Before your final trial, the court will conduct a pretrial hearing. Learn here what will happen at the hearing and what needs to be prepared and filed at the hearing.
The following are the new judge and marital master assignments for family cases in the Circuit and Superior Court for January 2013 through March 2013:
Hon. Paul D. Desjardins
(most of these hearings are held in Lancaster)
To Be Determined
Hon. J. Peter Cyr
Hon. Lawrence A. Macleod, Jr.
Hon. J. Peter Cyr
Hon. J. Peter Cyr
Hon. Thomas A. Rappa
Hon. Pamela D. Albee
Hon. James R. Patten
Michael H. Garner, Marital Master
Hon. John J. Yazinski
Hon. Bruce A. Cardello
Nancy J. Geiger, Marital Master
Henrietta W. Luneau, Marital Master
Michael H. Garner, Marital Master
Nancy J. Geiger, Marital Master
Hon. Edward M. Gordon
Hon. Edward B. Tenney
Hon. Paul S. Moore
Robert J. Foley, Marital Master
Hon. Susan W. Ashley
Robert J. Foley, Marital Master
Hon. John Kissinger
Hon. Susan B. Carbon
Thomas G. Cooper, Marital Master
Hon. Sharon DeVries
Bruce F. DalPra, Marital Master
Hon. Julie A. Introcaso
Hon. Michael J. Ryan
Bruce F. DalPra, Marital Master
Hon. Clifford R. Kinghorn, Jr.
Hon. Paul S. Moore
Henrietta W. Luneau, Marital Master
Hon. David G. LeFrancois
Thomas G. Cooper, Marital Master
Hon. Lucinda V. Sadler
Hon. Jennifer A. Lemire
Voters will be asked on Nov. 6 to approve an amendment to Part 2, Art. 73-a of the New Hampshire Constitution. If the amendment passes, the legislature would be given final say over how the New Hampshire Judicial Branch, an independent branch of government, operates. I oppose the amendment because it allows for a legislative takeover of the courts that violates separation of powers.
Allowing the legislature to dictate court procedures will politicize the courts. Court rules would be subject to change whenever the legislature meets and according to the influence of the political party in control, creating unpredictable and inconsistent procedures and outcomes.
The Nashua Telegraph opined on October 2, 2012 that “the proposed amendment makes a mockery of the system of checks and balances crucial to American government” Instead of an independent judiciary, “the Legislature would be the boss of the New Hampshire’s court system.”
I am voting no on question 2, and I hope that you will join me.
One of my favorite blogs is Law and the Multiverse. The blog’s premise is to take fictional situations from movies, comic books, and televisions shows and discuss the legal ramifications by applying relevant law. Have you ever wondered whether mutants are a protected class? They have the answer. Want to know whether superheroes have a duty to rescue? Check here. Ever thought they just got the law wrong in Snakes on a Plane? You were right.
I must have had this blog on the brain while watching Fox’s comedy Raising Hope. The show ended its second season with a courtroom custody drama titled “I want my baby back, baby back, baby back.” Jimmy Chance, two year old Hope’s father, is engaged in a custody battle with Hope’s mother Lucy Carlisle, a boyfriend-murdering serial killer who survived execution. The show is very funny, and clearly this episode was going for laughs and not realism. But that didn’t stop me from rolling my eyes or yelling “come on” at some of the absurdly unrealistic depictions of family law. So I thought that I would play Katniss and Peeta’s “real or not real” game Law and the Multiverse style.
First up, at the start of the trial, the mother’s attorney stands and makes an oral “Motion to Suppress Evidence of My Client as a Serial Killer.” She argues that the mother’s serial killer background should be suppressed because the charges were dismissed as part of a settlement deal from Lucy’s lawsuit against the prison, and therefore technically never happened. Assuming Lucy’s attorney is making the argument based on Rule of Evidence 403, which allows the exclusion of relevant evidence if the probative value is outweighed by the prejudicial nature of the evidence. Of course the fact that Lucy is a serial killer is prejudicial to Lucy, but it is not more prejudicial than probative, and would not be excluded on this basis.
Even if the judge found that it was more prejudicial than probative, in New Hampshire family cases, the judge has the flexibility to disregard the Rules of Evidence. Pursuant to Family Division Rule 2.2, the Rules of Evidence do not apply in divorce and parenting matters. The judge may, in her discretion, apply the New Hampshire Rules of Evidence “to enhance the predictable, orderly, fair, and reliable presentation of evidence.” The evidence of Lucy’s murder spree would absolutely come in as it is critical to the determination of the child’s best interests. The verdict: not real.
Next, in Raising Hope land, a jury will hear the custody trial and issue a verdict. When the evidence of Lucy’s violent past is suppressed, Jimmy and his parents are not too worried because only locals “who were living under a rock” would not recognize Lucy as the serial killer from her high-profile trial. And then they bring out a jury composed only of miners who were stuck underground during the murders and trial. The Chance’s lawyer quips that he thought it was the gentlemanly thing to do to let his opposing counsel pick the jury (The Chances should probably be looking into malpractice claims). Of course, in reality, juries do not hear family cases. In New Hampshire, a judge (RSA 490-F), marital master, or child support referee (RSA 490-F:15) preside in the family division and issue court orders. The verdict: not real.
