Bar Journal - Winter 2005
Report of the Task Force on Family Law
By: Nina Gardner, Chair
Editor's Note: This executive summary of the report of the Task Force on Family Law, and the condensed version of the report's recommendations which follows the introduction, were edited by Wendy Ducharme for this edition of the New Hampshire Bar Journal. This executive summary was not published with the initial report, issued Nov. 1, 2004, but it has been reviewed and approved by Task Force chair Nina Gardner. The complete report, with appendices, is available online.
The Task Force on Family Law was created by statute in 2002 to support the creation of a non-adversarial system for families undergoing divorce, separation, custody disputes and other emotionally charged matters. The Task Force's charge was to:
- Gather information on and study the current state of family law and its application in the court system, including current procedures and reporting requirements.
- Develop a comprehensive plan that includes recommendations for modifying New Hampshire's family laws; modifying court rules as they apply to family law; and increasing efficiencies in case processing, reporting and information exchanges.
- Consider how the proposals of the Task Force may be coordinated with family resource centers and family service centers to create an integrated, non-adversarial family law system that provides support to families prior to decisions about divorce, custody or other family law issues.
Twenty-one members - including lawyers, judges, state employees, social service professionals, and legislators - were appointed to the Task Force. Over a two-year period, task force members conducted a comprehensive review of the adversarial process as the only system of family dissolution in New Hampshire. Information was gathered from studies, presentations, public input, and the task force members' own expertise. This information was evaluated through the prism of a child-oriented model in which the needs of children are put first.
Finally, recommendations to reduce the impact of divorce and separation on families and children were formulated. These recommendations derived from debate, discussion and vote. The final report and recommendations reflected a consensus among the members about primary issues and steps toward improvement. On issues where there was no true consensus, no recommendations were made.
The 71-page final report, released on November 1, 2004, contained nearly 100 specific recommendations to shift from a trial-based divorce and child custody system to collaborative one in which mediators help parents resolve conflicts and develop parenting plans. Recommendations range from relatively simple efforts, such as changing "custody", "visitation" and other terminology to words reflecting the continuing role of both parents in each child's life, to far-reaching alterations to the way parents, lawyers and the court system handle divorce and custody cases.
Key recommendations include:
Make fundamental changes in how divorce cases are processed. Although less than 10% of cases ultimately require a trial, shortly after a case is filed, courts begin to schedule them as if a trial is inevitable. In the future, courts should provide "off ramps" that encourage counseling and dispute resolution alternatives. The courts should support a system in which appropriate referrals to mediation, child impact seminars, parenting classes, and support groups are made, to reinforce parental rights and responsibilities. Other forms of alternative dispute resolution should be made available as early in the process as possible, and explored on a case-by-case basis.
Help parents put the needs of their children first. Require parents to file a parenting plan with the court. This requirement will encourage parents to discuss the child's needs and how they, as parents, can best meet those needs. Establish a new Parenting Coordinator position in the court system to help parents manage disputes, adhere to court orders and develop parenting plans.
Empower parties to more actively settle matters relating to their families. Provide greater access to parenting programs, child impact seminars, counseling, community support groups and services, and other forms of dispute resolution alternatives. Undertake a public education campaign to bring attention to the various alternatives to a highly litigated divorce. Develop localized service resource guides and make them available at a wide variety of locations.
Incorporate a course on adult roles and responsibilities into public education. Young adults would be better equipped to handle many of the issues that come up in marriage if they have the tools they need to adapt to their roles and responsibilities as spouses and parents. The Task Force advocates that a course on adult roles and responsibilities be incorporated into the school curriculum and be adopted as a graduation requirement by the State Board of Education.
Conduct ongoing education among the legal community. Redefining and reshaping the relationships among family members is a complex issue - made even more difficult in a highly adversarial process. Lawyers need to serve as "counsel" not just as "advocates" for their clients, helping to identify other alternatives to highly contentious litigation whenever possible. Judicial and legal education about changes such as parenting plans and parenting coordinators is crucial to the success of these efforts. Equally important, ongoing education on topics such as child development, attachment, bonding and effects of divorce on children will help the judicial and legal communities effectively advise families.
The Task Force's recommendations come at a time in which attention is increasingly focused on helping families in New Hampshire's court system. The state's newly established separate Family Division is just one indication that the needs of children and families have become a priority. The report of the Family Law Task Force dovetails with recommendations made by a number of other entities including the legislative Commission to Study Child Support and Related Child Custody Issues, the New Hampshire Court Committee on Justice System Needs and Priorities, and the Supreme Court Task Force on Self-Representation. (See reports elsewhere in this issue.)
The Task Force on Family Law was charged with developing a proposal for integrating a non-adversarial system for families undergoing divorce, separation, custody disputes, and other family matters. (Chapter 250, Laws of 2003) In accomplishing its goal, the task force was ordered to:
- Gather information on and study the current state of family law and its application in the court system, including current procedures and reporting requirements.
- Develop a comprehensive plan, including but not limited to:
- Recommendations for modifying New Hampshire's family laws.
- Recommendations for modifying court rules as they apply to family law.
- Recommendations to increase efficiencies in case processing, reporting and information exchanges.
- Consider how the proposals of the Task Force may be coordinated with family resource centers and family service centers in order to integrate a non-adversarial family law system that provides support to families prior to making decisions regarding divorce, custody or other family law issues.
Chapter 250:3 required the Task Force to provide an annual report describing its activities and findings to the House and Senate Judiciary Committees, the House Committee on Children and Family Law and any other relevant committees, and to submit a final report outlining the findings and recommendations of the Task Force to the Senate President, the Speaker of the House of Representatives, the Senate Clerk, the House Clerk, the Governor and the State Library on or before November 1, 2003.
The final reporting deadline was later extended to "on or before November 1, 2004." (Chapter 25, Laws of 2003) A preliminary report was submitted to the Senate President, the Speaker of the House of Representatives, the Senate Clerk, the House Clerk, the Governor and the State Library as required by the legislation creating the Task Force. This final report completes the reporting requirements of the Task Force.
For the Task Force, a group of 21 diverse, talented, informed, and committed members, this report has been a journey from which we have all gained great understanding and insight. We are wiser about the problems facing families for whom divorce or separation is contemplated and the needs of their children. We are aware of limitations on state and local resources, but made recommendations without regard to their actual implementation costs. For many of our recommendations there are few actual new dollars needed, requiring instead a commitment to do a better job of meeting the needs of the public by introducing and supporting a new approach to family law. The dedication and commitment of the Task Force members over the two-year period has been nothing short of incredible as these busy professionals committed to attending 30 meetings, as well as hours of work preparing sections of the report on their own time. The State of New Hampshire has benefited greatly from their efforts. Hopefully, this introduction will give the reader a sense of the process through which the final recommendations of the Task Force were derived.
The Task Force cares deeply about improving the current system of divorce in New Hampshire by placing emphasis on our most important citizens, our children. As we have learned and shared, we have always kept an eye on those for whom this report is really written, our citizens. It is our hope that as we bring forth these various recommendations, that they will be read and reviewed by constituents in the Bar, and the legislative and judicial branches and the public, with a recognition that change in the culture and process surrounding the way we approach divorce and separation can result in a less adversarial and damaging process, so very important especially for children following a divorce. Although the change may be difficult, the Task Force believes that it will be an effort well worth undertaking.
In submitting this final report, the Task Force is grateful for the cooperation of so many citizens who conveyed to us their concerns regarding the adversarial nature of the divorce process and their thoughts about what we should consider in making our final proposals. We learned a great deal about parenting plans from parents who had found them a way to resolve the acrimony that had divided them, resulting in meaningful parenting roles and better communication for both parents and children. We were also fortunate to have been able to draw upon the experience of many divorce practitioners, experts in the field of domestic violence, child development specialists, parenting coordinators, child impact seminar providers, counselors, family resource center providers, and visitation center providers, among many others. Their insights into the effects of the adversarial process and its impact on children were helpful in fashioning our recommendations.
