Revision: Jan. 15, 2019, 2:42 p.m.
HB 583 - AS INTRODUCED
HOUSE BILL 583
SPONSORS: Rep. Plumer, Belk. 6; Rep. Viens, Belk. 1
COMMITTEE: Children and Family Law
This bill makes various changes to RSA 461-A, relative to parental rights and responsibilities and the role of a guardian ad litem, including changing the legal standard from the best interest of the child to a consideration of the child's safety and legal rights; permitting either party to request an evaluation of the child to assess the child's maturity; making mediation voluntary; and more narrowly defining the role of guardians ad litem.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
461-A:2 Statement of Purpose.
I. [Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child,] It is the policy of this state to:
(a) Support frequent and continuing contact between each child and both parents when appropriate.
(b) Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced.
(c) Encourage parents to develop their own parenting plan [with the assistance of legal and mediation professionals], unless there is evidence of domestic violence, child abuse, or neglect. If there is evidence of domestic violence, child abuse, or neglect the child's wishes shall be considered pursuant to RSA 461-A:6 and the child's safety and rights shall be the first priority in the determination of parenting time.
[(d) Grant parents and courts the widest discretion in developing a parenting plan.
(e) Consider both the best interests of the child in light of the factors listed in RSA 461-A:6 and the safety of the parties in developing a parenting plan.]
(d) The policy of this state is to preclude any assumption of coercion of coparenting or equal parenting rights in cases involving child abuse.
(e) Uphold the child's legal and constitutional rights in light of the factors listed in RSA 461-A:4, RSA 461-A:5, RSA 461-A:6, and RSA 170-C:5 and the safety of the parties in developing a parenting plan.
(f) Adopt as part of this policy H.Con.Res.72, passed by Congress September 25, 2018, "Which expressed the sense of Congress that child safety is the first priority of custody and visitation adjudications, and that state courts should improve adjudications of custody where family violence is alleged."
II. This chapter shall be construed so as to promote the policy stated in this section.
461-A:4 Parenting Plans; Contents.
I. In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under RSA 173-B, the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to develop a parenting plan, the court may develop it. In developing a parenting plan under this section, the court shall consider only the [best interests] safety and legal and constitutional rights of the child as provided under RSA 461-A:6 and the safety of [the] all parties.
II. A parenting plan may include provisions relative to:
(a) Decision-making responsibility and residential responsibility.
(b) Information sharing and access, including telephone and electronic access.
(c) Legal residence of a child for school attendance.
(d) Parenting schedule, including:
(1) Holiday, birthday, and vacation planning.
(2) Weekends, including holidays, and school in-service days preceding or following weekends.
(e) Transportation and exchange of the child.
(f) Relocation of parents.
(g) Procedure for review and adjustment of the plan, including the grounds for modification in RSA 461-A:11.
[(h) Methods for resolving disputes.]
III. If the parties are insured and the parenting plan [directs the parties to participate in counseling, the court shall give due consideration to selecting] includes an agreement to participate in counseling, the parties may select a counselor who accepts direct payment from the parties' health insurance carrier.
IV. If the parents have joint decision-making responsibility under RSA 461-A:5, the parenting plan shall include the legal residence of each parent unless the court finds that there is a history of domestic abuse or stalking or that including such information would not [be in the best interest] safeguard the safety and constitutional and legal rights of the child. If the parenting plan includes a parent's residence, the parent shall be responsible for promptly notifying the court and the other parent of any change in residence. The failure to provide such information may result in a finding of contempt of court.
V. If the court orders supervised visitation, [it may order] either party may request that such visitation shall take place only at a visitation center that uses a metal detection device and has trained security personnel on-site and complies with all mandates in the state protocol for supervised visitation centers established by the governor's commission on domestic violence.
VI. Each parenting plan shall include a detailed parenting schedule for the child, specifying the periods when each parent has residential responsibility or non-residential parenting time. [Neither parent shall be described as having the child "reside primarily" with him or her or as having "primary residential responsibility" or "custody" or be designated as the "primary residential parent."]