Presence of Minors in Courtroom
The jury renders a verdict in favor of the mother, granting custody of Hope to Lucy. While the verdict is being read, Hope sits on her father’s lap. Pursuant to New Hampshire Family Division Rule 2.8 “a child shall not be brought to court as a witness, or to attend a hearing, or be involved in depositions without prior order of the Court allowing that child’s participation. To obtain permission of the Court for the presence of a child in such a proceeding, good cause must be shown.” There are some exceptions for domestic relations cases, such as adoptions (RSA 170-B:19), guardianships of children over the age of 14 (RSA 463:8 and Family Division Rule 5.4), and certain circumstances in abuse and neglect cases (Family Division Rule 4.5). However, these exceptions do not apply in parenting rights and responsibility cases like the Chance custody trial, and Hope would not be permitted in the courtroom. The verdict: not real.
Brawl in the Courtroom
Finally, after the verdict is read, Virginia and Burt, Jimmy’s parents, begin wrestling with the bailiffs and generally causing a ruckus in the courtroom. The Chances seem to remain incarceration-free despite the fracas. This kind of behavior would probably have landed Virginia and Burt in jail for direct criminal contempt. The judge must preserve and protect the dignity and authority of the court, and the Chances conduct violates such dignity and authority. The verdict: not real.
Raising Hope gets an A for laughs, but and F for realism. I’ll still tune in though.
Throughout my years practicing law and in my role as a guardian ad litem, I often hear misconceptions about contempt. Usually I hear statements along the lines of “I don’t want a criminal record” or “if I am found in contempt I will be arrested.” This post is intended to dispel some of these misunderstandings and to set the record straight.
Contempt can be civil or criminal, direct or indirect. The difference between civil or criminal lies in the purpose of the punishment. Direct or indirect contempt contrasts between acts committed either in the presence or outside of the presence of the court.
A finding of civil contempt results in an order that is remedial, coercive and for the benefit of the other party. The punishment is intended to force the contemnor’s compliance with court orders. Examples of the consequences of a contempt finding include money fines, orders directing compliance with the court orders, or even an indefinite jail sentence until the contempt is cured. It is often said that the contemnor “holds the key to the jail in his pocket” because curing the contempt will set him free. In family matters, motions for contempt are often brought for failure to pay child support, failure to abide by the parenting schedule, or selling or encumbering property in violation of a non-hypothecation order. Jail is a remedy of last resort, and one that usually only follows repeated, intentional refusals to abide by court orders or extreme behavior. The court will usually exhaust other remedies, such as payment of the other parties’ attorney’s fees, before sending a person to jail for civil contempt. A civil finding of contempt does not appear on a person’s criminal record.
In contrast, a person who has been found in criminal contempt does not hold the keys to the jailhouse, and remedying the contempt will not set him free. The punishment is punitive, and intended to protect and preserve the dignity and authority of the court. Indirect criminal contempt proceedings must generally follow to procedural formalities of criminal proceedings. The defendant is entitled to reasonable notice, providing a date and time for the proceeding and warning that the contempt is considered criminal. The prosecutor must prove the elements of contempt beyond a reasonable doubt, and the contemnor is entitled to counsel and holds the right against self-incrimination. If the court intends to impose a sentence of greater than six months, the defendant has the right to a jury trial.
An example of criminal contempt, and the confusion that can result between criminal and civil contempt, is the New Hampshire case of Mortgage Specialists v. Davey. Mortgage Specialists sued the defendants for violation of trade secrets. Following a preliminary injunction, the defendants destroyed documents in violation of the court order. The court found the defendants in contempt, believing that they had thumbed their noses at the trial court’s authority and thwarted the dignity of the process, and issued penalties including attorney’s fees, fines and a penalty of three times the amount of profits unjustly reaped from the violation of trade secrets. The Supreme Court vacated the finding because the defendants were not provided notice that the contempt proceedings would be criminal.
Indirect contempt is conduct that takes place outside of the presence of the court. The court does not have first-hand knowledge. Instead, the acts of contempt must be proved through evidence. An interesting case that distinguishes direct contempt versus indirect contempt is Kristen McGuire v. Suzanne Collins. In McGuire, a litigant in a custody matter arrived at the courthouse smelling of alcohol. The court security officer approached the litigant, and a state trooper performed a preliminary breath test. The results were not provided to the litigant, or her attorney. However, when she appeared before the court for the hearing, the judge informed her that she had blown a .20, well above the legal limit. However, the litigant displayed no disorderly behavior in the courtroom. The judge sentenced to litigant to 30 days in jail for direct, criminal contempt for appearing before the court in an inebriated state. However, the sentence was overturned by the Superior Court following a filing for a writ of habeus corpus because the family division judge had not personally observed the elements of contempt. Instead, the court had to rely on the observations of the court staff and the preliminary breath test conducted by the state trooper to prove the elements of contempt. Therefore, the court did not have direct knowledge and could not conduct summary proceedings resulting in the immediate incarceration.
Direct contempt takes place in the presence of the court where the judge personally observes all of the elements of contempt. The following is a perfect example of direct contempt from Maryland in the case of Patrick Smith v. State of Maryland:
THE DEFENDANT: What is the maximum on contempt, sir?
THE COURT: What is the maxim um on contempt? If I am going to give you in excess of six months, I believe I have to give you a jury trial, is that correct . . . ?
[STATE’S ATTORNEY]: Yes.
THE COURT: Mr. Smith, I am not going to give you in excess of six months.
THE DEFENDANT: Let me tell you something.
THE COURT: What?
THE DEFENDANT: You say you won’t give me in excess of six months.
THE COURT: Yes.
THE DEFENDANT: You know what? You have been sitting up there in the trial in every hearing I have had for this far, right? From day one, you have been very prejudiced to the defense. I asked you, right, a while ago, you tried to skip out on even bringing forth an allegation. You say it is only a bald allegation. I am not asking you to believe me. I am asking you to bring forth the witnesses in this case who could testify --
THE COURT: I asked you if you had anything you want to say as to what sentence the Court should impose --
THE DEFENDANT: Yeah. You know what? You can give me six more months, motherfucker, for sucking my dick, you punk ass b itch. You should have a white robe on, motherfucker, instead of a black. Fuck you.