This report is built upon a series of simple principles derived from the notion that divorcing and separating parties need to consider what is in the best interests of their children. It is a child-oriented model asking the court, parents, and practitioners to put the needs of children first. Each family is a unique construct whose special needs must be recognized during divorce and separation. We urge the courts and divorce practitioners to look at each family individually, and not apply a cookie-cutter approach by either directing all cases to a trial driven schedule, or by being rigid in the approach to making decisions regarding the post-divorce family and its reconstruction. Parents are urged to consider their children's needs, and their developmental stages and the appropriateness of contact with both parents as they share and shape their post-divorce relationship with their children and between themselves. Practitioners must assist their clients in understanding the impact of the divorce itself, and the effect of its adversarialness on children. We ask lawyers to join with those experts who have told us that redefining and reshaping the relationships among family members is a complex issue, one often made more difficult in a highly adversarial process. Lawyers need to serve as "counsel" not just as "advocates" for their clients, helping to identify other alternatives to highly contentious litigation, whenever possible.
The report acknowledges that children should have appropriate contact with both parents, as each individual family construct dictates. Our recommendations aim to foster an environment in which more parties are empowered to actively participate in their important decision-making rather than having a judge or master make the final determination for them. We urge the courts to support a system in which appropriate referrals to mediation, child impact seminars, parenting classes, and support groups are made, to reinforce parental rights and responsibilities. Other forms of alternative dispute resolution should be made available as early in the process as possible, and explored on a case-by-case basis. As current statistics reinforce, less than 10% of all divorce cases in this state end up in trial, although there may be some degree of acrimony and adversarialness in many settled cases. The aim of this report is to expose more divorcing parties, the courts, and those who practice in this area of the law, to the benefits of a less adversarial, more party directed approach. This approach is reinforced by policy statements and recommendations of the report, "A Vision of Justice: The Future of the New Hampshire Courts."
We applaud the efforts of the House Committee on Children and Family Law that created this Task Force. The time now seems right to support the recommendations derived from this comprehensive review of the adversarial process as the only system of family dissolution, and what might be done to reduce the impact that it has on families and children. As we began this investigation we thought we might be alone in taking a hard look at the major factors contributing to adversarialness in divorce. By the conclusion of this report, we are among several other voices suggesting a path for the courts, the public, and the legal community that is more directed to customer service and sensitive to the needs of self represented litigants and families experiencing divorce. A separate Task Force, derived from HB 310, Chapter 103, Laws of 2003, established a Commission to Study Child Support and Related Child Custody Issues. As a result of their specific charge, we have made only one recommendation which deals with amending the statutes to deal with shared and split residential arrangements as these family arrangements, are not defined in existing law. A report of the Commission to Study Child Support and Related Child Custody Issues is due by December 1, 2004.
This undertaking was the first comprehensive look at how divorce and separation and child custody matters are handled in New Hampshire since the Resolution of Family Issues in the Courts Study Committee Report was released by a legislatively created commission established in 1994. Although there have been a number of significant legislative enactments affecting divorce law during the intervening years, the legislature had not commissioned a comprehensive look at ways to decrease the adversarial nature of the process itself. For many involved in divorce, separation, child support, and custody issues, the process has remained very adversarial and in need of further review.
Significant areas of change have begun to develop as this Task Force has been engaged in its study. The Family Division Pilot Project which was enacted in 1995 (which was the product of the Resolution of Family Issues in the Courts Study Committee), after eight years as a "pilot project" it has emerged as the model through which the court system will process family related cases statewide (Chapter 240, Laws of 2004). An implementation committee headed by Associate Supreme Court Justice Linda S. Dalianis, is actively working on a plan to lay out the expansion and will report its findings by December 1, 2004. (Its report, in condensed form, is pbulished in this issue.) The Family Division expansion will be well suited to implement much of what is recommended in this report. As a more locally based court system is developed, with judges and masters working close to where families live and work, ties to many of the resources outlined in this report can be accessed and further developed, and expanded where needed. Family support services can be crucial for many families both pre- and post-divorce. Family Division judges and masters, with opportunities for additional training and a commitment to hear these cases, will be the hallmark of the expansion statewide. Through the Family Division greater use of dispute resolution alternatives can be offered as alternatives and made available to families.
The expanded use of mediation in family cases was advanced by legislation enacted into law on July 1, 2003. Although at first a casualty of court budget shortfalls, greater referral to mediation by certified marital mediators in appropriate cases, has finally become a reality with a slow, steady increase in the number of cases being referred. The legislation also contained a provision for state funding for indigent parties unable to afford the full cost. Mediators participating in this program have agreed to a flat fee payment for the mediation and the parties are required to repay the state for the mediation. This first small step lays an important foundation to expand access to mediation and/or other dispute resolution alternatives, in all appropriate cases. The court system itself is now supporting an initiative to bring other dispute resolution alternatives back into the court system as part of its own service options, rather than as annexed services outside the system and available only to those who can afford them.
Although not focused specifically on the processing of family cases, in February, 2004 the Supreme Court established the New Hampshire Court Committee on Justice System Needs and Priorities. Its report, "A Vision of Justice: The Future of New Hampshire Courts," released in September, 2004, outlines the vision and recommendations for identifying critical needs and a series of priorities aimed at assessing developments which affect the delivery of justice to the public. Many of the recommendations contained in that report again serve as a basis or platform for implementation of many of the proposals outlined in this Task Force report.
It is not insignificant for the future that there is a clarity and commonality to the various voices calling for a "better way of serving the public" in the "handling and processing" of family cases and "empowering individuals to shape their own plans for enhancing parental rights and responsibilities." A statewide family court system can better focus and direct available local resources to the families it serves. This setting has been identified by the court as the means by which it can best serve people at a time when they are facing profound personal issues, in an exclusive venue committed to the fair and impartial delivery of family related justice. It is upon the existing structural platform, which is now being expanded statewide, that these recommendations can be implemented and built upon as an alternative to our current adversarial model. A justice system that is mindful of the need to provide greater access to justice for all can approach the need for further structural, procedural and rule changes with a greater understanding and commitment to the needs of the families that this report seeks to serve. In so many ways, the time could simply not be more right for advancing these recommendations and goals common to the public and to the judicial system and to those who practice family law.
In advancing many of these recommendations we are mindful of the fact that currently nearly 70% of family related cases in our state involve at least one of the parties appearing and proceeding without the aid of counsel (pro se). This factor alone leads us all to consider changes in how family law cases must be handled. In that regard this report supports the major recommendations of the Supreme Court's own Task Force on Self-Representation as contained in its final report, "Challenge to Justice: A Report on Self-Represented Litigants in New Hampshire Court," January 2004. This report adds its voice to the call for greater access to legal assistance, pro bono services, and unbundling of legal services so that those who wish to have the assistance of a lawyer can obtain one. (The "Vision of Justice" and "Challenge to Justice" reports are excerpted elsewhere in this issue.)
This report does not minimize the role that appropriate legal assistance can provide to families. Although we urge the courts to expand the availability of case managers who serve to triage cases upon entry into the marital system, we remain committed to the notion that with professional guidance, post-divorce relationships for children and families can be better and stronger. Our host of recommendations seek to empower parties through greater access to parenting programs, child impact seminars, counseling, community support groups and services, and other forms of dispute resolution alternatives. One of our many recommendations encourages the development of localized service resource guides which should be developed and made available at expanded locations including courthouses, libraries, town offices, schools, and on the Internet.
There are many who have suggested that it is not possible to reduce adversarialness in divorce, separation and child custody cases. They suggest it is an oxymoron. They have smiled smugly at our charge and suggest that divorce is by its nature adversarial. Our research and study suggest that it can be otherwise, or less so, if the parties to these proceedings are made aware early enough, of other means, to cooperate in achieving settlements which enable them to fashion final outcomes which provide for better long term parenting agreements.
