NEW HAMPSHIRE’S FAMILY division pilot program, created in 1995 in Rockingham and Grafton counties to handle all types of family law matters, could be the next victim of budget cuts in the state’s judicial system.

The Family Division was created five years ago as an 18-month pilot project without new money from the Legislature and has continued to operate with minimal funds out of the judicial branch appropriation. The two-year judicial branch operating budget approved this summer by the Legislature was $9 million less than requested by the court system, and the resulting latest budget cuts could pose a serious threat to the future of the Family Division project.

The fate of the Family Division continues to be a topic of discussion among the Supreme Court, Administrative Office of the Courts and Family Division itself. "We want to find a way to continue giving family cases the time and attention they need while still recognizing the obvious bud get limitations on the entire court system," Supreme Court Chief Justice David A. Brock said.

Brock said that the court intends to work closely with the governor and Legislature on the future of the Family Division pilot project. "We need to talk about the Family Division and determine whether it is able to meet its goals with such limited resources," Brock said.

Ultimately, the Legislature has the final say in whether it repeals the legislation that created the pilot program, which could then result in Family Division employees being transferred back to the established trial courts, which handled the work before the pilot project began. Or it could establish funding to fully support the Family Division.

In 1994, the Family Issues in the Courts Study Committee examined the handling of family law cases by the New Hampshire court system. In its January 1995 report, the committee concluded that family issues received "less attention and priority in the judicial system than they deserved and needed." The report also found that resolution of family issues was "often fragmented because of the division of jurisdiction among different courts within the system."

The study committee recommended that a Family Division be created within the judicial branch with comprehensive jurisdiction over family matters, utilizing existing court resources. In the spring of 1995, the Legislature enacted Chapter 152, which directed the Supreme Court to establish a Family Division pilot program in Rockingham and Grafton Counties.

Chapter 152 listed the following goals:

• the respectful treatment of all citizens by justices, marital masters and other family division staff;

• the prompt and fair resolution of family issues by justices and marital masters specially selected and trained to deal effectively with such issues;
• the use of alternative dispute resolution to reduce the adversarial nature of proceedings involving families; and
• the assignment of all family matters of a single family to one family division justice or marital master located in a family division court that is geographically accessible to the family.

Under Chapter 152, the Family Division was given exclusive jurisdiction over such cases as divorce, child custody, termination of parental rights, domestic violence petitions, adoptions, paternity, guardianships, abuse and neglect of children, CHINS actions and juvenile delinquency.

Four Family Division courts each were established in Grafton and Rockingham Counties and began operation in July 1996. Judges and marital masters were selected from the Superior, district (and municipal) and probate courts, based on their interest and experience in family law matters. A supervisory judge was designated for each county – currently Judge Susan B. Carbon in Grafton County and Judge John R. Maher in Rockingham.

The Family Division developed a comprehensive case management system, instituted time standards and developed a tracking system to monitor cases. Court forms for the Family Division were designed to be more "user-friendly," especially for pro se litigants. Case managers were hired in each county to meet with pro se litigants to explain court forms and procedures and the operation of the court system. The use of various forms of alternative dispute resolution have been emphasized in the Family Division to resolve typically adversarial family cases.

But perhaps most importantly, the Family Division strives to afford its cases more individual attention than they might receive in other courts. In the Family Division, a family appears before the same judge for various court matters whenever possible. A separated couple appearing before a marital master for their divorce would later appear before the same marital master for a modification of the child support order, for example. The goal has been to provide consistency and a higher level of involvement from a judge who is already familiar with the family and its situation.

According to Judge Carbon, the legislation establishing the Family Division pilot program indicated that after an 18-month trial period, if found to be successful, the Family Division would be expanded. "And the presumption was that if statewide expansion required funding, that we would come back and ask for it," said Carbon. The legislation required the judicial branch to provide an evaluation and report on the Family Division pilot project by November 1997. Through its evaluation, the Supreme Court found that 92 percent of users of the Family Division "believe that their cases were disposed of within a reasonable period of time." Users also reported "prompt and courteous treatment from court staff…adequate information about the court process and procedures and…sufficient time to present their cases," the Supreme Court found.

Based on this positive feedback, the court recommended that the Family Division pilot project be gradually expanded statewide by July 1, 2001. "The Supreme Court believes that citizens throughout the state should receive the same level of service that the Family Division has been able to provide in the pilot program counties," the court’s letter stated. The court further recommended that $1.5 million in additional funds be appropriated to expand the program to additional counties.

The court requested that if statewide expansion of the Family Division were not approved by the Legislature, the pilot program be terminated in the two pilot counties. "The court believes that it would be counterproductive to maintain dual systems for handling family cases," the court wrote.

But the Legislature did neither – it didn’t fund a statewide expansion of the Family Division, nor did it repeal the law establishing the program in the two counties. The division continues to operate today, but lacks funds to fully staff the project.