THE COURT: I find you in contempt again.
THE DEFENDANT: Fuck you in contempt again.
THE COURT: I find you three times in contempt --
THE DEFENDANT: Fuck you. And fuck.
THE COURT: On each charge, the Court will impose a sentence of five months to run consecutive to each other and consecutive to any sentence you are now serving or obligated to serve.
THE DEFENDANT: Yeah. You better leave now, you, Ku Klux Klan.
Other examples of direct contempt include assaulting another person in the courtroom or refusing to testify when ordered to do so. When direct contempt occurs, the court may skirt procedural formalities required of indirect contempt in light of the court’s direct knowledge of the contempt. The word “summarily” does not refer to the swiftness of the punishment, but rather the dispensing with the formalities that accompany a conventional trial such as service of process, notice of hearing, and submission of evidence. Instead, the court must give the contemnor oral notice of the contempt observed, an opportunity to speak in his defense, where after the court may issue a finding of guilty and pronounce sentence.
The 9th Circuit Family Division at Nashua is now open. The Nashua Family Division will serve the Hudson, Hollis and Nashua communities.The family division has jurisdiction over divorce, parenting, child support, guardianship, termination of parental rights, abuse/neglect, CHINS, and some adoptions. The courthouse is located at 30 Springs Street, and the phone number is 603-882-1231. For other family division locations, check the court website.
Same-sex marriage and divorce needs a larger solution then the state’s rights approach. Texas Governor Rick Perry, a potential presidential candidate, recently discussed his views on New York’s legalization of same-sex marriage. Perry said: “You know what? That’s New York, and that’s their business, and that’s fine with me. Our federal government is engaged with far too many things they shouldn't be involved with at all." The problem with that view is that once it’s one state’s business, it’s every state’s business.
Historically, marriage has largely been left to the authority of the states. States issue marriage licenses, set the age of consent and prohibit certain family relations from entering into marriages. States also make laws regarding the dissolution of marriages, alimony, child support, property division and custody. But the federal government has its say as well. Congress enacted the Defense of Marriage Act, defining marriage for federal purposes as the union of one man and one woman. More importantly, DOMA specifically relieves states of the obligation to treat a same-sex marriage from another state as a marriage under its own laws. And that’s the trouble.
In today’s mobile society, where families easily move across state boundaries for jobs, family, retirement, and education, the failure of another state to recognize a same-sex marriage leaves families in legal limbo and without access to justice if divorce becomes necessary. A spouse, with no other means of support, may be prevented from seeking alimony. A child may be barred from seeing her non-biological parent, to her great detriment. A couple may be forced to remain legally bound to one another, long after they have separated, because their home state refuses to recognize the marriage and allow access to the family court system.
These situations and the devastating effects it can have on a family, demand remedy. I make the case for justice, setting aside the legal arguments of both sides of the same-sex marriage debate, from equal protection to the 10th amendment to the full faith and credit clause. The federal government must mandate that same-sex families may dissolve their relationships and settle custody disputes wherever they may move in the country. Until the federal government acts, New Hampshire, which requires the person seeking the divorce to have resided in the jurisdiction for one year, must allow same-sex families who have moved from New Hampshire to access the court system to dissolve marriages entered into in New Hampshire.
Republished here, my opinion from the recent Bar News regarding the appointment of counsel for parents in abuse and neglect proceedings:
Few rights can be argued to be more fundamental then the right to raise and care for one’s children. In recognition of that right, New Hampshire has long appointed counsel to represent indigent parents in abuse and neglect proceedings who face the removal of their children from their care by the State. The NH Supreme Court recognized in Shelby R. that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships."
Despite the constitutional protections afforded to parents, recent passage of HB2 [the budget "trailer bill"] and the issuance of Circuit Court Administrative Order 2011-01 deprives indigent parents accused of abuse and neglect of the statutory right to be represented by an attorney at all stages of the proceedings. The Administrative Order prohibits any new appointments of counsel after July 1, 2011, and orders the automatic withdrawal of counsel after the issuance of dispositional orders for attorneys appointed prior to July 1, 2011. However, legislative enactments cannot override a constitutional protection and the Courts have an affirmative duty to invalidate a statute that violates a person’s constitutional rights.
Fundamental fairness requires government conduct to conform to the community’s sense of justice, decency and fair play. Without the protections of counsel, a parent facing allegations under the Child Protection Act stands little chance of defending himself against the state. As the U.S. Supreme Court wrote in Gideon v. Wainwright, "even an intelligent and educated layman has small and sometimes no skill in the science of law." Oftentimes the parents involved in abuse and neglect cases are uneducated, unsophisticated, frightened and do not have the wherewithal to understand the process. They have no skills in asking questions, raising objections, or admitting evidence. They lack knowledge of the law and are at an extreme disadvantage when questions of law arise.
On the other hand, the State, in presenting its case, has the ability, funds and know-how to subpoena witnesses, hire expert witnesses, obtain medical or psychological evaluations of the children or the parents, and investigate the claims and allegations involved in a petition. The State employs attorneys to put on the State’s case and act on its behalf. The parent’s fundamental, natural and essential rights require that counsel be appointed to assist a parent in mounting their defense and protecting their rights.
