THE 2004 SESSION of New Hampshire General Court has enacted at least 17 bills concerning family law. These bills include revised service procedures, new ground for custody modification, elimination of orders for contribution to college, discretion for the court to treat irregular income separately for child support, establishment of the Family Division as a permanent part of the Judicial Branch, recodification of the adoption statute, extension of domestic violence orders, and some changes for juvenile matters. The full texts of all new chapters are available at http://gencourt.state.nh.us/ns/billstatus/chaplist2004.asp.

Chapter 114 of the Laws 2004 clarified and revised the procedure for notice and filing of divorce petitions, effective May 17, 2004. It removes the requirement that the court provides the respondent with 10 days to accept service at the courthouse. However, service by certified mail is now permitted for in-state and out-of-state respondents. Note that an error in this bill, specifically the reference to "7 days of filing the petition" in RSA 458:9, II, a, (2) is corrected in Chapter 169. The correction is: "within 7 days of receipt of the orders of notice."

Through the efforts of Marge Hallyburton, retired lawyer and guardian ad litem (GAL), an additional statutory basis for custody modification took effect June 4, 2004 (Chapter 8). The new basis, adapted from Washington state statutes, is:

"[Custody may be modified if] the court finds by clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental, or emotional health and that the advantage to the child of modifying a permanent custody order outweighs the harm likely to be caused by change in environment."

This test allows a comparison of the two homes. Note that the standard of proof for this test is "clear and convincing." The case law test in Perreault continues to be an option, subject to the "predominance of the evidence" standard. The new statute also codifies Pasquale, providing that if the parents agree that joint physical custody is not working, the standard for change is "best interest."

Chapter 1, the first bill enacted in 2004, removes judicial discretion to order a divorced parent to contribute to an adult child’s college expenses or other education expenses beyond the completion of high school. It also removes adult children from the list of those for whom a trust may be established under RSA 458:20, unless the child is "incompetent." This legislation took effect February 2, 2004.

Another new statute, chapter 136, limits authority to order support to disabled children after age 18. It allows the court to allocate existing college savings accounts. These changes took effect May 19, 2004.

Another new statute removes the problem stemming from Supreme Court rulings concerning commissions, bonuses, and other irregular income. Chapter 77 allows irregular income to be treated separately for support, effective May 7, 2004.

The new statutory language states:

Effective July 1 2005, the Family Division of the courts becomes a permanent component of the judicial branch. It currently operates as a pilot project in Rockingham and Grafton counties. A study committee will report by December 1, 2004 on how to implement the expansion into other counties. As a result of negotiations between the three branches of government, the Superior Court will be reduced to 22 judges (from 29) by attrition. The savings are to be used to provide "enhanced services" to parties in domestic relations cases. The same legislation (Chapter 240) also changes the procedure for initial appointments of marital masters to require governor and counsel (see related story on the Family Division expansion).

The NH adoption statute has been completely recodified, effective January 1, 2005 (Chapter 255). Adult adoptees born in this state may obtain their original birth certificates, effective January 1, 2005. The legislation (Chapter 99) sets out a procedure for birth parents to complete a "contract preference form" and medical history form to be attached to the sealed birth certificate.

Chapter 169 changes the effective date for child support modification. Modification can be effective as of the date of "notice" if earlier than "service." To document notice, use certified mail. (This legislation also corrects a time-period error in chapter 114.)

If extending a final domestic violence order beyond one year, at the respondent’s request, the court must state its reason. This takes effect January 1, 2005 (see chapter 206). At one point in the legislation process, the bill authorized the court to permit the attorney for the defendant to communicate with the plaintiff, but this provision was deleted. Thus, it continues to be necessary to seek court permission for such contact.

Effective August 10, 2004, financial affidavits are confidential, accessible only to parties, counsel, GAL, and government officials. A presumption of privacy applies, requiring clear and convincing evidence of public interest in release. See Chapter 202.

The notice requirements and several other provisions in the guardianship of minors statute will be changed, effective 1 January 2005. See chapter 11.

Effective August 15, 2004, under chapter 117, the existence of a court order shall not be considered in determining qualification for third-party payment of service ordered by a juvenile court.

The procedure for obtaining the presence of and testimony from out-of-state material witnesses, in RSA 613:1, 1, is now applicable to delinquency, abuse, neglect, and CHINS cases. RSA 613 requires that a court order from New Hampshire be presented to a judge where the witness is found.

Chapter 98 adds to the information that foster parents must receive, effective May 11, 2004. It amends RSA 170-E:34 (g) by adding: "including any physical and mental health issues, history of abuse or neglect, behaviors that may be expected, and recommended ways of handling the child’s problems."

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