By PAULA TRACY, InDepthNH.org
CONCORD – Officials from New Hampshire Legal Assistance and the New Hampshire Bar Association addressed a special legislative committee on the Circuit Court’s family division Tuesday about how to make the system work better.
This committee is not an appellate court to hear complaints about past cases, but about ways to make the family division system better, said chairman Rep. Stephen Pearson, R-Hampstead.
In addition to hearing from experts who work with the division, it also is hearing from individuals who have had experience in family court.
Catherine E. Shanelaris of Nashua testified as a family law practitioner and was asked by the New Hampshire Bar to address the committee Tuesday during its second hearing.
Also, the committee heard from Erin Jasina, the New Hampshire Legal Assistance Domestic Violence project director, who is a paralegal.
Several weeks ago, the committee heard from the perspective of child protection, including testimony from the state Division for Children, Youth, and Families and the Guardian ad Litem Board.
NH BAR MEMBER SUGGESTIONS
In 2022 there were over 15,600 new cases filed in the family division and of those cases, over 7,000 were divorce and custody and 3,800 domestic cases alone, not an extension of an existing case, Shanelaris said.
“In my experience, the lack of consistency relates to there is not enough judges, and equally important, there is not enough clerical staff,” she said.
She said she understood the committee is trying to look at irregularities within the system. One example was on judicial discretion on offers of proof.
The rules require individuals cited in texts or Facebook pictures to be seated in the courtroom for the testimony to be accepted but sometimes, depending on the type of record…like a hospital record or a fire call, a judge might say he or she does not need that individual there as it is part of the official record, she explained.
Rules of evidence do not have technically strict applications in family court cases, she said. Despite that, the court does follow relevance and hearsay closely in order to weigh all relevant information in deciding the case.
“It’s my experience, the court applies the rules to attorneys and non-attorneys,” alike, Shanelaris said.
She said she has seen the days grow longer for staff.
It is not unusual for the court to start at 8 a.m. with the doors open, rather than begin at 10 a.m. as was customary and she said she hears of judges working through lunch, at night and on weekends to get the orders done in a timely manner.
“I know it is an issue of money but it is important to keep the system going,” Shanelaris said.
She talked about some underutilized resources that could help. The court website is terrific, she said.
There, people can find a link to “self-help” where everyone can find videos about how to file cases, information for parents, checklists on what to bring and remember, and links to the state law library.
The New Hampshire Bar also has a great website to help answer legal questions. People can scan in documents and lawyers will answer questions for free.
The bar also has a law telephone line https://www.nhbar.org/legal-services-programs/lawline/ which is held on the second Wednesday of each month from 6 to 8 p.m. where lawyers answer questions for free.
Several of the committee members said her testimony was extremely helpful to their work which will continue through June before recessing for the summer.
Shanelaris was asked by the committee about domestic violence. She said the Bar’s DOVE project helps victims and people can also go to the YWCA or other places where help is given in the Nashua area.
Shanelaris said she has never seen a judge be disrespectful to a litigant and that was met with laughter from some of the roughly a dozen people attending the hearing.
Shanelaris said one thing the court has done a better job at is explaining their orders in detail instead of just writing “denied.”
“So those orders on motions are a lot more in detail,” she said, suggesting the committee look at some of those written orders.
Victims are limited to what they say in their petition so it is really important to include information that is pertinent.
State Rep. Marjorie Smith, D-Durham, a member of the committee, said it has no way of knowing what percentage of the individuals in the family court are having troubles, or a good perception of what is happening in family court.
“What we hear is all in one way,” Smith said, referring to complaints only.
Asked about inherent bias when parents come into the court, Shanelaris said she doesn’t see that.
Do you see where the court can be weaponized against a certain parent, Rep. Lorie Ball Salem, R-Salem asked.
“I think it works both ways,” Shanelaris said.
NH LEGAL ASSISTANCE WEIGHS IN
Jasina brought the 2004 statute that created the family division courts to her presentation and noted the first goal was to create respectful treatment of families.
She said she definitely hears from litigants who are not happy about their treatment but she did not offer a percentage to Smith’s question.
Remedies to those cases include Judicial Conduct Committee complaints and input in periodic evaluations of the judge, she said.
Goal number two in creating the division was to allow for a prompt and fair outcome of cases.
The pandemic added to the problems of the court in not meeting the deadlines, Jasina said.
Judges need training and updates on best policies and practices but that requires taking the judge off the bench adding to the problem, she said.
She said mediation is happening and it is “heavy-handed” in some cases because there is pressure to clear up the docket.
“Yes, there is, in my opinion, a real push to get cases through mediation,” Jasina said.
From a domestic violence perspective it is not always safe and there can be control issues among the parties in such mediation, she said, but it can add to conflict which is contrary to the first rule.
“Consistency is key across the state,” she said.
Barriers include a lack of understanding of the family court. It is not someone’s fault because most have never been through a divorce or domestic case, Jasina stressed and it is not TV court.
The disparity in income and resources between parties can be noticeable.
“We don’t have the resources to help everyone who comes through our door,” she said at NHLA.
One of the people who has been monitoring the committee’s work is Paula Werme, a retired attorney focused on domestic cases. She has been researching how judges handle such cases and provided written testimony to the committee.
She is urging more legislative oversight of separate judicial branches saying the overall problem is that individual judges are not protecting at-risk children in their courtrooms.
“They do it, first by an over-abundance (of) personal discretion to make rulings that are then non-appealable…They ignore the very wording of the statutes you wrote as legislators, especially in child-contested custody cases. Especially in cases involving domestic violence and abuse.
She said part of the fix is to prioritize child safety by changing the wording of RSA 461-A:6.
While the three branches of government are separate but equal, Article 73-A of the New Hampshire Constitution “flat out broke those checks and balances. The judicial branch constitutionally threw them out the window.”
“My theory is that the judge’s theory is ‘we’ll tell you what we want you to know, and no more. We certainly won’t tell you about systematic problems.’”
At a previous hearing, some suggestions were made on the need for increased staffing and training and discussed recent changes. The public focused on judicial bias issues.
The Family Division of the state court system operates in 28 locations across the state in all ten counties.
Cases include divorce and parenting action, child support, domestic violence petitions, guardianship of minors, termination of parental rights, abuse and or neglect cases, children in need of services, juvenile delinquency, and some adoptions.
The committee next meets on May 23 beginning at 9:30 a.m. in Rooms 206-208 of the legislative office building.
It also plans to visit family courts and hear from experts. A committee report is due in November.