SB54 (2005) Detail

Clarifying the role of a guardian ad litem in guardianship proceedings.


CHAPTER 160

SB 54 – FINAL VERSION

02/03/05 0085s

2005 SESSION

05-0993

09/01

SENATE BILL 54

AN ACT clarifying the role of a guardian ad litem in guardianship proceedings.

SPONSORS: Sen. Foster, Dist 13

COMMITTEE: Judiciary

AMENDED ANALYSIS

This bill clarifies the role of a guardian ad litem in guardianship proceedings.

This bill was requested by the administrative judge of the probate courts.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

02/03/05 0085s

05-0993

09/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Five

AN ACT clarifying the role of a guardian ad litem in guardianship proceedings.

Be it Enacted by the Senate and House of Representatives in General Court convened:

160:1 Conduct of Hearing. Amend RSA 463:8 to read as follows:

463:8 Conduct of Hearing.

I. In any hearing under this chapter, the court shall not be bound by the technical rules of evidence and may admit evidence which it considers relevant and material.

II. A minor 14 years of age or older shall attend the hearing unless attendance is excused by the court. All other minors may attend the hearing if authorized or ordered by the court.

III.(a) Except as set forth in subparagraph (b), the burden of proof shall be on the petitioner to establish by a preponderance of the evidence that a guardianship of the person is in the best interests of the minor.

(b) If a parent objects to the establishment of the guardianship of the person requested by a non-parent, the court shall set a date for the hearing specified in this section. The burden of proof shall be on the petitioner to establish by clear and convincing evidence that the best interests of the minor require substitution or supplementation of parental care and supervision to provide for the essential physical and safety needs of the minor or to prevent specific, significant psychological harm to the minor.

(c) The burden of proof shall be on the petitioner for the guardianship of the estate of a minor to establish by a preponderance of the evidence that the guardianship is necessary to provide for the proper management of the property and financial affairs of the minor.

IV. The consent of the minor shall not be necessary for the appointment of a guardian, but the court shall in all cases ascertain the minor’s preference, and give to it such weight as under the circumstances may seem just.

V. When before or during the hearing on any proceeding in any court it appears to the court that the interest or rights of a minor are not fully represented or upon the request of any interested person, the court may appoint a competent and disinterested person to act as guardian ad litem for such minor to represent the minor’s interest in the case. The guardian ad litem shall have none of the rights of the general guardian. The person appointed guardian ad litem shall make an oath to perform such duty faithfully and impartially.

VI. A guardian ad litem appointed in a child custody proceeding in the probate court or family division shall be subject to the same standards, requirements, and rules as apply to guardians ad litem appointed in divorce, nullity, or legal separation proceedings under RSA 458:17-a.

[V.] VII. The court may appoint a guardian of the person or of the estate or of both as requested if, upon hearing, it finds based on the applicable burden of proof:

(a) In the case of guardianship of the person, guardianship is in the best interests of the minor as provided in paragraph III and the person nominated is appropriate.

(b) In the case of guardianship of the estate, that the guardianship is necessary to provide for the proper management of the property and financial affairs of the minor and the person nominated is appropriate.

[VI.] VIII. If a parent objects to the appointment or continuation of a guardianship, the court shall issue written findings concerning the petitioner’s compliance with the relevant burden of proof under paragraph V.

[VII.] IX. If a parent consents to the appointment of a guardianship, such consent shall be executed by an instrument in writing, signed by the parent, in the presence and with the approval of the court of the county in which the case is pending. The court may designate a person or another court to take the parent’s consent on the court’s behalf for good cause shown. The court, or its designee, shall also question the consenting parent regarding his or her understanding and knowledge of the nature and consequences if the petition is granted; and to insure that the parent understands he or she has the right to contest the petition. If the court, based on its own determination or its duly certified designee, finds:

(a) That consent is being given voluntarily and knowingly, the court may conduct a hearing pursuant to this section and thereon make all orders authorized by this chapter; or

(b) That consent is not being given voluntarily and knowingly for any reason such as because the parent lacked the mental capacity to give such consent. In this case, the court may:

(1) Hold a hearing pursuant to this section within 6 months, or earlier, if it is reasonably likely that the parent’s mental capacity will be restored within a shorter time period, and during the interim make or renew whatever temporary orders under RSA 463:7 the court deems necessary; or

(2) If it is unlikely that capacity will be restored within 6 months, schedule and conduct a hearing pursuant to this section as if the parent were objecting under paragraph III and make or renew whatever temporary orders under RSA 463:7 the court deems necessary until the hearing is conducted.

[VIII.] X. If the parent does not appear at the hearing and the court has not received a properly and duly executed consent form, the court may conduct such hearing as necessary to make the determinations required by this section and thereon make all orders authorized by this chapter.

[IX.] XI. When the court grants guardianship as part of the permanency plan for a child in the department’s custody pursuant to the Adoption and Safe Families Act of 1997, Public Law 105-89, the court shall so specify in its order.

160:2 Reference Change; Notice. Amend RSA 463:6, II(b) to read as follows:

(b) That either parent has a right to consent to the granting of the guardianship petition, and if such parent consents, he or she shall do so before the court or the court’s designee as specified in RSA 463:8, [VII] IX.

160:3 Appointment of Guardians Ad Litem. Amend RSA 464-A:41 to read as follows:

464-A:41 Appointment of Guardians Ad Litem.

[I.] When before or during the hearing on any proceeding in any court it appears to the court that the interest or rights of a [minor or a] legally incapacitated person by age or other cause or circumstance are not fully represented or upon the request of any interested person, the court may[, and upon the request of any interested person shall,] appoint a competent and disinterested person to act as guardian ad litem for such [minor or] legally incapacitated person and to represent such person’s interest in the case. The guardian ad litem shall have none of the rights of the general guardian. The person appointed guardian ad litem shall make oath to perform such duty faithfully and impartially. A bond may be required of the guardian ad litem at the discretion of the court.

[II. A guardian ad litem appointed in a child custody proceeding in the superior court shall be subject to the same standards, requirements, and rules as apply to guardians ad litem appointed in divorce, nullity, or legal separation proceedings under RSA 458:17-a. In a child custody proceeding in the superior court, the guardian ad litem for a child whose parents are indigent shall be compensated from the special guardian ad litem fund established under RSA 458:17-b.]

160:4 Effective Date. This act shall take 60 days after its passage.

(Approved: June 21, 2005)

(Effective Date: August 20, 2005)

Links

SB54 at GenCourtMobile

Action Dates

Date Body Type

Bill Text Revisions

SB54 Revision: 9308 Date: Jan. 21, 2010, midnight

Docket