Lynda Vescio, Esq.
Law Offices of Vescio & Seifert, P.C.
9017 N 57th Dr, Glendale, AZ 85302
(623) 243-7556

As a family law attorney of 15 years, a Juvenile law attorney of 2 years, and a civil litigation attorney for ten years, I am very familiar with the Rules in several areas of practice and I strongly support this Petition. In particular, I strongly support the change to the Rule which would permit the judge to admit limited "hearsay" evidence even when a Rule 2 Notice has been filed, which known colloquially as "invoking the strict rules".

First, the statute and the Rule are in conflict. It is often impossible to exclude all hearsay evidence while at the same time ensuring that the court has full information regarding the factors in the statute that the Court is required to consider. Attorneys, parties, and judges take varied approaches to this conflict, which leads to inconsistent results. This makes it impossible to know how to prepare and present a case efficiently.

Next, not permitting hearsay which relates specifically to the statutory factors that the Court is required to consider leads to unfair results for unrepresented parties. Many parties in family court do not have an attorney. They may have access to the statute setting forth the elements they need to present to the Court, but the party with greater resources can hire an attorney who can use these rules much more efficiently to present their case and/or present the other party's case from being fully presented.

In family court, Hearsay is the only evidence of abuse, mistreatment, or poor parenting because the statements come from the Child, or an adult the Child trusted, and the Child cannot testify. Rule 2 is often invoked on behalf of an abusive parent who knows that without the Child's statements, evidence of the abuse will never reach the judge. While the Child (if they are of "suitable age and maturity") may be "interviewed" by Conciliation Services, the questions in those interviews are broad and a child may not be comfortable being fully open with the stranger, or may fear repercussions when a parent reads the interview. In contrast, they may have made disclosures to a trusted adult or service provider, but such statements are hearsay. Inappropriate parental conduct may not rise to the level of criminality or unfitness such that the police or DCS becomes involved. However, evidence of this conduct - which may explain a child's behaviors or relationship with a parent - will not be admissible. Indeed, a Child may write in texts or social media posts that a parent allows them to use drugs or engage in unsafe conduct. Again, without that child's own statements being admissible, the Court will not be able to consider this evidence in determining the Child's best interest. 

Concerns about "due process" are misplaced. The default in Family Court is to ALLOW hearsay. Thus, if allowing in limited hearsay even when Rule 2 is invoked "violates due process" then every family law case in which Rule 2 is not invoked violates hearsay.

Finally, not adopting this Amendment will lead to more appeals. As the statute and Rule are not consistent, litigants can easily appeal in a case where Rule 2 has been invoked that the Court improperly excluded evidence it was required to consider under the statute due to the hearsay rule, and, conversely, that the Court violated the Rules by admitting hearsay evidence which was relevant to the statutory factors. Unless the Rule is amended, this inconsistency will continue to cause confusion and inconsistent results and will provide litigants with fertile ground for appeals.

The Rule is not intended to give the Child decision-making authority at all. Instead, it is intended only to ensure that the Court has all available information before it in order to fulfill its mandate to consider all of the statutory factors. The Court still has the ability - as it does in all family law cases - to decline to admit unreliable evidence or to give such statements "the weight they are due."

The proposed Petition, far from creating problems, seeks to harmonize the Rules with the Statute and to ensure that all information regarding Children's best interests is available to the Court. It seeks to close the loophole which currently allows inappropriate parents to hide evidence from the Court.

David Tascoe - [email protected] - 602-452-3255
on behalf of
Committee on Family Court, fka Family Court Improvement Committee
Judge Greg Sakall, Chair

The Committee on Family Court, fka Family Court Improvement Committee, met on February 15, 2024. A motion to support in part and oppose in part, petition R-24-0036 to amend Rule 2, Ariz. R. Fam. L.P., passed unanimously.

Lisa C. McNorton
AZ Chapter AAML
4400 E. Broadway #602
Tucson AZ 85711
(520) 327-3122
[email protected]
SBN #019900

Paul Bowron
Tel: 520-795-7300
2921 E. Ft Lowell Road
Suite 201
Tucson, AZ 85716-1556

I have been practicing solely in Family law for the last 7 years in Pima and surrounding counties.
I am adamantly opposed to this proposal for a variety of reasons:

A. It will encourage coaching on the part of parents and involve children even more so than they already are in the legal process. I have seen this kind of coaching and the resulting need for years of counseling to address the same.
B. The best interest factors of 25-403 can be and are best addressed without hearsay.:

1. The past, present and potential future relationship between the parent and the child.
AND
2. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
These two factors do not need hearsay to be addressed. Parties can testify to their own impressions of the children’s relationships with each party/family/teachers/etc. without invoking quotations (either overtly or unintentionally prompted) from the children.

3. The child's adjustment to home, school and community.
The parties and others can testify to the children’s activities, routines likes and dislikes on daily matters without invoking quotations from the children themselves. I have never seen a sustained objection made to report cards, grades, IEP and 504 records.

4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
Every County has a procedure under Rule 12 for the interview of the children in some protected format such that the children are not dragged into the litigation any more than is absolutely needed. It is in this protected format that the children are able to voice their preferences as to parenting time, level of safety felt at each parent’s home and likes/dislikes within each parent’s home.

5. The mental and physical health of all individuals involved.
I am unaware of an issue which would call for the wholesale acceptance of child hearsay to address this factor. Rule 49 already requires the disclosure of treatment providers going back 5 years. If there are mental health concerns, the parties should be able to testify to their own observations of the symptoms of the same. The Court can then request various levels of documentation from the parties to address mental health treatment.

6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent. This paragraph does not apply if the court determines that a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
If a parent is withholding the children, that is plainly shown by a variety of documents such as communications between the parties and police reports. Child hearsay does not aid the Court in examining this factor.

7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
Child hearsay does not aid the Court in examining this factor.

8. Whether there has been domestic violence or child abuse pursuant to section 25-403.03.
Records and testimony of DCS, Law Enforcement, Mental Health Providers and the like are sought out by the Court for their value due to their impartiality. I have not heard of a Court refusing to admit these records on Hearsay grounds without first ordering the appearance of the relevant witness. The difference between these professional’s reports and Hearsay delivered from parents is that parents are motivated to fabricate child hearsay.
Children also either intuit what their parents want them to say or know it outright because their parents make it plain. Encouraging hearsay through this proposed rule change will only encourage further involvement of the children in family law matters.

9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
Child hearsay does not aid the Court in examining this factor.

10. Whether a parent has complied with chapter 3, article 5 of this title.
Child hearsay does not aid the Court in examining this factor.

11. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02.
Child hearsay does not aid the Court in examining this factor.


C. Courts already have the ability to admit hearsay in Rule 807. Judges use this residual exception to admit hearsay when the evidence is necessary to address the 403 factors.

This proposal will gratuitously involve children in litigation in a manner which provides no protection for them. I oppose this proposal.