Bar News - February 18, 2015
Proposed 2015 Family Law Legislation Roundup
By: Honey Hastings
Participating in the Process
While the Bar Association takes a position on only a limited number of bills, individual lawyers can advocate or educate or both. The input of those who work in the family law area is important to the legislative process. You can attend a hearing and testify, or submit written testimony in person, by mail, or by email.
Written testimony should be directed to the appropriate committee chair:
Rep. Carolyn Gargasz
Chair of House Children and Family Law Committee
Rep. Robert Rowe
Chair of House Judiciary Committee
Sen. Sharon Carson
Chair of Senate Judiciary Committee
At least 20 bills related to family law have been introduced this legislative session, and each will be the subject of a hearing and vote in the originating chamber by March 5.
The majority of the bills originated in the House and have been sent to Children and Family Law Committee. This committee’s new chair is Rep. Carolyn Gargasz of Hollis, a 14-year veteran of the committee. She was a legislative member of the 2004 Task Force on Family Law, which developed the Parental Rights and Responsibilities Act. Rep. Gargasz has said, “Our committee is the voice for children in the Legislature. It must focus on what is in the best interest of New Hampshire’s children.”
Except as noted, the other House family law bills described below were referred to the House Children and Family Law Committee. The Senate bills have been referred to the Senate Judiciary Committee. To read the text of any bill, get hearing dates, and see the status of the bill, go to www.gencourt.state.nh.us and fill in HB or SB and bill number in the box that reads “Find a 2015 Bill.”
A perennial topic of legislation is to eliminate “no-fault” divorce for couples with minor children. HB 168 is this session’s version. It would restrict irreconcilable differences divorce (RSA 458:7-a) to couples without minor children. HB 516 would add to RSA 461-A a rebuttable presumption that an equal parenting schedule is in the child’s best interest, change the factors in determining the child’s best interest, and allow modification based on best interests.
Two bills would change the definition of martial property to be divided in a divorce: HB 106 (House Judiciary) would exclude property acquired by gift or inheritance, and SB 184 would adopt the Uniform Property Act. It would change New Hampshire’s property division method from “equitable division” to “community property,” the system used in nine states, primarily in the west. This Act was proposed in the 2014 session, but defeated.
Two bills would restrict alimony awards. HB 249 would limit the duration of contested alimony orders based on the duration of the marriage: to five years if less than 20 years, to seven years if 20-30 years, and to 10 years if 30 years or more. It would also restrict alimony renewal to one year after the alimony order had ended. The bill would codify factors for alimony termination: death of either party, remarriage of obligee, obligee cohabits with a dating or romantic partner on a continuing basis. The other alimony bill, HB 293, would require that a request for alimony be made prior to the divorce effective date and that a request for extension of an alimony order be filed prior to the termination date.
Child support is the topic of HB 378. It includes a formula for shared residential responsibility families, defined as those in which each parent has the child for at least 30 percent of the time:
“The total obligation shall be increased by 50 percent to reflect the additional costs of maintaining two households. Each parental support obligation shall be determined by dividing the total support obligation between the parties in proportion to their respective available incomes and in proportion to the amount of time each parent exercises parental responsibility.
After this calculation, the two numbers would be offset and the parent owing the larger amount would pay the difference to the other parent.”
HB 378 also includes a procedure for when one parent has between 25-30 percent of residential time: Each parent’s share of the total support obligation would be determined by a “shared-costs” table adopted in a human services department rule. This table would increase the total obligation by 50 percent, in cases in which each parent has at least 30 percent parenting time. When each parent has residential responsibility for at least one child, the amounts each would owe the other would be offset, and the parent owing the larger amount would pay the difference.
Additionally, HB 378 would establish a commission to study child support and related child “custody” issues. The commission’s charge would include review of RSA 461-A and 458-C, costs of medical insurance and dental care for the “non-custodial” parent, the amount of child support necessary to adequately support a child in New Hampshire, and child support for joint and shared residential arrangements.
HB 236 would factor in other children in the obligor’s household in calculating “allowable child care expenses” and “self-support reserve.” “Self-support reserve” would count only any minor, dependent children of the obligor, while “child care expenses” could include any children residing in either home.
Under HB 265, no fees, costs, or other deductions could be taken from child support payments. Instead, all court-ordered child support shall be paid directly to the obligee. A second study commission is proposed in HB 266; it would study removing child “custody” cases involving abuse and neglect from the family and probate divisions of the Circuit Court.
SB 11 would recodify the Uniform Interstate Family Support Act to comply with the United States obligations under the 2007 Hague Convention on Maintenance. Federal legislation requires all states to enact the 2008 UIFSA Amendments as a condition of continuing to receive federal funds for state child support programs. Failure to enact these amendments in 2015 session may result in the loss of important federal funding.
The circumstances ending children support would be clarified by HB 449. Specifically, pursuit of a GED or other equivalency certificate would not qualify as being in high school, and the child’s conviction and incarceration would end support. If support continues in high school beyond age 18, the student would be required to consent to both parents receiving his or her education records.
Under SB 102, determinations of “voluntary underemployment” would require consideration of the parent’s current and previous employment, the reason for the change in employment, and other relevant factors. Financial affidavits would be prima facie evidence of income under HB 441 (House Judiciary), unless challenged by the court. This bill would also make a judicial officer’s failure to require financial affidavits in hearings on child support, property division, or alimony “maladministration.”
Two bills concern the juvenile justice system: HB 305 about the assessment of and discharge planning in juvenile court; HB 307 about the membership and duties of the youth advisory council.
Child care facilities are the subject of two bills: HB 380 would restrict interviews of a child as part of the investigation of a child care agency; HB 405 would require supervised visitation centers to be licensed.
SB 12 would provide that the Probate Division have jurisdiction over surrogacy cases under RSA 166-B. The standard for restricting access to any report or recommendation made by the guardian ad litem would be changed by SB 103 from “applicable court rules” to the child’s “best interest.”
Three more bills were referred to House Judiciary, including HB 443 on equity jurisdiction of the family division. HB 247 states that only retired judges may be judicial referees. HB 540 would require the court to provide access to all records in parenting and child support cases, at a fee for copies of no more than 10 cents a page.
Honey Hastings practices family law and mediation in Wilton. She drafted the Parental Rights and Responsibilities Act and continues to draft and advocate for legislation. Hastings offers continuing education workshops for lawyers and mediators.