461-A:5 Decision-making Responsibility.
[Except as provided in paragraph III, in the making of any order relative to decision-making responsibility, there shall be a presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interest of minor children:] The court may order joint-decision making:
I. Where the parents have agreed to an award of joint decision-making responsibility or so agree in open court at a hearing for the purpose of determining parental rights and responsibilities for the minor children of the marriage. If the court declines to enter an order awarding joint decision-making responsibility, the court shall state in its decision the reasons for the denial.
II. Upon the application of either parent for joint decision-making responsibility, in which case it may be awarded at the discretion of the court. For the purpose of assisting the court in making a determination whether an award of joint decision-making responsibility is appropriate under this section, the court may appoint a guardian ad litem [to represent the interests of the children according to the provisions of] pursuant to RSA 461-A:16. If the court declines to enter an order awarding joint decision-making responsibility, the court shall state in its decision the reasons for the denial.
III. [Where the court finds that abuse as defined in RSA 173-B:1, I has occurred, the court shall consider such abuse as harmful to children and as evidence in determining whether joint decision-making responsibility is appropriate. In such cases, the court shall make orders for the allocation of parental rights and responsibilities that best protect the children or the abused spouse or both. If joint decision-making responsibility is granted despite evidence of abuse, the court shall provide written findings to support the order.] In determining parental rights and responsibilities, the court shall first consider any safety risks and claims of family violence as a fundamental consideration and shall uphold the child's relevant legal and constitutional rights, including the right to an evidentiary hearing, and shall consider any evidence of abuse pursuant to court rules before making any determination on parental rights and responsibilities. In making its determination, the court shall consider the impact of the abuse on the child and the relationship between the child and the abusing parent. The court shall not order or force any kind of therapy, especially so-called reunification therapy, or any kind of counseling if it has been determined that the child is a victim of abuse or domestic violence.
461-A:6 Determination of Parental Rights and Responsibilities[; Best Interest].
I. In determining parental rights and responsibilities[, the court shall be guided by the best interests of the child, and shall consider the following factors] under RSA 461-A:5, III, the court shall require any parent who seeks unsupervised contact with a child to have a legal, physical, verifiable address. In addition, the court shall consider:
(a) The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
(b) The wishes of the child, pursuant to paragraph II.
(c) If either parent raises relevant concerns, the court shall also consider:
[(b)] (1) The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
[(c)] (2) The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.
[(d)] (3) The quality of the child's adjustment to the child's school and community and the potential effect of any change.
[(e)] (4) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.
[(f)] (5) The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent.
[(g)] (6) The support of each parent for the child's relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent.
[(h)] (7) The relationship of the child with any other person who may significantly affect the child.
[(i)] (8) The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent.
[(j)] (9) Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
[(k)] (10) If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.
[(l)] (11) The policy of the state regarding the determination of parental rights and responsibilities described in RSA 461-A:2.
[(m]) (12) Any other additional factors the court deems relevant.
I-a. If the court concludes after the examination of evidence that frequent and continuing contact between each child and both parents [is not in the best interest] does not protect the legal and constitutional rights of the child, the court shall make findings supporting its order.
II. Upon the request of either party, the court shall allow the child to be evaluated by a licensed child psychologist to determine whether the child is of sufficient maturity to make a sound judgment regarding the determination of parental rights and responsibilities. If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the determination of parental rights and responsibilities. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including whether the minor child's preference was based on undesirable or improper influences.
III. In determining parental rights and responsibilities under this section, including residential responsibility, the court shall not apply a preference for one parent over the other because of the sex of the child, the sex of a parent, or the financial resources of a parent.
IV. If the court finds that a parent has been convicted of sexual assault or child abuse or there has been a finding by a court of competent jurisdiction of sexual abuse or child abuse against such parent's minor child or minor stepchild, the court may prohibit contact between such parent and the victim of the abuse and any sibling or step-sibling of the victim. The court shall make orders that best protect the victim of the abuse and the siblings and step-siblings of such victim.