Additionally, abuse and neglect proceedings can have the most serious of consequences to parental rights: the termination of parental rights. As the NH Supreme Court wrote in State v. Robert H., "the loss of one’s children can be viewed as a sanction more severe than imprisonment." The abuse and neglect proceedings become the grounds upon which the state relies on in a termination of parental rights proceeding. The finding of abuse or neglect, the parent’s progress throughout the case, the status of the parent’s compliance with the dispositional orders, and the alleged failure of a parent to correct the conditions that led to the finding of neglect are the framework of the state’s TPR case. Without counsel guiding and protecting the parent in the underlying abuse and neglect proceeding, appointing counsel in the TPR is too little too late to safeguard the parent’s constitutional rights.
In contrast to other state cuts that have drawn the attention of the media and the public, the prohibition on appointed abuse and neglect counsel for indigent parents has captured little notice. Few of us can imagine the state coming into our home and removing our children, and not having the financial ability to protect our rights and family and advocate for the return of our children. The elimination of parent attorneys is shameful act by a legislature willing to sacrifice justice for the bottom line. As this opinion goes to publication, abuse and neglect parent attorneys across the state are mounting a challenge, and the support of the Bar and the public is crucial to its success. In the meantime, parents will have to navigate the abuse and neglect system without advice of counsel and try their best to advocate for themselves and their children.
Blog posts have been sparse lately, and here's why: Administrative Order Number 2011-03. I've posted several times about the impending demise of the GAL fund, and it is finally coming to fruition. Judge Kelly's administrative order, issued on April 19, 2011, requires GALs in all GAL fund marital cases (this excludes abuse/neglect, TPR, guardianship and CHINs) to complete investigations, file final reports, final billing and withdrawals by June 1, 2011.
And let me tell you, that is a ridiculous amount of work to complete in just over a month. It feels like finals week in college or law school, only worse. Instead of finishing up five term papers, I have thirteen reports. It is extremely frustrating to be thrust involuntarily into such a situation because the court system cannot be properly funded by the legislature.
In the end though, it is the children of indigent New Hampshire Families who will suffer the consequences. They will no longer have a voice in the courtroom, and judges will have to sift through pro se he said she said in trying to determine a child's best interest. And that's a shame for New Hampshire.
The Guardian ad Litem fund took a step closer to extinction when the House Finance Committee voted last night to ok HB1 and HB2 and send it to the House for a full vote. The House budget cuts $742 million in spending from the current two-year budget. Among those cuts is the Guardian ad Litem fund, through which GALs are paid on family cases where parents cannot afford to pay upfront for GAL services and so they pay through the fund.
HB2 makes the following changes regarding the GAL Fund:
65. Guardian ad Litem Fees. Amend RSA 461-A:16, IV to read as follows:
IV. The fees for services for the guardian ad litem and others utilized by the guardian and approved by the court shall be a charge against the parties in a proportional amount as the court may determine. [
Where the parties are indigent, compensation for guardians ad litem and others utilized by the guardian and approved by the court shall be based upon the applicable fee schedule established by the supreme court for indigent defense counsel.]
66. Liability for Expenses. RSA 461-A:17 is repealed and reenacted to read as follows:
Amendment to HB 2-FN-A-LOCAL
461-A:17 Guardians ad Litem and Mediators; Liability for Expenses. The 1 judicial council shall have no responsibility for the payment of the costs of a mediator or guardian ad litem for any party under this chapter.
67. Reference Deleted. Amend RSA 21-I:7-b to read as follows:
21-I:7-b Unit of Cost Containment. There is established within the office of the commissioner of administrative services a unit of cost containment. The unit of cost containment shall be responsible for all functions and duties authorized under RSA 604-A, regarding payment, recoupment and monitoring of indigent defense funds. [
It shall also be responsible for all functions authorized under RSA 461-A:18 relative to recouping guardian ad litem funds.] The commissioner is authorized to employ personnel as necessary to accomplish the duties and functions of the unit of cost containment.
69. Repayment of Mediator and Guardian Ad Litem Fees. Amend RSA 461-A:18, I to read as follows:
I. In any case where a mediator has been appointed pursuant to RSA 461-A:7 or a guardian ad litem has been appointed pursuant to RSA 461-A:16 and the responsible party’s proportional share of the expense is ordered to be paid by the judicial council from the special fund established pursuant to RSA [
461-A:17] through the unit of cost containment, office of administrative services, the fees and expenses paid on the party’s behalf as the court may order consistent with the party’s ability to pay, such ability to be determined by the unit of cost containment.
73. Child Protection Act; Guardians ad Litem. Amend RSA 169-C:10, I to read as follows:
I. In cases brought pursuant to this chapter involving a neglected or abused child, the court shall appoint a [
guardian ad litem or] Court Appointed Special Advocate (CASA) or other approved program guardian ad litem for the child. If a CASA or other approved program guardian ad litem is unavailable for appointment, the court may then appoint an attorney or other guardian ad litem as the guardian ad litem for the child. The court shall not appoint an attorney for any guardian ad litem appointed for the child [, but may appoint an attorney or any other qualified individual as the guardian ad litem for the child]. The CASA or other approved program guardian ad litem shall have the same authority and access to information as any other guardian ad litem. For purposes of this paragraph, “unavailable for appointment” means that there is no CASA or other approved program guardian ad litem available for appointment by the court following a finding of reasonable cause at the preliminary hearing held under RSA 169-C:15 so that the child’s interests may effectively be represented in preparation for and at an adjudicatory hearing.
How will the elimination of the GAL fund affect the judicial branch and families?
• When the court has safety concerns about a child and cannot appoint a GAL using the fund, the court will turn to DCYF to investigate the concerns. This will increase the work required of DCYF and expend state resources.
