Bar News - November 18, 2011
Legislature Seeks Phase-out Of Marital Masters
By: Dan Wise
More than 150 years of combined judicial experience in family law matters could disappear from the state courts, if pending legislation backed by legislative leaders passes.
Marital Master Terms
|*Master Rein has announced her retirement, which takes effect Dec. 1, 2011. |
Leaders of the NH House of Representatives have sought the elimination of the limited-jurisdiction positions since last year, and it was included in the budget that created the Circuit Court. But differences over specific language left the issue unresolved at the end of the last session. A pending bill calls for the conversion of marital master positions to judgeships upon the retirement of a sitting master or the expiration of a five-year term. (See chart indicating when terms of current masters expire.) While the legislation uses the word "conversion," there is no guarantee that the individuals in those positions will be appointed judges.
The marital master phase-out has been passed by the House and is expected to be taken up by the Senate in January.
House Speaker William O’Brien, in an accompanying article written for Bar News, said the primary motivation for ridding the system of masters is that the court system will be more efficient with general-jurisdiction judges hearing marital matters. However, the ongoing effort by a small group of legislators to oust Master Philip Cross and to challenge certain judicial decisions has spurred speculation among some lawyers and judges that the positions are being eliminated because of perceptions of bias among the masters, as a group, toward custodial parents (usually, the mothers).
Early in last year’s budget process, legislators called for the elimination of the marital master category and the Judicial Branch did not resist the move. In budget discussions, budget-makers said marital masters positions would be replaced by judgeships in the Circuit Court where all family division cases are heard (except in Cheshire County, whose transition from superior court jurisdiction to family division has been delayed by lack of courthouse space.)
Replacing marital masters with judges will increase personnel costs by $60,000 per position as judges earn higher salaries and receive more generous judicial retirement benefits than masters, who qualify for the same retirement benefits as state employees. Circuit Court Administrative Judge Edwin Kelly said that the loss of the institutional wisdom of the current marital masters would be significant.
"All marital masters in our court system have been chosen because they demonstrated and continue to demonstrate the highest levels of professional experience and expertise in family law matters. The loss to the Circuit Court Family Division will be large not only to the system but also to the thousands of families who come to the courts each year asking to have their family problems resolved."
In response to questions from Bar News, Kelly added: "Without question, those cases raise the highest level of emotion and contention in any of our courts and our masters deal with them professionally, patiently and with great sensitivity to the many difficult personal matters which are the subject of divorce.
"We are fully confident that the governor will carefully consider all applicants for the full time Circuit Court judicial positions created by the conversion of these positions under existing law and sincerely hope our masters will seek nomination for these positions so that their work can continue."
Deborah Kane Rein, a marital master since 1988, earlier this fall announced she will be retiring December 1. She expressed concern about how effective the Family Division will be without any masters. She said it is ironic that the legislature decided 15 years ago to create a specialized Family Division to provide special attention to cases involving domestic relations and children, and now, before the conversion is even complete, the legislature is dictating a move in the other direction.
Family-related matters are different and deserve specialized attention, Rein said. The cases involve a high-degree of emotion and contention, and delve deeply into family dynamics, factors not present in most other cases. Rein is concerned that handling family cases as a part of a multi-faceted docket will mean that most Circuit Court judges will hear family cases less than regularly. These judges will have difficulty staying up to date on procedural approaches for specific circumstances and even the existence of resources – such as the existence of supervised visitation centers – that can aid in the resolution of cases.
In addition, she points out one of the original reasons for the Family Division was the belief that the existing court structure could not provide family cases with the attention they needed, because of the time-sensitive nature of the criminal docket and other civil cases with time limits. Without marital masters there is the risk that routine family matters will, once again, not get the attention they need. Since the majority of these cases affect children, whose sense of time is different than that of adults, closure is important to them. By having designated family law specialists, children in our court system have received the attention they deserve, Rein said.
Marital masters, as experts on family law, also play an important behind-the-scenes role in advising court staff on how to handle a variety of filing or notice issues, she said, since there are no law-trained personnel in most Circuit Court clerk’s offices. L. Jonathan Ross, a past NHBA president who concentrates on family law, expressed dismay about what the system will lose when difficult cases are turned over to judges with less familiarity with the issues and interactions involved in family law.
"The whole idea of the Family Division was to bring expertise and a single judicial officer to preside over and have an understanding of each family’s various interactions with the Courts on issues within the Family Division jurisdiction," Ross said.
"Marital masters have played a vital and important role implementing this public policy. They have brought compassion, knowledge, practical common sense, and a sincere effort to do justice to family members in one of the most challenging and difficult periods in each litigant’s life. Unfortunately, the emotions and problems in family law cases run so deep and have so few adequate resolutions for all involved that there is almost always the perception that there are winners and losers. Judges will face the same hurdles in this area as masters have."
"The loss of the years of expertise, understanding, and knowledge by elimination of Marital Masters will be a significant loss to New Hampshire, its citizens, and our courts’ ability to do justice," Ross said.
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