(a) If a parent makes a good faith allegation based on a reasonable belief supported by facts that the parent's child is a victim of physical abuse or neglect or sexual abuse perpetrated by the other parent and if the parent making the allegation acts lawfully and in good faith in accordance with such belief to protect the child or seek treatment for the child, the parent making the allegation shall not be deprived of parenting time, or contact with the child based on reasonable actions taken in accordance with that belief.
(b) In this paragraph, "sexual abuse" shall mean sexual abuse as defined in RSA 169-C:3, XXVII-b, and "sexual assault" shall mean sexual assault as provided in RSA 632-A:2, RSA 632-A:3, and RSA 632-A:4.
V. [If the court determines that it is in the best interest of the children, it shall in its decree] The court may grant reasonable visitation privileges to a party who is a stepparent of the children or to the grandparents of the children pursuant to RSA 461-A:13. Nothing in this paragraph shall be construed to prohibit or require an award of parental rights and responsibilities to a stepparent or grandparent if the court determines that such an award is in the best interest of the child.
VI. The court may appoint a guardian ad litem [to represent the interests of the child according to] pursuant to RSA 461-A:16.
VII. At the request of an aggrieved party, the court shall set forth the reasons for its decision in a written order.
461-A:7 Mediation of Cases Involving Children.
I. The general purpose of this section is to:
(a) Manage conflict and decrease acrimony between parties in a dispute concerning parental rights and responsibilities for minor children.
(b) [Promote the best interest of children] Protect the child from harm and uphold the child's legal and constitutional rights.
(c) Improve the parties' satisfaction with the outcome of disputes concerning parental rights and responsibilities.
(d) Increase the parties' participation in making decisions for themselves and their children.
(e) Increase compliance with court orders.
(f) Reduce the number and frequency of cases returning to court.
(g) Improve court efficiency.
II. [The mediator has no authority to make a decision or impose a settlement upon the parties. The mediator shall attempt to focus the attention of the parties upon their needs and interests rather than upon their positions. Any settlement is entirely voluntary. In the absence of settlement, the parties lose none of their rights to a resolution of their dispute through litigation.
III. In all cases involving disputed parental rights and responsibilities or grandparents' visitation rights, including requests for modification of prior orders, the court may order the parties to participate in mediation. If the parties are ordered to participate in mediation under this section, all issues relevant to their case, including but not limited to child support and issues relative to property settlement and alimony under RSA 458, shall also be mediated unless the court orders otherwise.
IV. Reasons the court may choose not to order mediation include, but are not limited to, the following:
(a) A showing of undue hardship to a party.
(b) An agreement between the parties for alternate dispute resolution procedures.
(c) An allegation of abuse or neglect of the minor child.
(d) A finding of alcoholism or drug abuse, unless all parties agree to mediation.
(e) An allegation of serious psychological or emotional abuse.
(f) Lack of an available, suitable mediator within a reasonable time period.
V. The court shall not order mediation if there is a finding of domestic violence as defined in RSA 173-B:1, unless all parties agree to mediation.
VI. Either party may move to have the mediator replaced for good cause.
VII. Mediation proceedings shall be held in private, and all communications, oral or written, made during the proceedings, which relate to the issues being mediated, whether made by the mediator, or a party, or any other person present, shall be privileged and confidential and shall not be disclosed and shall not be admissible in court, except as provided in RSA 328-C:9.
VIII.] The parties may elect to participate in mediation. Any participation shall be voluntary. Any mediated agreement reached by the parties on all or some of the disputed issues shall be reduced to writing, signed by each party, and filed with the court as soon as practicable.
[IX. The parties shall participate at mediation in good faith. If the mediator determines that mediation is not helpful in resolving the dispute, the mediator shall report that fact to the court and return the matter to the court for adjudication of the underlying issues.
