New Hampshire Bar Journal
2005 Winter, 20.
Report of the Task Force on Family Law
New Hampshire Bar Journal Winter 2005Volume 45, Number 4Report of the Task Force on Family LawBy Nina Gardner, ChairExecutive Summary
Editor's Note: This executive summary of the report of the Task Force on Family Law, and the condensed version of the report's recommendations which follows the introduction, were edited by Wendy Ducharme for this edition of the New Hampshire Bar Journal. This executive summary was not published with the initial report, issued Nov. 1, 2004, but it has been reviewed and approved by Task Force chair Nina Gardner. The complete report, with appendices, is available at www.nhbar.org.
The Task Force on Family Law was created by statute in 2002 to support the creation of a non-adversarial system for families undergoing divorce, separation, custody disputes and other emotionally charged matters. The Task Force's charge was to:
* Gather information on and study the current state of family law and its application in the court system, including current procedures and reporting requirements.
* Develop a comprehensive plan that includes recommendations for modifying New Hampshire's family laws; modifying court rules as they apply to family law; and increasing efficiencies in case processing, reporting and information exchanges.
* Consider how the proposals of the Task Force may be coordinated with family resource centers and family service centers to create an integrated, non-adversarial family law system that provides support to families prior to decisions about divorce, custody or other family law issues.
Twenty-one members - including lawyers, judges, state employees, social service professionals, and legislators - were appointed to the Task Force. Over a two-year period, task force members conducted a comprehensive review of the adversarial process as the only system of family dissolution in New Hampshire. Information was gathered from studies, presentations, public input, and the task force members' own expertise. This information was evaluated through the prism of a child-oriented model in which the needs of children are put first.
Finally, recommendations to reduce the impact of divorce and separation on families and children were formulated. These recommendations derived from debate, discussion and vote. The final report and recommendations reflected a consensus among the members about primary issues and steps toward improvement. On issues where there was no true consensus, no recommendations were made.
The 71-page final report, released on November 1, 2004, contained nearly 100 specific recommendations to shift from a trial-based divorce and child custody system to collaborative one in which mediators help parents resolve conflicts and develop parenting plans. Recommendations range from relatively simple efforts, such as changing "custody", "visitation" and other terminology to words reflecting the continuing role of both parents in each child's life, to far-reaching alterations to the way parents, lawyers and the court system handle divorce and custody cases.
Key recommendations include:
Make fundamental changes in how divorce cases are processed. Although less than 10% of cases ultimately require a trial, shortly after a case is filed, courts begin to schedule them as if a trial is inevitable. In the future, courts should provide "off ramps" that encourage counseling and dispute resolution alternatives. The courts should support a system in which appropriate referrals to mediation, child impact seminars, parenting classes, and support groups are made, to reinforce parental rights and responsibilities. Other forms of alternative dispute resolution should be made available as early in the process as possible, and explored on a case-by-case basis.
Help parents put the needs of their children first. Require parents to file a parenting plan with the court. This requirement will encourage parents to discuss the child's needs and how they, as parents, can best meet those needs. Establish a new Parenting Coordinator position in the court system to help parents manage disputes, adhere to court orders and develop parenting plans.
Empower parties to more actively settle matters relating to their families. Provide greater access to parenting programs, child impact seminars, counseling, community support groups and services, and other forms of dispute resolution alternatives. Undertake a public education campaign to bring attention to the various alternatives to a highly litigated divorce. Develop localized service resource guides and make them available at a wide variety of locations.
Incorporate a course on adult roles and responsibilities into public education. Young adults would be better equipped to handle many of the issues that come up in marriage if they have the tools they need to adapt to their roles and responsibilities as spouses and parents. The Task Force advocates that a course on adult roles and responsibilities be incorporated into the school curriculum and be adopted as a graduation requirement by the State Board of Education.
Conduct ongoing education among the legal community. Redefining and reshaping the relationships among family members is a complex issue - made even more difficult in a highly adversarial process. Lawyers need to serve as "counsel" not just as "advocates" for their clients, helping to identify other alternatives to highly contentious litigation whenever possible. Judicial and legal education about changes such as parenting plans and parenting coordinators is crucial to the success of these efforts. Equally important, ongoing education on topics such as child development, attachment, bonding and effects of divorce on children will help the judicial and legal communities effectively advise families.
The Task Force's recommendations come at a time in which attention is increasingly focused on helping families in New Hampshire's court system. The state's newly established separate Family Division is just one indication that the needs of children and families have become a priority. The report of the Family Law Task Force dovetails with recommendations made by a number of other entities including the legislative Commission to Study Child Support and Related Child Custody Issues, the New Hampshire Court Committee on Justice System Needs and Priorities, and the Supreme Court Task Force on Self-Representation. (See reports elsewhere in this issue.)
The Task Force on Family Law was charged with developing a proposal for integrating a non-adversarial system for families undergoing divorce, separation, custody disputes, and other family matters. (Chapter 250, Laws of 2003) In accomplishing its goal, the task force was ordered to:
I.Gather information on and study the current state of family law and its application in the court system, including current procedures and reporting requirements.
Develop a comprehensive plan, including but not limited to:
(a) Recommendations for modifying New Hampshire's family laws.
(b) Recommendations for modifying court rules as they apply to family law.
(c) Recommendations to increase efficiencies in case processing, reporting and information exchanges.
Consider how the proposals of the Task Force may be coordinated with family resource centers and family service centers in order to integrate a non-adversarial family law system that provides support to families prior to making decisions regarding divorce, custody or other family law issues.
Chapter 250:3 required the Task Force to provide an annual report describing its activities and findings to the House and Senate Judiciary Committees, the House Committee on Children and Family Law and any other relevant committees, and to submit a final report outlining the findings and recommendations of the Task Force to the Senate President, the Speaker of the House of Representatives, the Senate Clerk, the House Clerk, the Governor and the State Library on or before November 1, 2003.
The final reporting deadline was later extended to "on or before November 1, 2004." (Chapter 25, Laws of 2003) A preliminary report was submitted to the Senate President, the Speaker of the House of Representatives, the Senate Clerk, the House Clerk, the Governor and the State Library as required by the legislation creating the Task Force. This final report completes the reporting requirements of the Task Force.
For the Task Force, a group of 21 diverse, talented, informed, and committed members, this report has been a journey from which we have all gained great understanding and insight. We are wiser about the problems facing families for whom divorce or separation is contemplated and the needs of their children. We are aware of limitations on state and local resources, but made recommendations without regard to their actual implementation costs. For many of our recommendations there are few actual new dollars needed, requiring instead a commitment to do a better job of meeting the needs of the public by introducing and supporting a new approach to family law. The dedication and commitment of the Task Force members over the two-year period has been nothing short of incredible as these busy professionals committed to attending 30 meetings, as well as hours of work preparing sections of the report on their own time. The State of New Hampshire has benefited greatly from their efforts. Hopefully, this introduction will give...