It will require a significant cultural change in the way we approach divorce. For all the parties involved in this process, a change in how these cases are processed must begin. Although less than 10% of cases ultimately require a trial, shortly after a case is filed, courts begin to schedule them as if a trial is inevitable. In the future courts should provide "off ramps" that encourage counseling and dispute resolution alternatives. A Judge or Master and a lengthy adjudicated trial should be the last door (or ramp) available, the "court of last resort" when the parties are unable to resolve the matter, themselves. We recognize, however, that those ramps must first be made available.
For the public there must be a rethinking of the absolute costs of the adversarial process especially as it relates to children. The emotional costs of the current process on children has been clearly documented. The best interest of the child should be our first and primary consideration. In addition to stressing the need for the immediate attendance at child impact seminars, parents must be made aware of the opportunity for mediation, one significant alternative to the current trial model. Parties need to be empowered to more actively settle the matters relating to their families. A public educational campaign needs to be undertaken which brings attention to the various alternatives to a highly litigated divorce, so that divorcing parties are familiar with options before they head to the courthouse to file for divorce.
In our child-centered approach, we were deeply affected by testimony regarding the importance of providing a course of study to teach positive "Adult Roles and Responsibilities." Such a course of study in our public schools would expose many young students to problem solving techniques, dispute resolution alternatives, information on finances, cooperative decision-making, and tools and which resources once traditionally imparted in the home. These students would be better equipped to handle many of the issues that arise up in marriages and are often the chief causes of divorce and separation. We believe it is absolutely essential that students be provided with the tools to better adjust to their roles and responsibilities as young adults and parents. Such a course of study is all the more significant as we realize that more than 50% of our children are now raised in families where a divorce or separation has occurred. The Task Force advocates for such courses at the local school level and urges that they be adopted as a graduation requirement by the State Board of Education.
The court system itself must commit to seeking appropriate funds so that its staff is provided significant opportunities for education on family law, recent developments in that law, and studies and research regarding child development, parental roles, and parental responsibilities in post divorce life. The court itself needs to commit training dollars as it expands the family division statewide so that those hearing these cases are as knowledgeable and familiar with the current state of family laws are the practitioners of family law. Many of the concepts embraced in this report, such as parenting plans and parenting coordinators, need to be better understood before they can gain widespread acceptance by members of the bench and bar. Continuing legal education in these and other topics such as child development, attachment, bonding and the effects of divorce on children should be part of ongoing judicial and legal education.
Those practicing in the areas of family law also need to explore the changing landscape, which this Task Force Report embraces. The long held notions of "custody," "support," and "visitation," are value-laden terms which denote concepts of ownership and denial, both of which increase adversarialness. Practitioners and their clients need to understand the value of child centered decision-making and the importance of developing parenting plans which lay the foundation for healthy relationships between children and both parents post divorce, whenever appropriate. It is clear that there are many cases involving imbalances of power, domestic violence and mental illness where such dispute resolution alternatives may be inappropriate. The first step in moving forward is to provide for initial case screening with the aid of a well-trained case manager at the onset of each case. Even highly adversarial parties may be able to focus attention on issues of agreement, if offered the opportunity to do so early enough in the process. The training of case managers must include knowing their legal boundaries as they are assisting parties in understanding case processing and alternatives, while not providing inappropriate advocacy or legal advice.
What follows this introduction is a series of detailed sections outlining and describing the major subject areas and the recommendations promulgated by the Task Force. Our process in arriving at these recommendations was one which involved information gathering from volumes of studies, presentations by professionals, input from the public, and discussion and debate during our two year existence. Our recommendations derive from debate, discussion, and vote. Our report is based upon consensus, mainly on unanimity, but not always total agreement. On those issues where we could achieve no true consensus there were no recommendations brought forward. In this process we were guided by our charge "How does this reduce the adversarial nature of divorce?" How does this promote our goal of serving "the best interests of the children?"
The following topic areas are detailed in the sections to follow: Statutory Changes and Language, Rules and Other Court Procedural Changes, Parenting Plans and Parenting Coordinator, Domestic Violence, Dispute Resolution Alternatives, Educational Components-Bar Member, Judicial Branch, Mental Health, and the Public, Support Services, Protocols, Legal Services and a recommendation for continuation of the Task Force for purposes of implementation and oversight of the recommendations of the report.
With the submission of this report, the first phase of our work is complete.
SUMMARY OF RECOMMENDATIONS
(Explanatory material for some recommendations have been condensed. Some recommendations were not accompanied by explanations.)
Parenting and Parenting Plans
- Change terminology such as "custody" and "visitation" to words reflecting the continuing role of both parents in each child's life. New family-centered policies, which focus on resolving disputes without litigation, should be stated in statutes.
- Encourage an educational campaign about the continuing role of both parents and the terminology change. The message that children do best when both parents have a stable and meaningful involvement in their lives must be integrated into the practice of judicial, legal, and mental health professionals, and delivered to the citizens of New Hampshire. Education is essential for the move away from an adversarial system to take place. The statewide expansion of the Family Division offers a unique opportunity for an education program.
- Put the Child Impact Program and mediation at the beginning of the process. Ideally, parents would attend the Child Impact Program when they were first considering divorce or separation. The requirement to attend the seminar should be enforced and the deadline for participation should not be more than 30 days after the first conference or hearing. Court referrals to mediation should occur promptly at the time of the first hearing or conference.
- Enable court staff to provide information and referrals about parenting and dispute resolution alternatives at the first contact with the court system. Court system staff must be provided significant opportunities for education on family law, recent developments in that law, and studies and research regarding child development, parental roles and parental responsibilities in post-divorce life. The court staff would then be able to direct parents to appropriate services and programs to help resolve problems.
- Require parents to file a parenting plan. If possible, this plan should be agreed upon by both parents. A parenting plan is a written description of how the parents will share the care of their child. The requirement that parents file such a plan will encourage parents to discuss their child's needs and how they can best meet those needs. If the parents are unable to prepare and file a mutually agreeable plan, individually prepared plans will assist the court in preparing an appropriate plan for the parties' child.
- Provide a statutory checklist for determining a child's best interests for use in developing a parenting plan. A checklist of specific factors that influence a child's well-being will help the court make an order for parental rights and responsibilities that is guided by the best interests of the child.
- Amend child support statutes to deal with shared or split residential arrangements. Current statutes provide no guidance about fair levels of child support in split or shared custody arrangements. Clarifying legislation would reduce conflict over support in these situations.
- Establish a procedure for the review and update of child support without reopening the case. Current statutes provide for a review of child support every three years. If one parent will not provide the needed information, however, the parent seeking the three-year review must reopen the divorce or custody case, begin litigation, and ask the court to make the decisions for the family. This result could be avoided in many cases by requiring that the parties exchange in advance the standard information needed to calculate support.
The role of parenting coordinators should be established to assist parents in resolving ongoing parenting disagreements in high-conflict cases. Create a new Parenting Coordinator position to deal with high-conflict and alienated families in domestic relations proceedings in court. The Parenting Coordinator would be a person trained or experienced in managing chronic, recurring disputes between divorced parents, as well as in helping parents adhere to court orders. The Parenting Coordinator would be appointed at the request of both parents or by court order in cases of complicated parenting issues, continuing high conflict, or other situations that affect the best interests of the children.
Traditional Legal Services and Litigation
- When acting as advocates, lawyers practicing family law should counsel their clients to avoid inappropriate conflict. Attorneys must realistically evaluate each client's case to avoid raising false expectations; maintain a civil demeanor with opposing counsel and the parties; and encourage their clients to do the same. There will always be cases in which safety, emergency or other factors require court action. However, in the vast majority of cases, an attorney should continuously assess the prospect that a fair settlement may often be best for the client.
- Attorneys practicing family law should obtain specific non-legal training in family issues. Recommended focuses on areas of child growth and development, family violence, causes of the breakdown in the parent/child relationship, parental alienation, the impact on families of high- conflict cases (especially those involving parenting issues), substance abuse, mental health issues and resources, and alternatives for resolving conflict. Legal training should reflect a shift from a focus on competition and winning to a focus on problem solving and reorganization of the family. While advocating for the individual, an attorney must also keep in the forefront the needs and future life of the family and its youngest members.