• Trials and hearings will take longer and require more courts resources. Currently, GALs speak to witnesses, review records and report the information to the court in a clear, concise manner. Without a GAL, litigants will bring into court teachers, therapists, family and friends to give testimony. Litigants will submit volumes of emails, medical records, school transcripts and more for the court to sift through. This will increase the time required of the court to hear the case.
• Fewer cases will settle, necessitating more hearings and trials. Currently, once a GAL issues a report or recommendation, litigants are often able to enter into settlement discussions using the opinion of the GAL as a case evaluation. Without that process, litigants will settle less often and in turn take up court resources with more motions and hearings.
• Because trials will take longer and occur more often, the court system will suffer longer delays. Currently, the wait for a two day divorce trial in the Brentwood Family Division is over one year from the time that it is scheduled. Without the GAL fund, parties will have to wait even longer for a resolution to their case.
• Indigent litigants will be denied access to justice that litigants who can afford to pay up front for a GAL will have. The court system has never discriminated on the basis of income, and it should not start now.
There are alternatives to the elimination of the GAL fund. One alternative is the state doing a better job of collecting the funds that parents owe for GAL services. My understanding is that the fund requires about 1.8 million to run each year. The judicial branch collects $240,000 in filing fees for the GAL fund. In addition, the office of cost containment collects about $350,000 from parents who use services. This leaves a shortfall of roughly 1.2 million. This gap could be closed more effectively recouping the funds from litigants.
If the elimination of the GAL fund concerns you, contact your House representative and ask that the GAL fund be preserved or at the very least the effects of defunding it should be studied in committee before acting.
Tomorrow, March 16, 2011, the New Hampshire Supreme Court will issue its opinion in the New Hampshre homeschooling case. The case of Martin Kurowski and Brenda Voydatch has grabbed national headlines and sparked much debate about the right to home-school. In this matter, a divorced mother and father could not agree on whether their daughter should be home-schooled by the mother, and so a trial was held and a judge issued an order requiring the child to attend public school. The mother appealed, arguing, among other issues, that she has a consitutional right to home school her child.
The Supreme Court heard oral arguments in this matter on January 6, 2011. The justices asked some hard questions and made some interesting points, including:
- On the issue of a constitutional right to home-school, Justice Lynn asked the mother's attorney: The cases you cite were state v. parent, but in this case the state has been forced to settle a dispute between to parents, is there not a difference?
- Justice Dalianis questioned whether the Court needed to decide the constitutional issue of home schooling if the court decides that the trial court's order was a modification subject to the Muchmore standard.
- Justice Duggan asked the mother's attorney how schooling is a religious right. Further, "if there is no constitutional right to home-school, do you lose?"
- Justice Conboy distinguished residential and decision making responsibility, and questioned whether the modification standard applies when the court has to settle a decision making dispute. She asked, "if the parents have joint decision making and they do not agree, then what happens?"
On February 25, 2011, the New Hampshire Supreme Court issued an opinion in the matter of Leone v. Leone, which deals with a court’s discretion to hear telephonic testimony. In this case, the parties were a married couple with three children who resided together in Mississippi until the mother moved with the children to New Hampshire. About a month after the mother moved to New Hampshire, she filed a domestic violence petition requesting a restraining order against the father.
At a hearing on the restraining order, the mother appeared in person with an attorney and the father appeared telephonically with his attorney present in the courtroom. After the mother’s testimony, the father requested, through his attorney, that the Court allow him to testify telephonically. The court denied the request, and stated, on the record:
I’m having a problem with that. I do not usually allow people to testify telephonically. I have to judge their demeanor, their credibility. If they’re not in front of me, how can I do that?
I’m not going to allow it. I do not allow telephonic testimony. Never have, never will.
The father appealed, questioning whether the court erred in denying the father’s request to testify telephonically. The Supreme Court held that the court did err, concluding that a blanket exclusion of all telephonic testimony was an abuse of discretion. Instead, the court should have weighed and considered the specific circumstances of the case that would call for telephonic testimony, including:
- the ability of the witness to travel to New Hampshire, weighing feasibility and cost
- the nature of the proceedings
- the consequences facing the party/witness
- whether the court has the technical capability of accommodating such a request
- whether the other party objected to the telephonic testimony
- alternative methods of testimony, such as teleconferencing or an offer of proof through an attorney, would
In short, the Supreme Court determined that there had to be an objective basis for denying the telephonic testimony. An interesting caution in the case is the note that the Leone case does not hold whether the telephonic testimony would be admissible, and sites the Kansas case of In the Estate of Broderick. That argument is left for another day.
Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.
The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.
- HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.
- HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.
- HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.
Impeachment of Master Cross
For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."
Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration." The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.
Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.
The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.
Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.
Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.
In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.
The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.
I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.
Please write to Governor Lynch, and tell him how his proposed budget affects your family.
My blog posts are usually topical - focusing on one subject at a time such as relocation or guardian ad litems. Today I am going in a different direction though, as I have a couple of items to post about. My post is inspired by the wonderful blog at the Massachusetts Divorce Law Monitor by Attorney Nancy Van Tine, who always posts an interesting mix of food for thought. So here goes:
- Remember that the New Hampshire courts are closed on Thursday, December 23rd and Friday, December 24th for a furlough day and for the Christmas holiday.
- Holidays can be a stressful time when trying to coordinate who will be present during holiday celebrations. I love the post by Deeshaw Philyaw titled If You Invite His Ex-Wife to Thanksgiving Dinner. It is based on the children's book, If You Give a Pig a Party by Laura Numeroff.
