411 S.W.3d 702
Ark.2012Background
- Paternity action filed Dec 22, 2009; Dennie seeks custody of M.T. and child support; Tracy admits paternity and seeks custody.
- Jan 14, 2010; circuit court appoints attorney ad litem Sherry Burnett to represent the child.
- Pre-trial in-chambers discussion about admitting the ad litem’s written report; objection raised by Tracy.
- Court overrules objection and admits Petitioner’s Exhibit 1, the ad litem’s report, as evidence.
- Final custody order leaves custody with Dennie and grants Tracy standard visitation; Tracy appeals, challenging admission of the report.
- On appeal, court upholds admission of the ad litem’s report and affirms custody/visitation order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ad litem report was admissible as hearsay. | Tracy—report contains hearsay and violates rules of evidence and professional conduct. | Dennie—report admissible under Administrative Order 15; not hearsay or proper witness issue. | Report admissible; no abuse of discretion in admission. |
| Whether admission of the ad litem report violated Rule 3.7 (attorney as witness). | Ad litem cannot be both advocate and witness; admission violated Rule 3.7. | Order 15(V) contemplates ad litem as advocate; not likely to be a necessary witness. | Admission not a violation; no abuse of discretion. |
Key Cases Cited
- Taylor v. Taylor, 345 Ark. 300 (Ark. 2001) (abuse of discretion standard for evidentiary rulings)
- Weigel v. Farmers Ins. Co., 356 Ark. 617 (Ark. 2004) (testimony witness rules with expert/advocacy roles)
- Reid v. Arkansas Dept. of Human Servs., 2011 Ark. 187 (Ark. 2011) (cross-examination and due-process considerations in civil cases)
- House v. Volunteer Transp., Inc., 365 Ark. 11 (Ark. 2006) (nonjury bench trial evidentiary considerations)
- Marshall v. State, 342 Ark. 172 (Ark. 2000) (competent evidence presumption in bench trials)
- Trannum v. George, 211 Ark. 665 (Ark. 1947) (out-of-court statements as hearsay; custody context)
- In re Adoption of K.F.H., 311 Ark. 416 (Ark. 1993) (judicial evaluation of ad litem in custody matters)
- Huff, 347 Ark. 553 (Ark. 2002) (cross-examination and due-process considerations in child-welfare context)