FOR THE FIRST time in nearly a decade, New Hampshire’s Family Division Pilot Program (FDPP) has support from key leaders in all three arms of government and is the closest it has ever been to becoming permanent in the two counties it currently serves and in expanding statewide.

"I’d say I’m cautiously optimistic," says Chief Justice John T. Broderick Jr. "Regardless of what happens with the legislature, I think we all need to take a fresh look at how family issues are handled in this state."

Despite the current atmosphere of cooperation among the judicial, legislative, and executive branches for statewide expansion, key hurdles remain. The two main concerns about making the Family Division permanent in Grafton and Rockingham counties and eventually expanding it state wide are: paying for the increased cost of the system within the existing judicial branch budget, and establishing equitable administrative systems for all regions throughout the state.

Funding is, and has always been, the major sticking point in moving the division beyond its experimental status. The pilot program combines jurisdiction over family law cases including, to name a few, marital matters, abuse and neglect petitions, adoptions, and guardianships that currently are spread throughout the dockets of district, probate and superior courts.

The Family Division appropriation for FY 2004 is $2.3 million, or 4 percent of the $57.5 million Judicial Branch appropriation. In FY03, division expenses were $2.2 million, or 3.7 percent of the branch’s total expenditures of $57.7 million.

Over the years, other legislative attempts to expand the Family Division have failed. The closest an expansion came to passing was in June 2000 with SB 468, whose primary sponsor was state Sen. Deborah Pignatelli (D-Nashua). If her bill had passed, it would have added two more participating counties and created a study committee to explore the feasibility of statewide expansion. Gov. Jeanne Shaheen vetoed the bill "with regret" because it lacked a funding mechanism.

In early March, following a closed-door meeting with the chief justice, Gov. Craig Benson publicly stated that he supports the concept of a statewide family division. In an unprecedented action, the governor says he is willing to refrain from filling up to seven existing and future Superior Court judicial vacancies. "The governor’s offer shows an enormous effort on his part," explains Broderick.

Currently, with the retirements of Superior Court Judges Philip Hollman and Walter Murphy and Supreme Court Chief Justice David Brock, there are now 26 judges in the system. The court is entitled by the state constitution to have up to 29 judges.

The Administrative Office of the Courts (AOC) estimates that there will be approximately $200,000 in savings from the three existing Superior Court vacancies. The money not spent on those judicial salaries can be used by the Judicial Branch to meet the $5 million reduction required in its overall FY04 budget appropriation. Part of those savings will be put toward processing family cases.

Those savings are already having an impact. In this issue of Bar News (see page 34), the Superior Court is advertising to fill a martial master position vacant for nearly two years. According to superior court officials, it has not been determined where that marital master will serve, although it can include service in Family Division counties or hearing martial cases in the superior court in the remaining eight counties.

In another move forward for the Family Division, the Supreme Court last month appointed Judge Edwin W. Kelly as administrative judge of the Family Division in Grafton and Rockingham Counties. This is in addition to his position as administrative judge of the district courts. "The core of the family division is to reduce the adversarial nature of proceedings involving families and to provide community-based courts where these cases can be handled on a consistent basis," Kelly said in a statement accepting the three- year appointment.

Kelly welcomes the new momentum for the expansion of the division. "There is a confluence of support that hasn’t been there before." He also sees the new chief justice and the Supreme Court as the catalyst for the change in perspective. "They see this as an opportunity for the legislative and judicial branches to work together to improve how family cases are handled in the state." He wants to take a deliberative approach to expanding the system by first examining how to improve and build upon the current system. "I would like to see us move slowly and thoughtfully in this process."

Broderick also announced the hiring of Gina B. Apicelli, formerly the executive director of the federally funded Greenbook Project in Plymouth, as FDPP administrator. She will assist Kelly and support the needs of the new study committee.

The Greenbook Project is a joint effort of the Grafton County District Court and Family Division, domestic and sexual violence crisis centers and the Division for Children, Youth and Families (DCYF) to respond to families involved in abuse, neglect and domestic violence issues. Apicelli takes over the administrative position vacated by Heidi Boyack.

A Franklin Pierce Law Center graduate, Apicelli has practiced family law in Grafton County and is a certified guardian ad litem and a trained marital mediator. In her new position, one of her main priorities will be to analyze all of the family law issues that flow into the court system to determine if there are alternative dispute resolutions for families to avoid adversarial litigation. She also wants to provide specialized training to non-judicial staff that work with family cases, many of which have one or more pro se litigants. "I want to give them the resources and tools to respond to the various situations they are confronted with."

