a) require that any binding agreement that is reached by the parties during a private mediation must comply with Rule 69 (see below); and that the agreement must contain certain acknowledgements by the parties (i.e., that the agreement was voluntarily entered into after full disclosure, an intent that the agreement be binding, that it is fair and equitable, and, where minor children common to the parties are involved, that it is in the best interests of the children.)

4.  Amendments to Rule 67(B)(1)(b) provide that the parties may request the appointment of an active judge pro tempore to conduct a private mediation in their case, supported by an affidavit of a judge pro tempore stating that he or she is a judge pro tempore in good standing; and the court may then appoint the judge pro tempore to conduct a private mediation.

The appointed judge pro tempore may be authorized to conduct a private mediation, to approve binding agreements made by the parties in conformance with Rule 69, to make any findings necessary to approve the agreements of the parties pursuant to A.R.S. § 25-317, to make the jurisdictional findings pursuant to A.R.S. § 25-312 or A.R.S. § 25-313, and to sign any decree of dissolution presented that conforms to the agreements reached by the parties.

[See further Reeder v Johnson, 224 Ariz. 85, 227 P.3d 492 (Div. One, 2010):  The parties cannot stipulate to assign a judge pro tem to their case; that authority must come from the court that has jurisdiction over the matter.]

The judge pro tempore may be compensated for his services as a private mediator, but may not seek compensation for approving agreements or for signing a decree of dissolution.

Impact:  Any decree of dissolution signed by a judge pro tempore pursuant to the authority conferred by the court shall have the same force and effect as a decree of dissolution signed by a judge or commissioner of the court. The signed decree must be immediately delivered to the judge appointing the judge pro tempore for filing and entry into the minutes of the court.

5.  Amendments to Rule 69:

  • Set out the requirements for a binding agreement between the parties;
  • Provide that an agreement entered pursuant to the requirements of the rule is presumed valid and binding;
  • Require that the party challenging the validity of the agreement has the burden of proving any defect.

Impact:  The court may award a party the cost and expenses of maintaining or defending a proceeding to challenge the validity of an agreement made in accordance with this rule.

6.  An amendment to Rule 74 precludes an attorney from attending parenting coordinator meetings unless agreed to by the parties and the coordinator, or unless ordered by the court.

7.  New rule 78(E) clarifies that offers of judgment, as provided by Rule 68 of the civil rules, do not apply in matters governed by the family law rules of procedure.