How to Try a Case Without a Gualrdiani Ad Litem - When You Re Ally Need One
| Citado como | Vol. 53 No. 2 Pg. 0018 |
| Páginas | 0018 |
| Año de Publicación | 2012 |
2012 Summer, Pg. 18. HOW TO TRY A CASE WITHOUT A GUAlRDIANI AD LITEM - When You Re ally Need One
Volume 53, No. 2
Summer 2012
INTRODUCTION
These are diffcult times to be a child in the middle of parenting dispute in the New Hampshire family division. It is also a challenging time to be a litigant or counsel for a party without the funds necessary to retain the services of a Guardian ad litem (hereafter GAL).
The main institutions of society that have historically protected children from mild to moderate neglect and abuse now look to the family division to decide these cases. School offcials and law enforcement personnel refer complaining parties to the family division as the institution best able to protect and to determine the best interests of children.
The state Division of Children, Youth, and Families (DCYF) is limited fnancially and by their rules to handle only the most signifcant cases of abuse and neglect. They usually do not intervene in most parenting cases unless ordered by the Court to do so.
DCYF is capable of doing an excellent job of investigating and determining family issues, but are limited in their ability and/or willingness to pay for help for distressed families, such as providing or paying for parenting classes, supervised visits, or counseling.
Over the past few years, the majority of the decisions made in the family division have been made by marital masters, who have had their power to decide cases weakened by a legislature that never showed full confdence in them.
Some of the signifcant impediments to the decisive determination of parenting cases by marital masters have included that the masters were never authorized to render fnal decisions. Each decision of a marital master must be counter-signed by a judge before it can be a judgment, and then released to the parties.
This has resulted in the parties not receiving immediate feedback from the master on the bench at the end of a trial about how the master viewed the case, the litigants' motives, their credibility, the strengths and weaknesses of the case, or what services would beneft the family going forward.
Rather, the master would write a decision, have the decision counter-signed by a judge, and then the decision would be mailed to the parties or counsel weeks or months after the hearing.
Further, the masters were not given the authority to decide contempt issues in order to enforce the prior orders. Contempt issues had to be rescheduled and heard by a judge. The perception that the masters were weak and lacked the authority to enforce their orders has resulted in some litigants filing serial pleadings on the same issues. Also, some unscrupulous litigants seek to intimidate masters and GALs by filing frivolous complaints with the Attorney Discipline Office and/or the Judicial Conduct Committee.
In 2012, the New Hampshire Legislature balanced amultimillion dollar state budget defcit by among other things phasing out all of the marital masters when his/her term expires. The family cases will eventually be heard only by judges of the circuit court.
One tool that the family court masters and judges have had available to investigate and help resolve parenting cases has been the ability to appoint a GAL to represent the interests of the children. The Court can make this appointment upon its own motion or the motion of any party. RSA 461-A:16 (I). The state provided the GAL fund for indigent parties to pay a GAL a reduced fee, and then the parties were ordered to repay the state in the percentages ordered by the Court.
The Court was never required to appoint a GAL in every contested custody matter See In the Matter of Fulton, 154 N.H. 264, 910 A.2d 1180 (NH 2006)(fnding no error for the failure to appoint a GAL where neither party requested a GAL prior to or during the hearing and counsel represented to the trial court during the hearing that a GAL was neither necessary nor desirable).
However, now that the legislature has also eliminated state funding for GALs for parents who could not afford one, the majority of New Hampshire family cases will be tried by pro se parties, or by counsel with a limited budget and without the beneft of a GAL's investigation or recommendations.
This is problematic since New Hampshire does not recognize the right of minor children to retain counsel or to intervene in their parent's divorce proceedings. See//? Re: Stapleford, 156 N.H. 260...
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