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Bar News - June 21, 2013

New Lawyers Column: Different Country, Different Rules: The Role of the Court in Family Law


Miriama Sýkorová
After graduating from law school in Slovakia, where I focused my studies on international law and the law of the European Union, I moved to the United States and enrolled in Massachusetts School of Law, Andover in 2006. I had the opportunity to learn two different legal systems, civil and common law, and the opportunity to see the differences between them.

Some of the most interesting differences lie in the area of family law. I discussed them with my sister, JUDr. Renáta Deáková, a former family court judge and current appellate judge of Slovakia.

While the scope of jurisdiction of family courts in most western countries might be similar or even identical to those in the United States, this is not the case with respect to procedure, evidentiary rules, the nature of evidence, or the burden of proof. As incredible as it may seem to some American lawyers, there are situations in family law in which the entire evidentiary duty is on the court, and the court must obtain the evidence necessary to determine the objective issues of fact.

In New Hampshire, matters before the family court begin with the filing of a petition. During hearings or at trial, the petitioner presents witness testimony and other evidence necessary to support the petition. The opposing party presents evidence and witnesses on its own behalf, while each party cross-examines adverse witnesses.

The standard guiding these proceedings is that trial courts have broad discretion in the management of discovery and the admissibility of evidence. The Rules of Evidence do not apply to domestic matters, although the court has discretion to use them to enhance the presentation of reliable evidence. The court may admit evidence which it considers relevant and material. In doing so, the court looks to the state common law of evidence for guidance in analyzing materiality and relevancy.

In Slovakia, court proceedings, including in family law matters, are governed by the Civil Procedure Code. Generally, as in New Hampshire, proceedings begin with the filing of a petition. However, in family matters, proceedings may also be initiated without a petition, by court order.

In practice, this means that the court receives a notice, and if it finds from the notice that the relations, rights and obligations between parents, minor children, or other persons need to be addressed and adjudicated, it will, sua sponte, order a proceeding in the matter. The participants in these matters are not appearing as “petitioner” and “respondent.” Instead, the matter is titled as “In the Matter of XY, the minor, represented by a guardian ad litem, child of…”

Examples include a foster home making a request to the court to increase child support paid by the parents, a proceeding to grant custody of a minor to one parent and order the other parent to pay child support, an adjudication of the relationship between a minor and parent to whom custody was granted, or granting custody to a person other than a parent. In these examples, the principles of an adversarial system do not apply, and the court acts ex officio.

The court appoints a guardian ad litem and examines the minor, parents and other persons ex parte, and makes a variety of requests for information, including to the child’s school, the town office, the registry of deeds, the motor vehicle department, and the parents’ employers.

Unlike in America, the court examines the information it gathers regarding the parents’ property and income, their health, and any prior court-ordered child support obligations to determine the amount of child support, for which there is no maximum limit.

From this comparison, it is plain that while the legal systems of most western countries share many core principals with those in the United States, the particulars relating to procedure, evidence and the relative role and duties of judges are very different.

Miriama Sýkorová is an attorney at Kalled Law Offices, PLLC, in Ossipee, NH, and a member of the NH Bar Association New Lawyers Committee.

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