It seemed that expansion of the Family Division would come to fruition in 2000, when SB 468, which called for the expansion of the pilot program to two additional counties, passed the House and the Senate. But Gov. Jeanne Shaheen vetoed the bill, citing the cost of the program, which she described as "not cost neutral." Shaheen referred to a January 2000 audit of the Family Division pilot program by the Office of the Legislative Budget Assistant, which determined that the pilot program cost $1.8 million to operate in each of fiscal years 2000 and 2001. That amount primarily represents the reallocation of existing judicial resources from other divisions of the court system into the Family Division pilot project. The failure of SB 468 to provide a way to pay for the cost of operating an expanded Family Division was one of the reasons Shaheen cited for vetoing the bill.

Shaheen added that although "the goals of the Family Division are laudable," the LBA audit found that "some argue the existing court system could have made similar improvements and offered new services given more resources." The LBA’s survey also found "no significant differences in levels of satisfaction" with the Family Division versus the state’s other courts that handle family matters.

Because the Family Division pilot program was created using existing court resources, no additional funds were originally allocated to support it. Eventually, however, the unique features of the Family Division – specifically its use of case managers and its multiple locations in each county – resulted in some expense. But years of under-funding the courts has impacted the Family Division as it has the rest of the judicial branch. "The courts have had to continue to absorb the costs that the program has incurred," said Carbon.

And with this year’s budget woes, the court could be hard pressed to find the money to continue the Family Division project. "The court system has so far absorbed whatever costs the Family Division has created, but the system is strapped for cash right now," said Laura Kiernan, public information officer for the Supreme Court. "The discussion of funding the program has been an ongoing matter. The court is looking at how to continue to provide that level of service that the Family Division provides," she said.

"At a time when court budgets are being cut across the board, asking for any money is difficult," said Carbon.

Those who support the Family Division believe it to be a valuable resource in providing family law cases the time and attention they often require. They also praise the one judge/one family concept that the division utilizes.

"I thought that it was very helpful to take a more holistic look at what’s going on with each particular family," said attorney Gina Apicelli, who now works for the court system on the Greenbook Project, which is examining ways to improve the way NH deals with domestic violence and child abuse. Apicelli was in private practice in Grafton County from 1996 to April 2001, practicing family law. She is a member of the Bar’s Family Law Section.

"I found it effective to have one judge for one family as much as possible, especially because there are often multiple issues facing one family – domestic violence, child abuse, substance abuse," she said. Apicelli said that she supports the Family Division "wholeheartedly" and would like to see it expanded statewide, but only if it can be adequately funded.

John Cameron, a sole practitioner in Laconia who is chair of the Bar’s Family Law Section, agreed, saying that he still considers the Family Division "the right thing to do."

"Keeping all of a family’s issues in the same court before the same judge is important," said Cameron. "The Family Division provides the convenience, attention and insight to these cases that they need."

Cameron added that the program has managed to take some family issues out of an adversarial court setting, and that doing away with that "would be doing everyone a disservice."

However, Cameron believes that budget constraints have hindered the Family Division from realizing its full potential. "A lot of the ‘triage’ – the diversion issues, alternative dispute resolution – are not happening as was originally anticipated," he said.

Maher called the Family Division an "excellent project and good concept."

"It has been tremendously helpful for me to be with one family (through their various issues)," Maher said. "There is also a collegiality of people here all working on the same team in family matters – judges, masters and staff. Because they prefer to work on these kinds of cases, they have an interest in them and value them; that makes this a good project," he said.

Unfortunately, however, lack of support for maintaining or expanding the project – both financially and philosophically – does exist. According to Gov. Shaheen’s veto letter, some have raised concerns over the existence of two systems of family law practice in the state, saying that it creates conflict within the state’s court system. And "police departments have expressed concerns about the transfer of all juvenile issues from local courts to the designated family courts," Shaheen wrote.

All are factors the Supreme Court, AOC and Family Division will have to consider when attempting to determine the fate of the Family Division. Although Carbon and Maher support the project, both have a realistic view of its continuing to operate in these difficult financial times for the judiciary. "The division is very stressed with staff and judge time, and I think those stresses are starting to show. It has become more and more stressful to devote the attention to these cases that they deserve," said Maher.

"I don’t think it’s in the best interests of the public to continue to operate this way," he said.

Although Grafton County’s Family Division is not experiencing the same staffing difficulties, Carbon recognizes that budgetary constraints are affecting all sectors of the court system – including the Family Division. "Across the board, the court system is not being adequately funded. We need more money. We continue to do the best we can every day with what we’ve got, but it becomes a matter of constituent need: The public is not being well served when the courts are not sufficiently funded. That is not unique to the Family Division."

Carbon continues to support the goals of the Family Division, but said she is open to other ways to meet those goals if the project does not survive budget cuts. "The Family Division serves a very useful function: the coordination of cases, one judge for one family – the goals of the Family Division remain as important today as when it started," said Carbon.

"Is there a better way to do it, to serve the public? I don’t know. Everybody is open to that. We want to serve the public the best way we can," she said.

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