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Last Post 20 Feb 2024 09:40 PM by  Lynda Vescio, Esq.
R-24-0036 Petition to Amend Rule 2, Ariz. R. Fam. L. P.
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Author Messages
State Bar of Arizona
Basic Member
Posts:141 Basic Member

10 Jan 2024 05:08 PM
    State Bar of Arizona Petition

    Lisa M. Panahi, Bar No. 023412
    General Counsel
    State Bar of Arizona
    4201 N. 24th St. Suite 100
    Phoenix, AZ 85016
    [email protected]

    Filed: January 10, 2024

    Would amend Rule 2 of the Rules of Family Law Procedure to clarify when and how certain rules of the Arizona Rules of Evidence may be enforced in family court matters.

    Comments must be submitted by no later than Wednesday, May 1, 2024, and any reply by a petitioner must be submitted no later than Monday, June 3, 2024.
    Lynda Vescio, Esq.
    New Member
    Posts:1 New Member

    20 Feb 2024 09:40 PM
    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.
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