- I have been reading the book Keeping Kids out of the Middle by Dr. Benjamin Garber. If you are looking for some good advice about co-parenting and the effect your divorce may have on your children, here is a good place to start.
Stay safe and warm and have a very, merry Christmas!
The Merrimack Family Division is almost here! The Judicial Branch posted the following announcements on its website:
The Hillsborough South marital department will be closed to the public except for emergency filings from Monday, December 6 through Thursday, December 9. The closing will allow staff uninterrupted time to process cases in preparation for the reopening of the department on Friday December 10th as part of the Merrimack Family Division.
The Merrimack Family Division will serve the towns of Merrimack, Bedford and Litchfield. In addition, the Hillsborough South Superior Court docket, one of the last courts to make the transition into the Family Division, will transfer over to the Merrimack Family Division. The courthouse is located on Baboosic Lake Road in Merrimack, New Hampshire.
As budget issues continue to plague the New Hampshire Judicial Branch, the courts have announced reduced hours in the clerk's offfice in several more locations to allow the staff uninterrupted time to process backlogged orders. Here is the announcement from the Judicial Branch:
The clerk's office in Nashua for Hillsborough County Superior Court North and Hillsborough County Superior Court South will close at 1 p.m. on Tuesday and Thursday beginning October 5 to allow uninterrupted time for processing cases and related materials.
Both clerk's offices, which had been closed from 8 a.m. to 9 a.m., will reopen at 8 a.m. daily, beginning Oct. 5 with implementation of the new Tuesday/Thursday afternoon closings.
After 1 p.m. on Tuesday and Thursday, no telephone or counter service will be available to lawyers, litigants or the public in the clerk's office during those hours; the automated telephone system will be monitored so that emergency requests are addressed promptly. A "drop box" will be set up inside the courthouse at 30 Spring Street in Nashua for filing documents during the hours when the clerk's office is closed.
As of today, the Merrimack County Superior Court, which had been closed down since last August on weekday afternoons to work on reducing the case backlog, will be open for a full day on Fridays. The clerk's office in Concord remains closed to lawyers, litigants and the public Monday through Thursday from 1 p.m. to 4 p.m. to allow for uninterrupted case processing.
Unprecedented times call for unprecedented measures. On days where the rest of the New Hampshire government remains open for business, the entire Judicial Branch will close and its employees will take unpaid furlough days in order to accomplish expenditure reduction. The Supreme Court explains these closures in Administrative Orders 2010-03 and 2010-05. The upcoming furlough days, in addition to the three days this spring, are:
- Friday, July 2, 2010
- Friday, August 6, 2010
- Friday, September 3, 2010
- Friday, October 8, 2010
- Friday, November 12, 2010
- Thursday, December 23, 2010
In addition to the furlough days, the courts have reduced their public office hours in order to reduce delays in processing orders and pleadings. In other words, so that it would not continue to take eight weeks or more for some courts to process and mail court orders, the clerk's office will close the front desk or window and turn off the telephone lines to concentrate on processing the orders. The public will not be able to reach the court during these times, though the court will remain open for scheduled hearing and mediations. The family division closures are as follows:
Note: All partial closure times are from 12 - 4 PM unless otherwise stated.
Furlough Weeks - Thursdays
Plus 6/10 and 7/8 (and not Fridays these weeks)
|Laconia District/Family:||Fridays (1 - 4 PM)|
|Nashua District||Fridays (1 - 4 PM)
Furlough Weeks - Thursdays (1 - 4 PM)
|Ossipee District/Family:||Alternating Fridays (beginning on 5/7/10)|
|Salem District/Family:||Thursdays (1 - 4 PM) except furlough weeks|
Tomorrow, the legislature will hold hearings about proposed state budget cuts, including cutting the judicial branch's budget by an additional 4 million dollars. The hearing begins at 11:00 am and the public testimony will begin at 1:00 pm in room 210 of the Legislative Office Building.
The legislature needs to hear from the families that this will effect, because this is not about the lawyers, judges and court staff but rather the victim of domestic violence who may not be able to get a restraining order because the court is closed, or the child who must wait for a year to be freed for adoption in a termination of parental rights case, or a single parent who must wait for months before obtaining a child support order. If your schedule allows, please attend the hearing tomorrow to voice to the legislature your opposition these detrimental cuts to the judicial branch budget. If you cannot attend, please call your representative.
More information about the proposed budget cuts to the judicial branch:
Broderick: Latest Cuts Are Too Deep, Concord Monitor, 4/9
Gov. Lynch Unveils $85 Million in Cuts Plus Layoffs, Union Leader, 4/8
CJ Broderick: April 8 Court budget letter to Gov. Lynch, 4/8
Senate Passes Bill to Spare Local Courts, Nashua Telegraph, 4/8
Fast facts about the judicial branch, 3/29
Rockingham Prosecutor Reams: 'A disaster for justice', Foster's, 3/20
Jim Tenn, the President of the New Hampshire Bar Association sent the following letter to New Hampshire bar members today urging them to take action to help prevent further budget cuts to the judicial branch that would cripple the system. As a family law attorney who assists mothers, fathers and children in court everyday with critical issues such as support, domestic violence, and parenting time, I see no more room for cuts. A parent struggling to make the rent who needs child support will wait months more for that crucial court order. A victim of domestic violence may not be able to obtain a restraining order because the court will be closed on furloughs. A child who is waiting to be freed for adoption will linger in the foster care system longer. I urge everyone, whether lawyer or layperson, to call your legislator and make your voice heard about these devastating budget cuts.
Attorney Tenn's letter:
In a real surprise move earlier this week, the House Finance Committee made a series of budget decisions that include a disproportionate cut of $4.7 million in Judicial Branch funding for the fiscal year starting this summer.