- Law schools should offer training specific to family law issues. Continuing legal education seminars and articles in legal publications should stress the benefits of less adversarial methods in family law cases.
- Limited legal representation and task-specific representation, including "limited appearances", should be available to attorneys practicing family law. The Rules of Professional Conduct, as well as court rules, should be revised to clarify the use of such representation. The Family Law Task Force recommends the adoption of the recommendations concerning expanded legal services and limited representation as described in the report dated January 2004 of the Supreme Court Task Force on Self Representation. (See summary of that report elsewhere in this issue.)"Limited legal representation" means that the lawyer contracts with the client to provide services that are either limited in scope or in time. Limited legal representation increases accessibility to legal advice and enables parties to choose legal representation solely for their most important or most complicated issues.
Less Adversarial Alternatives
- Parties should be provided with information regarding dispute resolution alternatives as early as possible. Dispute resolution alternatives include mediation, neutral evaluation, and collaborative law. Mediation is an informal process in which the parties try to resolve their dispute in a private, confidential setting, with or without attorneys, with the help of a neutral, third-party mediator. Through neutral evaluation, a trained, experienced, neutral family law attorney will listen to parties' presentations and predict the likely outcome should the dispute go to trial. Using this prediction, the evaluator will attempt to assist the parties in resolving their dispute. Collaborative law is an alternative to litigation in which both parties and their counsel sign a contract to commit to resolving all issues without litigation or the threat of litigation. If either party later decides to go to court, both lawyers must end their representation.
Information regarding mediation, neutral evaluation, and collaborative law should be available at all court houses, attorneys' offices, police stations, therapists' offices, and faith-based institutions.
Referral lists for trained marital mediators, attorney neutral evaluators, and practitioners of collaborative law should be maintained by all courts.
Parties in mediation should be encouraged to obtain independent legal and financial advice from appropriate professionals during the mediation process.
Attorneys should be encouraged to practice collaborative law, and to inform clients of the collaborative law process as early as possible.
The New Hampshire Bar Association, as well as private providers, are encouraged to sponsor CLE seminars for attorneys, specifically offering education in alternative dispute resolution and collaborative law methods and benefits.
Experienced family law attorneys who are willing to volunteer as neutral evaluators should be periodically trained by the courts or through CLE seminars.
Programs and Services for the Low-Income and Unrepresented Parties
- All attorneys should be encouraged to participate in the New Hampshire Bar Association's Pro Bono Program, so that free legal services for low-income parties can be provided and expanded.
- If both parties qualify for free legal services, a system should be established so that both parties can be represented by a Pro Bono program attorney.Currently, the Pro Bono Referral Service can only make a referral for one party due to a perceived conflict of interest created by serving both parties.
Attorneys should be encouraged to participate in the Reduced Fee Referral Program so that legal services may be provided to those individuals who do not meet the very low-income guidelines of other programs.
If both parties qualify for a reduced fee referral, a system should be developed so that both parties may obtain a referral from the program.As with the Pro Bono Referral Service, a perceived conflict of interest currently prevents both parties from participating in the Reduced Fee Referral Program. (Editor's Note: The Reduced Fee Referral Program is operated through the Bar's Lawyer Referral Service. As with the Full Fee component of LRS, Reduced Fee operations do not include screening for conflicts. Thus, in most instances both parties in a case may and routinely do receive referrals to panel attorneys.)
The state and federal government should be encouraged to support and expand funding for New Hampshire Legal Assistance (NHLA) and the Legal Advice and Referral Center (LARC). The Legal Advice and Referral Center provides a statewide toll-free telephone hot line for counsel and self-help advice. The demand for services from LARC is overwhelming, but the program is unable to expand without increased financial support. Budget limitations prevent New Hampshire Legal Assistance from delivering family law services, but it does provide representation for victims of domestic violence.
Attorneys should be encouraged to participate in specialized programs such as the DOVE (Domestic Violence Emergency) program as a means of responding to emergency situations. These programs allow individuals to obtain specialized legal representation focused on one particular issue.
The Task Force supports the recommendations of the Task Force on Self Representation that Internet access be expanded for consumers of legal services, both through access to court websites, as well as by availability of computers at the courthouse. Individuals are empowered to make their own decisions by making resources readily available through the Internet.
Lawline programs should be supported and promoted. Such programs provide information by telephone to resolve simple legal questions and encourage callers to obtain legal representation to understand and protect their rights in more complex legal matters.
Every New Hampshire attorney and every New Hampshire bank should be encouraged to participate in the Interest on Lawyers' Trust Accounts (IOLTA) Program to assist in the funding of legal service programs. Those who do participate and those banks that offer favorable rates to support the IOLTA Program should be recognized and honored.
- Courts need to scrutinize cases where provisional custodial issues are presented to provide prompt temporary resolutions of the custodial dispute. The period between the initial filing of a first pleading where children are involved and the first court hearing can be an unsettling period of limbo, with each parent "jockeying for position" to establish himself or herself as the de facto primary custodial parent. Considerable conflict can be avoided if the courts immediately provide attention to cases involving custody disputes. Courts operating without case managers need to schedule these cases at the earliest possible time, ahead of others on their docket. Courts operating without case managers, but which have in place active networks of neutral case evaluators or mediators, should consider using these professionals to hold sessions with the parties to provide education, resolve disputes, or facilitate early scheduling before a judge. Courts with case managers should schedule a case manager conference to bring the parties together to discuss custody disputes and inform the parents of alternatives to conflict and litigation.
- Courts should be an information source and referral center for parties, and a decision-making forum only as needed. Courts need to encourage parties to actively seek the alternatives of mediation, family therapy, collaborative law, and neutral evaluation. The benefits of alternative dispute resolution need to be emphasized by judges, court clerks, case managers, attorneys and non-legal professionals alike, because historically the courts have been the only source of resolution for family law disputes. Courts should provide specific information about sources for alternative dispute resolution services by keeping lists of therapeutic practitioners, neutral evaluators, and mediators in the area.
- Courts should be encouraged to make referrals in appropriate cases to mediation and neutral evaluation, and be given the ability to order parties both to go to and to pay for such services as family resources may permit. Mediation, collaborative law, and neutral evaluation should become the norm, not the exception in family law disputes not otherwise resolved by the time the case comes to court. Most families have some financial ability to pay for such interventions, and the courts should begin to order parties to attend, to select the mediator or neutral evaluator if the parties cannot agree on the choice of professional, and to order the parties to pay for a certainminimum number of sessions.
- Cases in which the permanent agreement is filed with the petition should pay a smaller filing fee. Lower filing fees for a resolved case will certainly not prevent contested cases, but they would provide a persuasive financial incentive to settle.
- Self-scheduling for final uncontested hearings should be available in all courts that require that parties attend a final uncontested hearing. Final hearings are often perfunctory events that require court resources and cost the parties time lost from work and attorney fees. If the final uncontested hearing concept is kept at all, allowing self-scheduling for final uncontested divorce cases in all courts will save courts and parties money, as well as give parties a greater sense of control over their own cases. Self-scheduling works well in the counties that are already using it.
- The Vital Statistics Form needs to be made available to parties in electronic form, rather than the current required typewriter form. The current form, which is required from litigants in all divorce and legal separation cases, must be typewritten on the preprinted form given out by court clerks. Few people still own typewriters. It would be much more convenient if this form was available in downloadable format and filed like all other papers in any other case. If the durability of paper is an issue, the record keeper should make arrangements to reproduce the form in a medium more durable than computer paper.
- Courts should enable joint petitions to be used not only for divorce or legal separation cases, but also for paternity or unwed child custody cases. The joint petition eliminates the need for formal service of process, and can reflect a more cooperative attitude between parties who agree they need a divorce or legal separation, even if they may not agree upon the terms for the final agreement. There is no reason that joint petitions could not also be made available for paternity determinations or for custody cases where the parties are not married.
