A slate of family court reform bills was recently introduced into the Arizona legislature, and a hearing was held earlier this month to debate them.
Richard Luthmann and I sat down with Malinda Sherwyn, who has been tracking the bills, to discuss them.
SB 1330- jury trials in child custody
Malinda has backed jury trials in custody, and particularly in child protection cases, for years.
SB 1330 represents the latest iteration of this idea, however, as she told us, the Arizona legislature tried and failed to make this a law many times-2019, 2020, and other times when similar bills were introduced.
In this iteration, a jury would be convened if a parent is recommended to have less than 35% of the custody time.
We all favored jury trials in child custody, but Malinda said it should be in all cases.
In the hearing, there was an interesting moment when Jordyn Clark testified on behalf of the Arizona Association of Counties in opposition of the bill.
Ms. Clark argued that family court judges were in better position to make custody decisions due to their training and experience in the subject, but then it was time for Arizona Republican State Senator Wendy Rogers to ask some questions.
“Are juries ever subject matter experts on the subjects that the pass judgment on?” State Senator Rogers asked.
Ms. Clark struggled to answer the question, and Rogers’ point is well taken.
We do not demand criminologists to sit on criminal trial juries or contract law experts to sit on contract dispute juries.
There’s no reason to believe that lay juries would do any worse for custody than for anything else.
SB 1329- professional liability for court appointees
Arizona Republican State Senator Mark Finchem introduced this bill. He headed the Arizona ad hoc joint committee on family court orders.
He presided over dozens of hours of testimony, including testimony about abuses by court appointees.
As such, I was surprised to read his press release for this bill.
Senator Mark Finchem introduced SB 1329 to protect family court professionals who are tasked with making difficult decisions in emotionally charged cases involving children and families.
SB 1329 provides liability protections for court-appointed professionals acting within the scope of their duties. Without reasonable legal safeguards, qualified professionals are increasingly reluctant to serve, leaving courts without experienced evaluators and advisors.
The bill does not excuse misconduct or negligence. It simply ensures that professionals acting in good faith are not destroyed by litigation for doing their jobs.
It looked from the press release like he was protecting court appointees, even as many parents told him that court appointees had destroyed their lives.
The text of the bill looks a lot different than the promotion. The bill allows parents to sue a court appointee for up to four years after an infraction but gives the court appointee qualified immunity, same as police.
A parent may bring a civil action against any professional personnel who is appointed by the court in any matter involving legal decision-making or parenting time for a deviation from the professional personnel's ethics and standards that are prescribed by the professional personnel's licensing agency and licensing requirements.� A parent shall commence an action pursuant to this section within four years after the cause of action accrues.
This means if a court appointee lies under oath, they don’t have protection but if they make a good faith decision which turns bad, they are protected.
I think this bill can be a model for the country. I also think that Senator Finchem was being diplomatic in hopes of capturing more of the legislature.
Richard and I hope to interview him again soon and ask.
SB 1328- presumed joint custody bill
At first glance, this looks vague and the sort of bill I don’t like, but I like this because the alternative is presumed 50/50.
If SB 1328 passes, parents in custody disputes will be presumed fit, until proven otherwise, and presumed to get substantial custody time.
Idaho, where a reform bill will be introduced soon, has something similar on the books.
This strikes the right balance, in my opinion.
Presumed 50/50 is rigid and presumes that the best arrangement is equal time, for which there is no evidence.