The NH House of Representatives is likely to vote on an ADDITIONAL $47 MILLION in cuts to the state budget, including these additional, disabling justice system cuts – probably next Wednesday, March 24, 2010.
Impact: Court officials roughly estimate that this budget impact in one fiscal year, combined with reductions already absorbed by the justice system would require:
- layoffs of 90 employees throughout the courts, or
- 30 furlough days when courts will be closed.
Combined with positions already left vacant, this would deplete the judicial branch workforce of 600 by 23 percent.
The NHBA Board of Governors urges Bar members to
CALL YOUR LEGISLATORS NOW and PROTEST THESE DAMAGING CUTS.
CRITICAL POINTS TO ADDRESS:
These cuts disproportionately impact the justice system.
The Judicial Branch is the smallest of the three branches; it accounts for 1.5 percent of the state budget, and yet is being targeted for 10 percent of these cuts.
The justice system is fundamental to the operation of our government.
Because it is VITAL to our society, the system is MANDATED in our state Constitution. The justice system, widely dispersed so as to be ACCESSIBLE to all citizens in their communities, is part of the day-to-day working of our government. These cuts may deny access to: families seeking protection from violence; law enforcement keeping citizens safe from wrongdoers; and businesses throughout our state depending on orderly dispute resolution.
Further cuts will be devastating.
The justice system will soon be feeling the effects of the $3.1 million in cost reductions mandated last fall, resulting in unpaid employee furloughs and the closing of courts for 19 days through this year and the next.
ADDED ON TOP OF THAT WOULD BE $4.7 million in cuts. Massive layoffs will be required in the smallest branch of government. The system will suffer permanent harm.
Further court closure days will cause insurmountable backlogs, further inefficiencies, and real damage to the lives of people who depend on the justice system for timely resolutions.
Chief Justice Broderick’s March 8 letter to the Governor, written before this latest legislative action, details the current state of the courts. It contains useful factual information. http://www.courts.state.nh.us/budget/fy-10-11-budget/letterfromcj-03-08-2010.pdf
WHAT YOU CAN DO
Attorneys must act now to contact members of the House; these citizen-legislators need to hear from you; they need to know that these cuts willbreak down the justice system.
And they need to hear from younow. The full House is expected to act on the Finance Committee report containing these cuts NEXT WEEK. Because time is of the essence we urge you to CALL your New Hampshire House Representatives before Wednesday the 24th.
A phone call is PERSONAL and will enable you to communicate your concerns.
While legislators are faced with tough decisions, we must act now to preserve New Hampshire’s justice system.
Visit the House of Representatives Web page at www.gencourt.state.nh.us, select your district, get your representative’s phone number, and make the call today: http://www.gencourt.state.nh.us/house/members/wml.aspx
Jim Tenn, NHBA President
I came across a must read post by Robert Mues of the Ohio Family Law Blog about how to dress for court. With all the preparation going into your case, planning your attire is probably not high on your priorities. However, it is an important part of your presentation and the impression that you make on the judge can have a lasting effect.
Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.
Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.
So, while you are going over your testimony, reviewing your proposed orders and preparing your exhibits, take a few moments to pick out and press your clothing for court. Making that good impression will kick start a good presentation to the judge.
Effective upon the opening of the new Manchester Family Division on November 12, 2009, the Administrative Office of the Courts has announced the following changes to the Family Division marital master assignments:
Marital Master Bruce Dalpra
Dover Family Division
Brentwood Family Division (2-3 days per month)
Marital Master Robert Foley
Rochester Family Division
Marital Master Nancy Geiger
Manchester Family Division
Marital Master Leonard Green
Franklin Family Division
Hooksett Family Division
New Marital Master
Manchester Family Division
The Family Division is finally scheduled to open its doors in Manchester on November 12, 2009. Currently, domestic cases are scattered throughout the courts, with divorce, parenting and child support cases in Superior Court, juvenile matters in District Court and guardianships and termination of parental rights cases in Probate Court. In contrast, the Family Division courts have subject matter jurisdiction over all of these range of cases as listed in RSA 490-D:2 in one court. The family division hears actions for divorce, legal separation, civil union dissolution, parenting, domestic violence protection, delinquency, CHINS, abuse/neglect, termination of parental rights, guardianship of minors, and adoption actions which relate to any of the following: abuse/neglect, guardianship, or termination of parental rights proceedings.
Late this fall, all of these family cases from Hillsborough North Superior Court, Hillsborough Probate Court and the Manchester District Court will be consolidated into one court that will be located in the Manchester District Court at 35 Amherst Street, Manchester, New Hampshire. All Manchester cases will transferred to the Manchester Family Division, as well as cases from Amherst, Bedford, Lyndeborough, and Mont Vernon which will be heard temporarily in the Manchester Family Division until they are relocated to Merrimack or Milford in the next phase of the family division.
If you have a hearing scheduled after November 12, 2009 in a domestic case in the Hillsborough Superior or Probate Court or the Manchester District Court, make sure you check in with your court to confirm where your hearing will be.
Governor Lynch has nominated four new superior court judges, including Hillsborough County Attorney Marguerite Wageling, Richard McNamara, a civil litigator from Wiggin & Nourie, PA, David Garfunkel of Gallagher, Callahan & Gartrell, PC, and Jacalyn Colburn of the New Hampshire Public Defender. Each nominee must be confirmed by the Judicial Counsel.
Source: Union Leader Hillsborough County Attorney prosecutor among four new judges.
On July 1, 2009, the New Hampshire Supreme Court issued an order increasing the filing fees in all cases. The filing fee for a divorce without children is now $205, and a divorce with children or a parenting petition is now $207.