- A series of protocols in custody cases needs to be developed by the Family Division to provide consistency in the handling of such matters in the various courts. Developing written protocols for domestic relations cases in the superior court and family division courts presents the opportunity to think about how cases should be handled, and can provide benchmarks for measuring how the different courts are handling their dockets. Greater uniformity in decision-making can be expected to result. Predictability in the process tends to reduce acrimony between the parties because the array of possible outcomes that each party can expect is diminished.
Courts should develop protocols for supervised visitation or supervised exchange orders. There is no uniform procedure in the courts for custody cases where supervised visitation or supervised exchange is ordered. Frequently, court orders do not iniclude detailed court findings of the risks giving rise to the supervision requirement. Such findings are important to inform the parties and supervisors of what needs to occur or not occur in the visits; to measure how the risks are or are not changing over the period of the supervision requirement; and to determine when and how restrictions can be eased. The use of forms reminding judicial officers of protocols would help courts capture the points that need to be addressed in an order for visitation or supervised exchange.
ALTERNATIVE DISPUTE RESOLUTION
- Courts must shift their approach toward helping families resolve disputes related to parental rights and responsibilities so that decisions regarding children are made by parents rather than judicial officers. Child custody decisions currently require the court to predict future parental and child behavior and relationships, and to focus on the placement of a young individual who has a limited right to participation. The courts often end up moving past their traditional role in making decisions based on applying the law to past acts, and instead become responsible for overseeing the restructuring of the family. When problems arise, family members resort to the courts. Ways must be found to empower family members to learn to resolve their disputes with court intervention as a last resort.
- Information about dispute resolution alternatives should be available when families first consider divorce or separation, and court staff and judicial officers should provide this information and/or encourage the use of these alternatives. For parties to use these alternatives, they must first know that they are available and understand how they work. New ways must be found to educate the public. Possible methods include information kiosks, advertising, earlier attendance at the Child Impact Program seminars, case managers to explain alternatives, or mediators stationed at the courthouse. However, only when the court makes these alternatives a part of the services which it provides will the parties have a real opportunity to make choices about dispute resolution alternatives.
Courts must make mediation mandatory in appropriate cases involving parental rights and responsibilities. Mediation offers a way for the court to extricate itself from involvement in the day-to-day life of families and instead turns the decision-making over to those most affected by the decisions. Mediation offers parties numerous benefits including reduced hostility, better understanding of different points of view, reduced costs, more durable agreements, improved co-parenting relationships and better communication. Despite the benefits, participation in New Hampshire's current Custody Mediation Program has been low because both parties must voluntarily consent to attend mediation, there has been a lack of awareness of mediation and its benefits, and attorneys have been slow to embrace this alternative. More information about mediation must be made available when family members first consider divorce or separation, mediation must be part of how attorneys practice, and the current statute (RSA 458:15-a) should be amended to make the process mandatory with inappropriate cases exempted from the process.
- Mediation must occur as early as appropriate. Settlement rates at mediation are significantly higher when mediation occurs early in the case.
- The mediation process should focus on encouraging empowerment, fostering recognition and enhancing communication. Mediation processes that focus solely on resolving the legal issues associated with divorce often fail to understand the importance of the underlying relational problems impacting family dynamics and how they impede the parties' abilities to solve problems. Studies indicate this type of mediation process settles fewer cases and those that do settle will most likely be back in court as frequently as cases that were litigated or where settlement was negotiated by the parties and their attorneys. Instead, mediation must focus on enhancing the participation, control and self-determination of the parties.
- Parties must pay for mediation absent court or state funding. The state should fund mediation in cases where appropriate. The state should provide the judicial branch with funds to conduct its family mediation program. The state benefits from the program by the reduction in the hostility and emotional issues associated with divorcing parents and their children. Those issues create community costs resulting from increased community mental health usage, increased school problems, increased alcohol dependency, increased calls to law enforcement, and increased usage of court resources, among others. Currently, RSA 458:15-a provides for parties who are indigent to qualify for payment of their mediation costs from the Guardian ad Litem/Mediator Fund. Other parties are required to pay the mediator $60.00 per hour, a rate well below the mediator's market rate.
Courts should encourage the continued use of Neutral Evaluation and have the discretion to require parties to attend in appropriate cases. A trained evaluator provides the parties with an independent perspective of how their case might be resolved by the court. This evaluation serves as a reality check and lets the parties reassess the merits of their respective positions. This reassessment is often all that is needed to move the dispute toward resolution.
Neutral Evaluators should be trained and qualified by the court. To ensure the quality of the services provided to parties, the court must be responsible for qualifying the evaluators used.
Neutral Evaluators should be paid for their services either by the court or the parties. The current use of volunteers as Neutral Evaluators creates availability and quality control problems. Paying evaluators will address these problems. Evaluators will be willing to give the court the necessary time because they are paid for their services. In addition, the court can enforce standards and ensure the quality of the services provided.
The use of Collaborative Law should be encouraged, and information about it should be available when families first consider divorce or separation. Through Collaborative Law, the parties and their counsel commit themselves to resolving all issues without litigation or threats of litigation. If either party later decides to go to court, both lawyers must end their representation. Information about this dispute resolution alternative should be widely available and court staff should mention this program to people who visit or call the court.
- Educate professionals and the public on the benefits of dispute resolution alternatives that reduce acrimony and adversarialness among divorcing and separating parties. All professionals who assist those facing divorce or separation should be aware of mediation and its benefits, and should inform the parties of those benefits. These professionals include therapists, lawyers, judicial officers, and other court personnel.
Make lists available to judges and court clerks of certified marital mediators who have contracted with the court.
Require judges to inform the parties of the benefits of mediation, where appropriate.
If the judge deems mediation is appropriate, the judge shall order the parties to attend at least one mediation session with continuation of the mediation left to the discretion of the mediator.
- Clarify role of counselor. If the court orders counseling for any party, whether adult or child, it shall define the role of the counselor, the identity of the counselor (after obtaining the counselor's consent), and shall ensure the confidentiality of the counselor's relationship with the person, as well as the method of payment and the number of sessions required. Court-ordered counseling is currently ill defined. Creation of a protocol checklist is a way to delineate the expected components of the counseling. The sealing of records was also noted as a needed addition so that the counseling will be as effective and safe as possible.
When counseling or psychological testing is court ordered, insurance companies should not be allowed to deny coverage. Within the last several years, insurance companies have refused to pay for court-ordered therapy because they question the medical necessity of the counseling and are concerned about its open-ended nature. Clients have consequently been required to pay out-of-pocket at a cost that may become prohibitive and thus may interfere with completion of treatment. A statutory change requiring insurance companies to pay for treatment is warranted in court ordered family cases.
Educate mental health counselors to empower clients in divorce cases. Communication with their ex-partner must occur to support cooperative parenting plans and to utilize mediation in order to safeguard the best interest of the child or children, as long as there is no apparent danger to the parties or to the children.Counselors are in a unique position of influence. An education campaign should be developed and submitted to the various mental health state organizations to help counselors empower their clients to communicate and work through differences in divorce cases. The campaign should start with an article to the New Hampshire Psychology Association's monthly newsletter.
Create a list of mental health counselors who will agree to provide services to the court. Recruiting counselors who adhere to the principles outlined above and submitting their names to the court will increase the likelihood that counseling will be supportive of cooperative parenting, thus potentially reducing contentiousness between the parties. These counselors would be self-referred and would be informed of the creation of such a list by their state mental health organizations. When these counselors are assigned to a client they would receive a copy of the court protocol, which would outline the information required in Recommendation #1.
Child custody evaluations completed by mental health counselors tend to promote acrimony and divisiveness and thus should be used only in the rarest cases. Evaluations should be ordered only in those cases in which the mental instability or emotional disability of a parent affects their parenting. If these evaluations are warranted, then the evaluation should comply with the standards outlined by the American Psychological Association and the recommendations should be in conjunction with the Guardian ad Litem's investigation. Evaluations should not be substituted for the Guardian ad Litem's comprehensive recommendations.
