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Bar News - October 8, 2004 Major Changes Anticipated for Family Laws By: Dan Wise Reports Due Nov. 1, Dec. 1 THE BASIC PREMISES upon which domestic relations and child support issues are decided-as well as when, where and by whom they are handled by the courts-are being examined by three influential groups that will be issuing recommendations over the next two months. Those involved say major changes in the landscape of family law are in the wind. Due to report on Nov. 1, following two years of hearings and deliberations, is the Family Law Task Force, created by HB 447. The task force is charged with developing "a proposal for integrating a non-adversarial system for families undergoing divorce, separation, custody disputes, and other family law matters." Nina Gardner, executive director of the NH Judicial Council, who served as chair, said the task force is in the midst of voting on recommendations that cover a wide range of substantive and procedural areas, with an emphasis on finding ways to encourage alternative dispute resolution, and provide counseling and other support services earlier.  Rep. David Bickford answers a question about the Child Support Commission at a Family Law Section meeting last month. At left Nina Gardner, chair of the Family Law Task Force. On Dec. 1, a report by another legislatively created body, the Commission to Study Child Support and Related Child Custody Issues, is due. That Commission, chaired by Attorney Jeffrey Runge, has met monthly (and sometimes more often) and held four hearings around the state over the past year. Testimony at those hearings was dominated by the concerns of non-custodial parents and obligors. Several commission members have indicated that the commission could recommend a fundamental change in the presumption of how child custody and support are divided between parents. The group is also looking at practical recommendations such as a less cumbersome, time-consuming way to modify child support orders as a result of changes in circumstances. Also in December, a judicial branch committee headed by Associate Supreme Court Justice Linda S. Dalianis is due to issue its report proposing implementation of the statewide, permanent family division that incorporates elements of the superior, district and probate courts. Details may be released earlier on such matters as scheduling, resource allocation, court sites, funding and into which counties the family division will expand first. Judge Edwin Kelly is scheduled to meet with the Family Law Section on Oct. 27 to outline some of these recommendations. Gardner, who has been involved in earlier family division and judicial system reforms over the years, said the task force, despite individual differences, is focused on making changes that will make it easier for "reconstructed" families to responsibly parent their children after divorces or breakups. "We are looking to change the culture surrounding divorce," she told members of the Family Law section last month. "We are looking at doing divorce in other ways. Our hope is to get as many people as possible on another path than litigation." The task force, among other areas, is looking at:
Meanwhile, the child support commission has focused on both practical and philosophical issues with child custody and support. According to Cathy Feeney, a member of that commission and current chair of the NHBA Family Law Section, non-custodial parents and obligors have predominated at the public hearings the group has held. Thirty-five non-custodial parents testified, four custodial parents, three joint-custodial parents, and one attorney testified at the four hearings. Feeney reported in a memo to section members that frequently heard comments included:
Among the practical ideas being considered by the commission, which also was charged with reviewing the child support enforcement criminal statute, RSA 639:4, is nudging the child support collection mechanism in New Hampshire from a judicial/compliance model to an assistance/administrative approach. If modifications could be made more easily and amounts made more reasonable, the system could focus on the deliberate violators and assist those who truly cannot afford to pay their support. Such a system could act more quickly and prevent arrearages from building up, heightening hardships and escalating acrimony. Many of these ideas being discussed by both the task force and the child support commission parallel the views of state Rep. David Bickford, a retired tool and die maker, a member of both groups-and sponsor of the initial legislation creating them both. Bickford, a member of the legislature for seven years, has been very active in sponsoring legislation on family law and juvenile matters, and, arguably, is the state's most influential lawmaker in this area. Soft-spoken and passionate, Bickford does his homework and is well-versed on caselaw, legislation, statistics and policy trends in family law, child support, and juvenile issues. He acknowledges that he has some "radical" ideas about how divorce, child custody and child support should be handled, but others who work with him acknowledge that although he possesses a definite "pro-Dads" agenda, he is a respectful collaborator and a good listener. Even though Bickford holds no legislative leadership post (he is a member but not chair of the House's Committee on Children and Family Law), he has also become increasingly effective at seeing his ideas move forward. Last year, for example, he sponsored 13 bills, including four each on divorce and juvenile matters and another bill concerning the Guardian ad Litem Board (of which he is a member.) Three each of his juvenile and family law bills were signed into law, as well as his bill concerning the GAL board. One of the bills he sponsored reversed a line of Supreme Court's decisions that permitted judges to order parents to pay college expenses for children over the age of 18 as part of child support. Bickford is planning to introduce a bill in the next session on the same issue to ensure that the statute is completely retroactive, thus removing a confusion sown by his earlier bill that cast doubt about the validity of pre-existing child support orders that included college tuition. One of Bickford's fellow members on the child support commission, attorney Jeffrey Runge, said he thought that a requirement for complete retroactivity would "open the floodgates" for litigation on past orders. Bickford, a member of the legislature since 1997, said he ultimately believes that child support should be cost-based rather than based on the income of the parents. "We need to look at basic needs, not at replacing the standard of living that the intact family had." In the area of child custody, Bickford favors a presumption of shared physical custody. He said that he believes that a bias exists against fathers in divorce in New Hampshire, a bias that is inherent in the system. In fact, he praises the judiciary as being "receptive" to concepts of joint parenting, but believes that changing the inherent prejudices throughout the system requires a clearer statement from the legislature. "I want something that states clearly that the legislative intent is to allow both parents to maximize their time with their children," he said. "I am not against divorce," he adds. "My interest is that we make sure we do the right thing for kids and that we keep both parents connected. We need to give better direction to the courts as to what 'best interests of the child' means. Courts are all over the map on that."
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