THIS TIME NEXT year, the Family Division will be a permanent component of the judicial branch that will be operating in all 10 counties in the state; the NH Superior Court will be authorized seven fewer judges; and new marital masters will have their initial appointment approved by the Governor and Executive Council.

-- Chief Justice John T. Broderick, Jr.

A new statute, chapter 240, makes permanent and expands statewide the Family Division of the courts; it also reduces the number of superior court justices from 29 to 22 through attrition, and requires that the governor and executive council approve a marital master for his or her first three-year term. (See related story on other legislative changes concerning family law).

"Very few Superior Court justices will be involved [in the Family Division] because they are giving up seven of their judges. The Superior Court will be smaller, but free from handling family law cases," said NH Supreme Court Chief Justice John T. Broderick, Jr. in explaining why he believes the reduction of judges will not hurt the court system.

"District and probate court judges will take on most of the family cases," explained Broderick. He added that cases formerly handled by superior court judges will be redistributed to family court judges or marital masters. "We are trying to divest the Superior Court of [family law] cases. Not because the cases are not important, but because it will be more efficient to hear them in a court dedicated to handling these types of cases."

The law states that any superior court justice appointed prior to July 1, 2004 will retain his or her position, and vacancies—from retirement, resignation or removal—will remain unfilled until the number of superior court justices is reduced to 22. "Any savings realized from unfilled superior court justice vacancies in the superior court shall be used by the judicial branch toward the goal of providing enhanced services to parties involved in cases relating to divorce, custody, children, domestic violence, and other family matters."

There are now 26 Superior Court judges. The Administrative Office of the Courts (AOC) estimates that there will be approximately $200,000 in savings from the three existing 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 the hiring of more marital masters and case managers for the Family Division. Broderick estimates that the number of marital masters might increase up to 16.

Marital masters are currently selected by the Superior Court and appointed for a five-year term. The legislature felt that marital masters should be vetted and approved in a similar way to judges. As part of a compromise, the court will recommend the names of marital master candidates to the Governor and Executive Council, who will approve them for three-year term or reject them. Reappointments will be handled by the court system. "Because we felt that this was an intensely difficult job, we didn’t believe that marital masters should have to go through the confirmation process more than once," explains Broderick. The new law does not affect current marital masters up to the affective date of July 1, 2005. "We thought it important that they not be lumped in with the group of new appointees."

HB 643, signed into law by Gov. Craig Benson on June 23, was sponsored by a bi-partisan group of legislators, including: Rep. Kenneth Weyler, R-Kingston; Rep. Mary Jane Wallner, D-Concord; Rep. Elizabeth Hager, R-Concord; Rep. John Pratt, D-Walpole; Rep. Laurie Boyce, R-Alton Bay; Sen. Robert Boyce, R-Dist 4; Sen. Russell Prescott, R-Dist 23; Sen. Frank Sapareto, R-Dist 19.

The Family Division Pilot Program has been operating in Rockingham and Grafton counties for about a decade. The Supreme Court established a family division study committee earlier this year, chaired by Supreme Court Justice Linda Dalianis, to find the best way to configure, operate and implement the Family Division expansion into other counties by the July 1, 2005 effective date; and to suggest improvements in the operation of the current family division in Rockingham and Grafton counties. The committee must make a recommendation to the three branches of government by December 1, 2004.

Over the past few months, Dalianis has publicly discussed some of the general issues that the group is studying. She said that the committee is working on determining the best way to deploy a family division on top of the existing court template, without requiring more resources. Dalianis explained that the commission expects that there will be about 28 family court sites that will be housed in existing court facilities and absorbed within the existing budget. The commission is looking at the feasibility of having at least six family courts in Hillsborough and up to four in other counties, depending upon caseload and resources.

"It’s a work in progress," said Broderick about the expansion plans. In the site selection for the new family courts, the committee is taking into account presence of a full-time judge, geography, and caseloads, among other issues. "The committee is looking at balancing economics and convenience," he explained.

Cases to be heard before Family Division courts will include:

• Petitions and libels of divorce, and petitions of nullity of marriage, alimony, custody of children, support, and to establish paternity;
• Actions for support or custody for children of unwed parties;
• Actions under RSA 169-B, relating to delinquent children;
• Actions under RSA 169-C, relating to abused and neglected children;
• Actions under RSA 169-D, relating to children in need of services;
• Actions under RSA 173-B, relating to protection of persons from domestic violence except for concurrent jurisdiction with the superior and district courts to enter temporary protective orders under RSA 173-B:4;
• The adoption of children;
• The guardianship of the person of minors;
• The termination of parental rights; and,
• Name changes.

Karen J. Borgstrom, a principal at Loftus & Borgstrom in Lebanon, has litigated cases in both Grafton County, part of the pilot program, and Sullivan County, not part of the program. She believes that there are procedural differences in the pilot program that are easier on the clients. "Systemically, I think the family rules have streamlined things and made them more user-friendly for the parties involved," she said, adding that "things are also done in a more cooperative manner."

Borgstrom explained that the processes and forms used within the Family Division are more efficient. She cites, for example, in a divorce case the ability for a couple to file joint petitions, allowing clients to bypass a court-imposed temporary hearing. She adds that couples who have mutually resolved their issues can ask the court to waive their right to attend a final hearing. "This is not the case in superior court, where at least one party must appear," said Borgstrom. "That’s often very hard for people in this type of case."

She says that she welcomes the expansion of the Family Division to include all counties. "It is difficult as a practitioner to work in two different systems," she said. "There are different rules and different forms between the pilot and non-pilot courts. You always need to keep in mind which court you are in when you are preparing a case. Now that everyone will be on the same page, it will be a lot easier."

Another thing Borgstrom appreciates about the family court system is that it is conducive to the use of mediation.

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