- A class on Adult Roles and Responsibilities should be a graduation requirement in the New Hampshire Public School Standards. It is important to have students prepared to be productive and successful members of a family, workforce and community. Curriculum should be offered within our education institutions that provides a foundation for their overall success.
- Instruction and curricula must be geared toward: a) communication skill development; b) conflict resolution; c) healthy adult relationships; d) life management skills; e) premarital education; f) financial responsibility; g) child custody and divorce statute education; h) consequences of divorce on children and families.
- Communication and conflict resolution skills will be taught throughout the K-12 school years.
COMMUNITY/PUBLIC AT LARGE
- Encourage Family Resource Centers and others to offer new programs and expand current programs on topics of concern to families dealing with difficulties and stress, such as: a) parenting skills, including the role of the step parent; b) communication skills; c) conflict resolution skills; d) financial management; e) marriage preparation skills; f) alcohol and other drug use; g) mental health issues. It would be more productive to our society to assist families before they reach the court. Support and educational resources for families, particularly programs to enhance parenting skills, may help families stay together and reduce adversarialness during divorce or separation.
Present information in a variety of locations to reach people where they are, such as courts, family resource centers, medical facilities, community agencies, attorneys' offices, faith-based organizations, public schools, libraries, mental health professionals' offices, and the workplace. While traditional classroom programs remain an option, busy work schedules and long work hours make it hard for many people to attend formal information sessions. Information should be disseminated in locations frequented by people as they go about their daily lives.
Offer information in a variety of formats, such as brochures, videos, classes, websites and toll-free numbers for Parent Hot Line, financial assistance and alcohol and other drug abuse. Information should be written at a basic reading level and presented in a variety of formats to be readily accessible to people of different educational levels and learning styles.
Develop regional directories of available resources, including state services, family , resource centers, community organizations, and educational resources (including UNH Cooperative Extension).
EDUCATION FOR SPECIFIC AUDIENCES
Child Impact Program
- Increase the availability, including convenient locations and times that the program is offered.
- Parents need to take this course as early as possible in the litigation process.
- Expand the program while keeping it affordable. The four-hour course should be expanded to six or more hours.
- The expanded program should include the effects of a blended family on children and how parents should address that issue.
- Pilot a "refresher" course to be taken six months to a year after the initial class.
The Child Impact Program is currently required for parents with minor children who are involved in litigation. While the program has received very positive evaluations, it should be expanded and offered earlier in the litigation process to help parties minimize the effect the conflict has on their child/ren.
- Attorneys practicing family law should obtain training in the areas of child growth and development, family violence, causes of the breakdown in the parent/child relationship, parental alienation, the impact on families of high conflict cases (especially those involving parenting issues), and resource and alternatives for resolving conflict.
- Law schools should offer training specific to family law issues as outlined above in paragraph A.
- The New Hampshire Bar Association and private providers are encouraged to sponsor Continuing Legal Education Seminars for attorneys, specifically offering education in dispute resolution alternatives and collaborative law methods and benefits.
- Experienced family law attorneys willing to volunteer as neutral evaluators should be periodically trained by the courts or through Continuing Legal Education seminars.
- Legal professionals and court staff involved in domestic cases should discourage the win/lose dichotomy.
- Explore options for non-attorney legal professionals to receive developmental training in appropriate ways to interact with children of separated parents during the litigation process.
Legal training in family law areas should reflect a shift from a focus on competition and winning, to a focus on problem solving and reorganization of the family. It should encourage increased consciousness of the fact that, while providing representation to an individual, the attorney must also keep in the forefront the needs and future life of the family and its youngest members.
- Judicial and Court Staff
Selection and Education
- The Judicial Branch should establish minimum continuing education requirements exclusive to family law for all judges and masters hearing family related matters.
- All judges and masters transitioning to the Family Division should not only be given priority in family law judicial educational opportunities, but should also have a decided interest in hearing such matters.
- All court staff, including clerks and case managers and especially staff who interact with the public, must have an interest in and commitment to family matters.
- All judicial staff should receive appropriate training in understanding the stresses and pressures on families.
- Case managers and other court staff should be provided appropriate educational opportunities to enable them to understand the various options available for alternative dispute resolution.
- The judicial system should provide training to judicial officers and staff on the benefits of dispute resolution alternatives in family law matters.
To be effective, judges, masters, and court staff must truly care about families and children. They should have an understanding of the dynamics affecting individuals and the skill of being able to interact with the parties in family cases in a patient, understanding and compassionate way. Ongoing training will help judges and staff best respond to the needs of New Hampshire families. Specifically, training on the benefits and availability of dispute resolution alternatives will help the judiciary empower individuals to resolve their own disputes, rather than setting all cases on the traditional adversarial track.
- Mental Health Professionals
- Educate professionals about the harmful effects of divorce on children and the benefits of counseling when appropriate and when the marriage is salvageable.
- Educate professionals about the benefits of dispute resolution alternatives and mediation when appropriate, and if the marriage is not salvageable.
- Educate mental health professionals to recognize and quickly address the early indicators of family violence.
- Educate professionals about the harmful effects on children of even minor physical exchanges observed between adults, as well as physical disciplinary techniques, i.e. slapping, spanking, etc.
- Educate professionals about the benefits of cooperative parenting if family violence is not present or continuous.
- Educate professionals about the deleterious effects of their attitudes when they align solely with the adult client and ignore the child's need for both parents.
- Include statements of intent as to parties making their own decisions and both parents being substantially involved in raising their children. The Task Force proposes refocusing both the culture in New Hampshire and our legal system on parties making their own decisions and both parents being substantially involved in raising their children. Except for RSA 458:15-a (the current mediation statute) the divorce and custody statutes primarily consist of the procedures and legal standards for litigation. The new family-centered policies should be stated in the statutes. By inserting these principles in the statutes, all readers, whether parents, Guardians ad Litem, other parties, lawyers, or judicial officers, will know the background of and reasons for the specific statutory provisions. A statement of principles would assist the courts in interpreting the statutes relating to custody (to be called "parental rights and responsibilities.")
Divide the statutes on the marital status (divorce, legal separation, annulment etc.) and those concerning children in divorce and paternity cases into two separate chapters. Currently, RSA 458 contains procedural and substantive law on divorce and legal separation, as well as statutes on child custody, custodial rights, and other child-related topics. As a result RSA 458 is difficult for anyone but experienced lawyers to read. The new "parental rights and responsibility" provisions, along with other provisions concerning children currently in RSA 458, need a new separate chapter. Parents should be able to go to one place in our laws to review all the public policies, procedures, and substantive laws that apply, regardless of marital status. This would leave the laws on marital status in one chapter and the laws on children in another.
Amend statutes so that the terms "parenting," "Parenting Plans," or other similar terms replace the term "custody." The current statutory language emphasizes the "rights" of parents, rather than the joint responsibility of parents for the care and nurturing of their children, whether the parents are married, never married, or formerly married. "Custody" is seen as something that is "won' or "lost," as though the child was a possession or a game. Changing the language is not enough by itself, but it is an essential component of the changes needed in the laws that govern the reconstruction of the family.
Require court procedures that support and encourage divorcing and separating parents to make decisions for their children and for themselves. The procedures set out in RSA 458 (divorce and custody) and RSA 458-C (child support guidelines) are oriented to litigation and to judges making the decisions. The only exception is the (now voluntary) court-referred mediation statute, RSA 458:15-a. Instead, procedures should be "family friendly." The statutes could provide an incentive for separating or divorcing parties to settle by allowing a lower filing fee in such cases. Statutes could also permit a second party to pick up divorce papers at the courthouse or from his/her attorney, rather than through an intimidating visit from a sheriff.
