In October 2005, the Parental Rights and Responsibilities Act (RSA 461-A) became effective, changing the terminology in parenting cases, mandating the submission of parenting plans, and allowing the court to order mediation.  This law codified both the intent of the legislature and several recommendations by the Task Force on Family Law that change was necessary in both the culture of divorce and the divorce process itself.  The win-lose language of “awarding custody” has been replaced with concepts of parental decision-making or residential responsibility.  Parents are submitting detailed plans outlining parenting time and responsibilities, and are encouraged at every opportunity to draft these plans together, in consideration of the best interests of their children.  The court, where appropriate, is requiring parties to attend mediation even if one or more parties do not agree to mediate.  These provisions advance the systemic change that has been called for by experienced family law professionals, by our elected representatives, and by our citizens themselves.  The purpose of this article is to share with you how the Judicial Branch Family Division is answering these calls.

The Family Division will further advance this change by introducing the First Appearance session, a new approach to parenting cases.  By mid-January 2006, all Family Division locations will be conducting First Appearance sessions.  These sessions have been piloted in Salem and Plymouth Family Divisions for the past three months, so they will be familiar to some practitioners. 

In essence, the First Appearance session is designed to reach as many litigants as early as possible, to explain the court process, to reinforce statutory requirements, and to identify “off-ramps” to resolve cases without extended litigation.

The First Appearance session is borne from a need to rethink the way the courts do business, at least in family cases.  As noted in the recent report by the NH Supreme Court Committee on Justice System Needs and Priorities. ( “A Vision of Justice:  The Future of the New Hampshire Courts,” issued Sept. 2004.)  Once through the courthouse doors...cases should be managed in a professional if not aggressive way.  The ‘one size fits all’ approach of years past is no longer viable...The adversarial model is neither necessarily sought nor desired in every case.  Rather than setting each case onto a trial calendar, all possible options should be made available, through court referral, to see if the conflict can be resolved short of litigation.  Options should be made available early on to assist parties in resolving issues.

The new ability of the court to order mediation is only part of the equation.  Parties have repeatedly commented that mediation would have been much more helpful earlier in the divorce process.  This sentiment is echoed by the recommendation of the Task Force on Family Law that mediation be introduced at the beginning of the court process. (See Final Report of the Task Force on Family Law, November 1, 2004, p. 9.) Moreover, parties failing to attend the required Child Impact Program (“CIP”) until the end of their case may regret their months of animosity upon learning how detrimental adversarial behavior is to children.

 The court’s goal, therefore, was to devise a way to communicate with litigants, at the earliest possible time, on the topics of CIP, mediation, and parenting plans, and to use that opportunity to meaningfully schedule the next event for parties on a more tailored basis.  The result is the First Appearance session.

What Happens at First Appearance? A First Appearance is simply the first court date parties in parenting cases will receive in their case.  It is a group session conducted in the courtroom in which a judge or marital master speaks to the litigants for 15-20 minutes.  The judge or master will explain the importance of parties setting aside their differences to work together and resolve issues concerning their children, and will explore tools available to litigants to accomplish such communication, such as mediation or other forms of alternative dispute resolution.

The court will encourage parties to craft their own parenting plans, convey the importance of attending the Child Impact Program early, explain the role of case managers, review the basics of child support guidelines, and cover the remaining court process for parties unable to resolve child-related issues, including the appointment of a guardian ad litem.

Following this presentation, parties are directed to one of three tracks:  1) those in agreement, who simply need to complete appropriate paperwork, 2) those who will attend mediation, and 3) those who believe that their case is inappropriate for mediation.  The first group of litigants will follow a case manager from the courtroom.  They will receive the necessary documents and either complete them on-site or will be scheduled to return with the completed documents to a case manager conference.   When parties return for their case manager conference, if they find that they have not been able to agree on major issues despite their best intentions, they will be referred to mediation if appropriate.

The remaining litigants at First Appearance will be advised that they will be given dates for mediation with a New Hampshire certified marital mediator, unless the parties believe mediation would be inappropriate in their case.  A handout listing the statutory reasons why mediation may be inappropriate will help parties identify whether they have a valid reason to object to mediation.  Those who have no objection will receive an initial date for mediation, generally within two to four weeks of the date of the First Appearance.  Further mediation dates, depending on the needs of the parties and the complexity of issues, will be scheduled directly between the parties and the mediator.

For those cases in which one or more of the parties have a concern about mediation, the court will conduct a brief hearing to explore the appropriateness of mediation.  If the court finds that mediation is appropriate, the parties will receive a date for mediation.  If the court finds that mediation is inappropriate, the parties will be scheduled for the next court hearing, generally a scheduling conference, or a temporary hearing if temporary orders were requested. 

The following are some questions likely to arise regarding this new approach to parenting cases:

Which cases will be scheduled for First Appearance sessions?  A First Appearance session will be scheduled in all new divorce or legal separation cases involving minor children, and for all new parenting petitions.

Where will First Appearance sessions be held? In all Family Division locations. Current Family Division locations in Grafton County are at Haverhill, Lebanon, Littleton and Plymouth, in Rockingham County at Brentwood, Derry, Portsmouth and Salem and in Sullivan County at Newport and Claremont.  New Family Division locations will open April 28, 2006, in Carroll County at Conway and Ossipee and in Coos County at Berlin, Colebrook and Lancaster.

When will First Appearance sessions be scheduled?  The court will schedule parties for a First Appearance session upon the filing of the receipt of service, or upon acceptance of service, or upon the filing of a joint petition.  The First Appearance session will generally be two to four weeks following completion of service.  Multiple parties will attend the same First Appearance session, the specific number varying and depending on the size of the court.  Our pilot locations have conducted First Appearance sessions every two weeks with 5 to 12 couples at each session.  Larger Family Division locations will likely have a First Appearance session each week. 

Who must attend the First Appearance? The First Appearance session is mandatory for all litigants.  Attendance by attorneys is encouraged, but may not be necessary in all instances.  After experiencing several First Appearance sessions, you will be in the best position to evaluate whether you should attend a session with a particular client, based on the circumstances of his or her case.  Some factors in this evaluation may be whether you anticipate a hearing on the appropriateness of mediation, whether your client prefers that you attend or not attend due to economic circumstances, or whether you wish to be considered during the scheduling of the next event.

As acknowledged in both the Family Law Task Force Report and A Vision of Justice, changing our system will be difficult, but such change must be embraced, and will be worth the undertaking.  We accept this challenge because we believe that families, attorneys, and the court itself will benefit if we can better inform parents of their own responsibility to develop parenting plans, if we can better equip litigants with tools for communicating as parents long after their divorce is final, and if we can better tailor our limited resources to the needs of each case.

 As with any new process, we will study the First Appearance sessions to determine their efficacy, and we welcome your comments and critiques.  We appreciate your patience during our transition to this new approach, as we mark the beginning of improved service to separating parents and their children.

The Hon. Edwin W. Kelly is Administrative Judge of the Family Division. Comments on the process can be directed to family.law@courts.state.nh.us.

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