Legal Memorandum: Physical and Mental Examinations

Issue: In Arizona, Whether it is Within a Trial Court’s Discretion to Deny a Motion for a Rule 35 Mental Examination in a Custody Mattertc l2 "A. The Trial Court Was Within its Discretion in Denying Husband’s Motion for a Rule 35 Mental Examination.

Rule 35(a) states, in part:

When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or psychologist or to produce for examination the person in the party’s custody or legal control.

TA s "Ariz. R. Civ. P. 35(a)" c 1 l "Ariz. R. Civ. P. 35(a)"Ariz. R. Civ. P. 35(a) (emphasis added).

The use of the word "may" in the Rule indicates that whether or not to order a mental examination is a decision in the trial court’s discretion.  The Rule does not say that the trial court’s decision is discretionary in the absence of good cause; rather it states that good cause must be shown as a prerequisite to the court deciding whether or not to exercise its discretion.

How the court weighs custody factors is totally in the trial court’s discretion.  "It is well settled that a judgment of a trial court as to the best interest of a child in a case such as this, cannot be set aside on appeal unless it clearly appears the trial court has abused its discretion."  TA s "Ward v. Ward, 91 Ariz. 296, 297, 371 P.2d 1022, 1023" c 2 l "Ward v. Ward, […]