Give the courts authority to require people to go to mediation where appropriate. In New Hampshire, only parties who agreed to try mediation can be ordered to mediation. Throughout much of the United States, however, court-referral mediation programs authorize the judge to order unsure or unwilling parties to try mediation. A proposed statute would give the courts the power to mandate mediation in New Hampshire except in cases with specific factors that make mediation inappropriate.
- Require the exchange of specific standard documents and information, upon request. A statute that requires the provision/exchange of standard information would solicit the material needed in a divorce or custody case in a less adversarial, more cost effective manner than the current system using discovery and interrogatories.
Amend the child support statutes to deal with shared and split "custodial schedules" (to be known as parenting plans) and other support-related problem areas. The Child Support Guidelines (RSA 458-C) provide no guidelines for fair child support in split or shared custody arrangements. Clarifying legislation would reduce conflict over proper levels of support in this situation.
- Provide that health insurance coverage for counseling may not be denied because the counseling is court-ordered. Some health insurers refuse to pay for counseling services that are otherwise covered by their policies simply because the services are Court-ordered. The General Court has recognized and addressed this problem in juvenile cases by prohibiting such discrimination by insurers. A similar statute is needed for divorce and custody cases.
- Change terminology such as "custody" and "visitation" to "parenting rights and responsibilities" to reflect the continuing role of both parents in each child's life. "Custody" is something that is "won" or "lost," as though the child was a possession or a game. "Visitation" seems to convey that the parent who does not have primary physical custody just visits with his or her children, rather than providing important parenting input. Changing the language for these and other terms to reflect the joint responsibility for parents for the care and nurture of their children is not enough, but it is an essential component of the changes needed in family law.
Use plain language in statutes, rules, and court orders. It should not require a law degree, or even a college degree, to understand one's rights and responsibilities or the court procedures in a divorce or custody case.
Use terms "mother" and "father" or the parties' names in court orders, rather than "petitioner" and "respondent." People facing divorce and custody disputes do not commonly use the terms "petitioner" and "respondent" and find them confusing. By using the parties' names or terms describing their relationship to the children or each other, the meaning is clear and mistakes are minimized.
Define statutory and legal terms when they are used. People should be able to understand their legal rights and responsibilities, especially concerning their children's family life. If technical terms are used in statutes, rules, and court orders, they should be defined in those documents.
- Encourage a public campaign to highlight the harmful effects on children of even minor physical or verbally threatening exchanges between adults as well as various physical disciplinary techniques. A child's treatment by parents and adults, and what a child observes, often influences future aggression and assaultive behaviors. Support is needed for Crisis Centers to continue and expand their ongoing efforts to educate children, students, adults and communities about the causes and prevention of violent behaviors.
Encourage funding for intervention programs to reduce the harmful effects of domestic and family violence on adults and children and promote behavioral alternatives. The programs would be offered soon after domestic and family violence has been identified. Children learn from how they are treated and what they observe. Children who are exposed to domestic and family violence need early intervention if they are to avoid the formation of unhealthy behaviors.
Encourage judges and family law attorneys toparticipate in comprehensive training on domestic and family violence. Topics should include but not be limited to: the dynamics and continuum of family violence, the similarities and differences of men and women as aggressors, assessing safety and risk factors, and determining safe parenting arrangements and visitation orders. Judges and attorneys need to have a more thorough knowledge of the components of domestic and family violence in order to more precisely address it, given its varying presentations and evolution.
Encourage judges to use protocols that comply with The New Hampshire District Court Protocol on Domestic Violence, as well as recent case law, in developing final Protective Orders and follow-up orders. Circumstances should be more thoroughly reviewed by judges so that a protective order is in proportion to the alleged offense, and considers the needs of and the effect on the safety of the children. A more formal protocol needs to be established that will assist judges in making appropriate protective order decisions.
In cases where Protective Orders are issued, and where counseling is appropriate, encourage the court to utilize a protocol for such referrals. Protocols to Include: referring the aggressor to a batterer intervention program that is in compliance with the New Hampshire Batterer Intervention Standards; the victim to a crisis center which meets the criteria in RSA 173-C for safety planning; and children to a counselor with expertise in family violence and trauma, to assess if they need trauma treatment or other types of counseling. Prevention and treatment programs play a vital role in breaking the cycle of abuse within relationships and families.
Establish guidelines for assessing the level of risk of harm and/or of abduction, as well as the comprehensiveness and duration of safety precautions needed to protect the child, before limiting access between a child and alleged perpetrator parent. The emotional harm of such limitations should also be taken into account. In addition to referring to RSA 173-B:5,I (6) for assistance in determining appropriate parental contact plans, judges should be encouraged to use other evaluative mechanisms to determine the safest and healthiest parent-child arrangement.
Encourage judges to be more definitive about the consequences of filing a false Domestic Violence report and to reiterate to the reporter that he/she is under oath to tell the truth. Petitioners should be informed of the need to be specific about the factual basis of their allegations, which may need to be addressed by a Protective Order. Plaintiffs should be educated by the court clerk or the judge about the grounds for ordering a Protective Order, the necessity of specific facts, and the consequences for misrepresenting the facts. The Petition Form itself should be revised to allow for complete presentation of the facts by giving increased space on the form and encouraging use of additional pages if necessary to fully describe what the Petitioner intends to allege in support of the request. The judge should not issue a Protective Order unless the grounds on which the Protective Order would be based are clearly apparent from the written petition. In situations in which the Petitioner has not or cannot express the factual basis for the Petition (meaning both the alleged criminal act, or the attempted criminal act, and the reasonable basis for fear) the judge can and should take sworn testimony from the Petitioner ex parte. In this case, the judge's ex parte temporary Domestic Violence Order should recite in text the portion of the Petitioner's testimony upon which the Order is being granted. In this way, the documents the Defendant receives will clearly provide fair notice to the Defendant of the allegations, so that a fair hearing on the Petition can be held.
Judges should instruct the parties at the time of the Final Hearing about the need to adhere to the Order as well as to how to petition the court for a modification of the Order based upon RSA 173-B: 5, VIII. Since circumstances may change for the plaintiff and the defendant, judges should instruct the parties at the time of the final hearing on how to petition the court for a modification of the Order. At the time of the service, law enforcement officials should instruct the defendant that it is her/his responsibility to refrain from any contact regardless of any action by the plaintiff.
Establish a procedure in Domestic Violence cases for the courts to periodically review the court's order concerning access to the child or children. It may be in the best interest of the child to modify the orders of supervision. Parties often need instruction on how to petition the court for such modifications. This information should be available through courts, supervised visitation centers, mental health providers and attorneys. Furthermore, the courts should have in place review mechanisms to reassess the components of the Protective Order to best serve the child.
Continuation of the Task Force on Family Law
The Task Force on Family Law will be extended for the purpose of:
- Monitoring and promoting the implementation of the recommendations made in its report of November 1, 2004. It is important that there be follow up to the Task Force Report. The members need to work with the legislature, governor, courts, Bar Association, mental health professionals, educators, and other interested parties to promote the changes that will make our system less adversarial. It is also crucial that these recommendations be promoted to the public to gain support for a less contentious process that will be of benefit, especially to children.
Reporting on the progress of its recommendations on or before November 1, 2006. This report should detail the status of any legislation proposed by the Task Force, as well as other proposed or enacted legislation relating to issues included within the Task Force's Final Report of 2004 and consistent with its original legislative mandate in Chapter 250, Laws of 2002, as amended.
Serving as a resource to the courts, legislature, professional organizations and the public.
Continuing to investigate alternatives to the court system to determine parental rights and responsibilities. There may exist better alternatives to a court-based resolution process. Some were discussed as part of this committee's deliberative process, while others were never explored. Given the time constraints and the magnitude of the mission of this Task Force, additional time is needed to supplement this investigation. Failure to do so may represent a lost opportunity to better serve children and their parents.
NEW RSA CHAPTER DEALING WITH ALL CHILD RELATED ISSUES NOW COVERED IN RSA 458 AND NEW SECTIONS SUPPORTING TASK FORCE RECOMMEDATIONS
- RSA KIDS:1 - Definitions
In this chapter:
- "Decision-making responsibility" means the responsibility to make decisions for the child; may refer to decisions on all issues or on specified issues.