According the the media advisory posted by the court, the fee increase was necessary to continue to fund the services provided by the judicial branch.
Chief Justice John T. Broderick Jr. said the court's decision to change the fees came after state lawmakers asked each branch of state government to find ways to increase state revenue during a severe economic downturn. The Judicial Branch had suggested generating more revenue through fee changes during recent budget negotiations with House and Senate members.
“We have agreed to keep almost 60 staff positions open during the next biennium and will manage with reductions in our operations to meet the new biennial budget,” Chief Justice Broderick said. “In order to keep the system functioning and avoid even further reductions, we felt we had to ask court users to shoulder some of the economic strain on our state during this very difficult time, " the Chief Justice said. "We view our decision as a necessary step we had to take to assist the state in meeting its budget.These are unprecedented economic times,” he added.
On April 1, 2009 the Laconia District Court and Laconia Family Division will open in new locations. Both courts will be located at:
The Laconia Courthouse
26 Academy Street
Laconia NH 03247
District Court: 524-4128
Family Division: 524-7755
The clerk's offices for both courts is in the process of moving from March 25th through March 31st , and therefore will be closed during that time. Hearings will proceed as scheduled at the current locations through March 31st, as well as requests for emergency relief.
Source: New Hampshire Law Library.
I previously posted about Governor Lynch's plan to close the budget shortfall by closing eight district courts, three of which house family divisions. One of those courts is the Colebrook District Court and Family Division, located in Northern New Hampshire's Coos County. The Union Leader published an article today by Lorna Colquhoun raising concerns about the closure of the Colebrook District Court in particular.
One issue is the greater distances small town police officers will have to travel to court, not only because of the additional cost, but also due to additional time that it will take them away from their duties in the town.
"It presents a big problem," said Pittsburg police Chief Richard Lapoint, who is his town's only full-time officer. "Time is a big factor. If I'm in Colebrook and something happens back here, I can respond just as quick as state police. From the police station to Lancaster is 55 miles and that can take an hour and 20 minutes to get back here."
Additionally, if the Colebrook court closes, parties will need to travel much farther to appear before the judge. Transfering operations from a court such as Hooksett District Court & Family Division to Concord District Court & Family Division where the locations are just thirteen miles apart with a large highway to travel up will not create such a hardship for the litigants. However, closing Colebrook and moving operations to Lancaster District Court creates a distance of at least thirty-seven miles, longer if the party is coming from the North side of Colebrook.
Colebrook police Chief Steve Cass and Lapoint cite
the example of a young mother in either community in need of a protective order. "Take a mother of two, who might be out of work," Cass said. "Dad has the only vehicle and now she has to try to get a ride to Lancaster to get before a judge."
If you have concerns about the court closures, make sure to contact your representative about the budget bills, which are due out of the finance committee on April 2nd and for a full house vote on April 8th.
The Union Leader's Kathryn Marchocki reports that included in Governor Lynch's budget are plans to close eight district courts across New Hampshire. Governor Lynch hopes to save 2 million dollars by closing the courthouses. However, the savings come at the cost of making access to the judicial system more difficult for families. As the Union Leader's article points out, families who would have gone to the Colebrook District Court for relief would have to drive 37 miles to the Lancaster District Court if the plan goes through.
The courts that could close are as follows:
- Colebrook to merge with Lancaster
- New London to merge with Newport
- Claremont transfer operations to the Sullivan County facility in Newport
- Plaistow to merge with Salem
- Milford to merge with Merrimack
- Hooksett to merge with Concord
- Keene to transfer operations to Cheshire County facility in Keene
- Hillsborough to merge with Henniker.
New Hampshire district courts have jurisdiction to hear domestic violence petitions, small claims, landlord tenant matters, minor crimes and violations and civil cases in which the disputed amount does not exceed $25,000. In counties that do not yet have family divisions, the district courts also hear juvenile matters. In addition, in the counties that have formed family divisions, many of the district courts house the family divisions that hear divorces, parenting petitions, child support, guardianships, termination of parental rights, abuse/neglect cases, juvenile matters, and some adoptions.
The family divisions that will be affected under Governor Lynch's plan are located in the Colebrook, Claremont and Hooksett District Courts, who will all transfer operations to other county courthouses. Additionally, families in need of a domestic violence protective order would have to travel to other courthouses to gain access to the judicial system.
The Goffstown Family Division has opened in the new courthouse located at 329 Mast Road, Goffstown, New Hampshire. The Goffstown Family Division is the first Hillsborough County location to open, with Jaffrey/Peterborough and Manchester to follow later this year. The court will serve the towns of Francetown, Goffstown, New Boston and Weare and Judge Paul Lawrence is the presiding justice.
The Family Division courts have subject matter jurisdiction over a range of cases in family matters listed in RSA 490-D:2. The family division hears actions for divorce, legal separation, civil union dissolution, parenting, domestic violence protection, delinquency, CHINS, abuse/neglect, termination of parental rights, guardianship of minors, and adoption actions which relate to any of the following: abuse/neglect, guardianship, or termination of parental rights proceedings.
Check the Family Division website to find out where your case will be filed.
For litigants and practitioners in the Hillsborough North Superior Court, the following notice has been posted by the court:
Due to a plumbing emergency, the clerk's office at Hillsborough County Superior Court North in Manchester today is accepting pleadings and addressing emergency matters only. Court proceedings and hearings are going forward as scheduled. The clerk's office expects to return to a normal schedule by Thursday January 15, 2009.
Address any questions to Superior Court clerk John Safford at 669-7410.