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Bar News - April 4, 2008


Family Division: Family Law Attorneys in Dialogue

By:

Hon. Edwin W. Kelly

More than a decade ago, the report of a legislatively authorized committee studying the resolution of family issues in the courts of New Hampshire was accepted by the legislature, and the Judicial Branch Family Division opened its doors in Rockingham and Grafton Counties. Ten years later the legislature was convinced that it was time to institutionalize the family division in the remaining eight counties of the state and passed legislation authorizing the expansion. Today, the family division is operating in all but Hillsborough and Cheshire counties.

From the earliest days of the meetings and public hearings of the study committee to this day, the changes brought about by the legislature have been the subject of equally passionate and thoughtful comments advocating both for and against those changes. With very few exceptions, those comments have been made with the civility, professionalism and respect that is the hallmark of the New Hampshire Bar Association and our legal profession.

This past December, I accepted the invitation of Eleanor Dahar, as president of the Bar, to attend a meeting of the Bar officers to speak with them and answer questions about the two trial courts on which I serve as administrative judge, the district courts and the family division. That meeting, which also included Graham Chynoweth, current Chair of the Family Law Section of the Bar, was an occasion for frank discussion between us. There were areas of both agreement and disagreement raised during that meeting but, again, in the best tradition of the Bar, the conversation was cordial and professional and ended with a commitment to continue our dialogue on a broader basis.

As an outgrowth of that meeting, I have assembled a group of family division judges, masters and administrators and the Bar has invited a group of experienced family law practitioners to meet on a regular basis to establish an open line of effective and constructive communication. Our first meeting was held on March 21 at the Bar Center to outline broad topics for future exploration and to suggest areas within the new family division rules where improvements could be made to enhance family practice. Even at this early date, productive suggestions have been made and the problem solving has begun.

There is no question that over the past 25 years the face of New Hampshire has changed, as has the practice of law. Whether that change has been for the better or worse can be the subject of endless debate. In the family law arena, while the divorce rate has, sadly, remained relatively constant, the number of cases has risen due to the population increase. At the same time, the complexity of the issues presented has increased and the practice of family law has become a far different practice than it was in the late 1970ís and early 1980ís.

The report issued by the Supreme Courtís Task Force on Self Representation in 2004 noted that fully 70% of all marital cases involve at least one self-represented party. Even higher numbers of self-represented individuals appear in domestic violence cases and juvenile matters, all of which are now within the jurisdiction of the Judicial Branch Family Division. The various study committees and the legislature itself have been clear about their direction to the courts to move away from the adversarial system as the primary model used in the resolution of family matters and to move toward the utilization of alternative dispute resolution wherever possible (see RSA 490-D:1). The legislature was equally clear in its requirement that all divorcing parents attend sessions to learn about the impact of their divorce on their children (RSA 458-D) and that parents join together to mediate their differences and arrive at a parenting plan for their continued parental relationship (RSA 461-A).

It has been the goal of the Supreme Court to implement the will of the legislature and it has been my personal commitment, as well as the commitment of our family division judges, masters and administrators, to carry out this legislation as completely as possible.

Our joint effort with the Bar to continue to discuss these changes to practice and court administration is, in part, a recognition that it is the duty of all of us to perfect our justice system within the bounds of the law. I donít expect that everyone around the table will always see eye to eye or agree with the ultimate outcome on every issue, but I have confidence that the level of discourse that will occur will be at the same professional and respectful level we have all come to expect. Based on our first meeting alone, I have every reason to believe that the coming months of discussion among us will be extremely productive and help us to further the goals that have been set for us by the legislature and to improve the work all of us do for the children and families who come to the courts for assistance in times of great stress.

Honorable Edwin Kelly is Administrative Judge of the Family Division.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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