- "Mediation" means a process in which a neutral third party facilitates settlement discussions between parties.
- "Mediator" means a marital mediator, certified pursuant to RSA 328-C, who has contracted with the court to participate in court-referred mediation under this section.
- "Parental rights and responsibilities" means all rights and responsibilities parents have concerning their child.
- "Parenting Plan" means a written plan describing each parent's rights and responsibilities.
- "Residential responsibility" means a parent's responsibility to provide a home for the child.
- "Residential schedule" means the schedule of when the child is in the home of each parent.
- RSA KIDS:2 - Allocation of Parental Rights & Responsibilities
- Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to:
- Support frequent and continuing contact between each child and both parents;
- Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced;
Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals if necessary, unless there is evidence of domestic violence, child abuse or neglect;
Grant parents and courts the widest discretion in developing a parenting plan; and;
Consider both the best interests of the child in light of the factors listed in section 10 below and the safety of the parties in developing a parenting plan.
- In a divorce, legal separation, annulment, paternity, or other case between parents concerning their child, the court shall make an order concerning parental rights and responsibilities of any minor child of the parties. The court may order parental rights and responsibilities to be allocated between the parents on such terms and conditions as serve the best interests of the child.
An order on parenting rights and responsibilities shall be in the form of a parenting plan including decision-making responsibility, parenting schedule, and residential responsibility.
In order to implement an order allocating parental responsibilities in matters where rights and responsibilities are not in dispute, both parents shall submit an agreed upon parenting plan for the court's approval. The court shall accept such plan unless the court find in writing why the plan would not be in the best interests of the child.
In matters where parental rights and responsibilities are in dispute, each parent shall submit a parenting plan for the court's approval.
If no parenting plan is submitted or if the court does not approve a submitted parenting plan, the court may order mediation to assist the parties in formulating or modifying a parenting plan.
If the parents do not agree after mediation, or if there has been evidence of domestic violence between the parties, child abuse or neglect, the court shall formulate a parenting plan by taking into consideration individual plans submitted by the parents, considering the factors in Paragraph 10.
Except as provided in subparagraph (b), there shall be a presumption, affecting the burden of proof, that joint decision-making responsibility as to health care, education, and religious training is in the best interest of minor children.
- If the court declines to enter an order awarding joint decision-making responsibility, the court shall state the reasons for denial of an award of joint decision-making responsibility.
- If the court declines to enter an order awarding joint decision-making responsibility, the court shall state the reasons for denial of an award of joint decision-making responsibility.
- If there has been a finding of abuse as defined in RSA 169-C:13, the court shall consider it as evidence in whether joint decision-making is appropriate.
- The court may order a parent who is awarded decision-making responsibility for a certain matter involving a child's welfare to inform the other parent when a major change in that matter occurs.
- Whether or not there is joint decision-making responsibility, there shall be a presumption that it is in the best interest of the child for both parents to have equal access to all educational, medical, and other records. If the court declines to order such equal access to records, the court shall state in its decision the reason for denying such order.
In making an order for parental rights and responsibility, the court shall be guided by the best interests of the child, and shall consider the following factors:
- The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
- The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
The child's developmental needs and the ability of each parent to meet them both in the present and in the future.
- The quality of the child's adjustment to the child's present school, and community and the potential effect of any change.
The ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including written physical and electronic contact, except where contact will result in harm to the child or to a parent.
The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.
The support of each parent for the child's relationship with the other parent by respecting the parenting schedule of the other parent
The relationship of the child with any other person who may significantly affect the child.
The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children.
Any evidence of abuse, as defined in RSA 173-B:1 or RSA 169-C:3, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
The court may consider any preference shown by the child. Considerable weight may be given to the stated preference of a mature minor, provided that preference was not unduly influenced.
If a parent is incarcerated, the court shall consider the reason for and length of the incarceration and, any unique issues that arise as a result of incarceration.
Any other additional factors the Courts deems relevant.
- The paramount and controlling consideration in allocating parental rights and responsibilities is the overall welfare of the child, and there is no one formula for all cases, each case being determined by its particular facts.
The court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.
The court may appoint a Guardian ad Litem to represent the interests of the child according to RSA 463:4.
The procedure in cases concerning parental rights and responsibilities, including child support, shall be as set out in RSA _____.
The jurisdiction granted by this section shall be limited by the Uniform Child Custody Jurisdiction Act, if another state has jurisdiction as provided in that act. For the purposes of interpreting that act and any other provision of law which refers to a "custodial parent," including but not limited to RSA 458-A, any parent with 50 percent or more of the responsibility shall be considered a "custodial parent."
- RSA KIDS:3 - Parenting plans; contents.
- In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under RSA 173-B, the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to develop a parenting plan, the court may develop it. In developing a parenting plan under this subsection, the court may consider only the best interests of the child and the safety of the parties.
- A parenting plan may include, but need not be limited to, provisions relating to:
- Decision-making rights and responsibility;
- Information sharing and access, including telephone and electronic access;
- Residential schedule, including;
- Holiday, birthday and vacation planning;
- Weekends, including holidays, and school in-service days preceding or following weekends;
- Transportation and exchange of the child;
- Relocation of parents;
- Procedure for review and adjustment of the plan; and
- Methods for resolving disputes.
- RSA KIDS:4 Mediation of Cases Involving Children.
(This section is the current RSA 458:15-a with a change deleting the requirement that both parties agree to mediation.)
- The general purpose of this section is to:
- Manage conflict and decrease acrimony between parties in a dispute concerning parental rights and responsibilities for minor children.
- To promote the best interest of children.
- Improve the parties' satisfaction with the outcome of disputes concerning parental rights and responsibilities.
Increase the parties' participation in making decisions for themselves and their children.
Increase compliance with court orders.
Reduce the number and frequency of cases returning to court.
Improve court efficiency.
- The mediator has no authority to make a decision or impose a settlement upon the parties. The mediator attempts to focus the attention of the parties upon their needs and interests rather than upon their positions.
Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.
In all cases filed on or after July 1, 2003, involving disputed parental rights and responsibilities (formerly legal or physical custody of children or physical custodial rights), or grandparents' visitation rights, including requests for modification of prior orders, the court may order the parties to participate in mediation. If the parties are ordered to participate in mediation under this section, all issues relevant to their case, including but not limited to property settlement, alimony, and child support, shall also be mediated unless the court orders otherwise.
- The court may choose not to order mediation if there is:
- A showing of undue hardship to a party.
- An agreement between the parties for alternate dispute resolution procedures.
An allegation of abuse or neglect of the minor child.
A finding of alcoholism, drug abuse, or domestic abuse as defined in RSA 173-B:1, unless all parties agree to mediation.
An allegation of serious psychological or emotional abuse.
Lack of an available, suitable mediator within a reasonable time period.
- Either party may move to have the mediator replaced for good cause.
Mediation proceedings shall be held in private, and all communications, oral or written, made during the proceedings, which relate to the issues being mediated, whether made by the mediator, or a party, or any other person present, shall be privileged and confidential and shall not be disclosed and shall not be admissible in court, except as provided in RSA 328-C:9.
Any mediated agreement reached by the parties on all or some of the disputed issues shall be reduced to writing, signed by each party, and filed with the court as soon as practicable.
The parties shall participate at mediation in good faith. If the mediator determines that mediation is not helpful in resolving the dispute, the mediator shall report that fact to the court and return the matter to the court for adjudication of the underlying issues.
In the event both parties are indigent, the mediator shall be paid a set fee for his or her services. The amount of the fee shall be set annually by Supreme Court rule. The court may order each party to pay a proportional amount of said fee. The fee shall be paid from the special fund established pursuant to RSA 458:17-b and repaid by the parties in accordance with RSA 458:17-e.
The Supreme Court shall establish rules and take such action as necessary to effectuate the purpose of this section.