Progress toward permanence and expansion of the Family Division had been slowed by doubts about the consistency of administration in the two very different counties where it now operates. Skeptics of the establishment of a statewide Family Division are concerned that the model will be more difficult to apply in rural areas because of the increased demands on resources required by the system. Proponents believe that the Family Division concept works well in rural-area courts but they admit that it is more of a challenge to hear family law cases separately in these areas because of limited operating hours, judge time, and smaller non-judicial staffs as well as longer traveling distances for litigants. In contrast, courts in urban areas where population is more dense, the courts have larger staffs and operate daily. Yet, supporters of the system do not feel these obstacles are insurmountable.

In March, the Supreme Court formed a study committee, chaired by Associate Supreme Court Justice Linda S. Dalianis, to examine a way to deliver services in family law cases uniformly throughout the state. Broderick explains that the committee, which will include judges, marital masters, lawmakers and others, will report back to the Supreme Court this fall. According to a court spokesperson, the new committee was established so the branch will not move too far forward in committing how funds will be spent until the "footprint" for the statewide family division has been developed. It will also consider "whether and how" existing Judicial Branch resources could be reallocated to achieve an expansion of the division.

In addition to talks with the governor, the chief justice has discussed the concept of establishing a statewide system to address family court issues in a timely and uniform manner with Senate President Thomas R. Eaton and House Speaker Gene G. Chandler.

"The Family Division has proved invaluable in addressing family and marital disputes which are of enormous importance to our citizens and constitute an increasing segment of the judicial branch caseload," says Broderick, speaking for the full court. "The Supreme Court looks forward to working in a very constructive way with the legislature to improve court services to families."

During a state Senate hearing in March on an amended version of HB 643, Broderick told the Senate Judiciary Committee, "Our goal in coming here today is to put families first." He added that the time had come for serious consideration of how family-related cases are handled in the state. "This action is long overdue."

The chief justice voiced his support for the principles encompassed by the Family Division, but did not endorse a particular model of what the division should ultimately look like. He also acknowledged there would be a higher price tag for handling family cases holistically, although he did not specify a particular amount, deferring to the findings of the study committee later this year. "There are very few free lunches in this life," Broderick explains. "I’m not sure this will be one. But, we should be able to take a sharp pencil to [this concept] and come up with an amenable solution."

If adopted by the Senate, the bill would make the family division of the courts currently operating as a pilot program in Grafton and Rockingham Counties a permanent component of the Judicial Branch. The bill also requires the state Supreme Court to appoint a committee to make recommendations to the legislature by December 1, 2004 for the expansion of the family division statewide and for changes in the operation of the family division in the existing counties.

"The timing of this [bill], with the Chief Justice’s weight behind it and the Governor’s support of it, is what we [in the Legislature] have been waiting for almost a decade," says the bill’s primary sponsor state Rep. Elizabeth Hager (R-Concord). She is optimistic that the permanency and expansion of the Family Division will occur, but not necessarily the same model as currently in place. "The court, legislature, and executive branches are going to work together to make the court system a little friendlier," says Hager. "[The legislation] just needs to make it safely through the Senate."

Although, state Rep. Henry Mock, (R-Jackson), chairman of the House Judiciary Committee, supports HB 643, he expressed some reservations about it.

"If the family court works properly, and if it works efficiently in all 10 counties, I support it," says Mock. "We can’t have a court that operates fine in one county but not in another." He feels that before any action is taken to make permanent or expand the Family Division, all options must be studied thoroughly before the legislature moves to implement it.

Mock wants to see a more deliberate approach taken to implement any changes to the court system. "We are so hungry for cooperation with the court that we might be moving too fast on this," he says. "I would hate to see a whole new court system set up that might not work in all counties."

Created by Chapter 152, Laws of 1995, and implemented in July 1996, the FDPP was established to handle family law cases involving issues such as: divorce; separation; marriage annulment; child custody; alimony; child support; paternity; juvenile delinquency; abused and neglected children; domestic violence; children in need of services; adoption; guardianship; and termination of parental rights. The program was created to address deficiencies found in the 1995 "Report of the Resolution of Family Issues in the Courts Study Committee," mandated by the legislature.

Prior to the pilot program, and in the state’s other eight counties, family-related cases have been handled by three court systems in New Hampshire. The FDPP took over new cases previously handled by the superior court, district courts, and probate courts. In the FDPP, eight courts, four in each county, handle these cases. In Rockingham they are in Brentwood, Derry, Portsmouth, and Salem; and in Grafton in Haverhill, Lebanon, Littleton, and Plymouth.

About 60 percent of FDPP cases were formerly under the jurisdiction of the district courts, 35 percent were under the superior court, and five percent under the probate courts, according to the state Office of the Legislative Budget Assistant (LBA) in its January 2000 Performance Audit Report. From statistics supplied by the Judicial Branch, in 2003 there were 6,680 filings handled by the Family Division (See "Calendar Year 2003 Statistics" caseload chart).

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