X.] III. In the event both parties are indigent, the mediator shall be paid a set fee for his or her services. The amount of the fee shall be set annually by supreme court rule. The court may order each party to pay a proportional amount of said fee. The fee shall be paid from the mediation and arbitration fund established in RSA 490-E:4 and repaid by the parties in accordance with RSA 461-A:18, including fees for pre-suit marital mediation authorized pursuant to RSA 490-E:2, V. The supreme court shall determine by rule a percentage amount of the entry fee paid to each clerk of court for each petition in domestic relations cases to be deposited into the mediation and arbitration fund to be used to pay for mediation where both parties are indigent. At no time shall the percentage amount exceed 25 percent of the entry fee for each petition.
[XI.] IV. The supreme court shall establish rules and take such action as necessary to effectuate the purpose of this section.
461-A:16 Guardian ad Litem.
I. In contested proceedings under RSA 461-A, the court may appoint a guardian ad litem for a minor child when the court has reason for special concern regarding the welfare of the child. The role of the guardian ad litem shall be only to gather information to assist the court [in determining the best interests of the child] in protecting the child's safety and legal and constitutional rights. In determining whether to appoint a guardian ad litem, the court shall consider:
(a) The wishes of the parties;
(b) The age of the child and, pursuant to RSA 461-A:6, II, the maturity of the child;
(c) [The nature of the proceeding, including the contentiousness of the hearing] The child's safety and legal and constitutional rights;
(d) The financial resources of the parties;
(e) The extent to which a guardian ad litem may assist in providing information concerning the [best interest of the child] safety of the child and the child's legal and constitutional rights;
(f) Whether the family has experienced a history of domestic abuse;
(g) Abuse of the child by one of the parties; and
(h) The educational needs of the child[; and
(i) Any other factors the court deems relevant].
I-a. The court shall specify the issues to be addressed by the guardian ad litem in his or her report [and may otherwise limit the role of the guardian ad litem]. The court shall not consider any recommendation by the guardian ad litem or appoint the guardian ad litem in any capacity other than to gather evidence and information as provided in this section. Any guardian ad litem who acts outside the role provided in this section shall not be recognized as acting within the scope of his or her duties as a guardian ad litem and thus shall not be immune from civil or criminal liability as an officer of the court.
I-b. [The guardian ad litem may participate in hearings and conferences by telephone, except for evidentiary hearings on parenting.
I-c.] The guardian ad litem shall file a report of his or her investigation [no later than the date of the final pretrial hearing] within 90 days of his or her appointment and at least 30 days before any evidentiary hearing in the matter. The report shall not propose any of the following [unless specifically requested by the court]:
(a) An allocation of decision-making responsibility;
(b) A parenting plan; or
(c) A specific parenting schedule.
I-d. At the court's request or with the court's approval, the guardian ad litem may file a supplemental report on specific issues. A preliminary or temporary report shall not be required unless one is ordered by the court due to the extraordinary or special circumstances of the case.
II. Persons accepting appointment as guardians ad litem [agree to] serve as officers of the court and only have [such standing in the proceedings as the court deems appropriate and may, upon approval of the court, utilize the service of others found necessary by the court to represent the child's best interest] such standing when acting within the guardian ad litem's scope of authority as defined in this section. Any guardian ad litem who acts outside of such role shall not be recognized as an officer of the court.
III. Guardians ad litem shall respect communications between themselves and the child and shall disclose such information only as required by the court in rendering a report. All parties to the case shall have access to, and receive a copy of, any report made by the guardian ad litem [unless the court explicitly finds that such disclosure is not in the child's best interest. When the child's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or some other reason, the guardian ad litem shall be the holder of the privilege and shall have the authority to waive the privilege, but only if the guardian ad litem reasonably believes that the child cannot adequately act in the child's own interest]. The guardian ad litem shall comply with RSA 461-A:6, II when filing his or her report.
IV. When a guardian ad litem is appointed pursuant to this section, the court shall establish a maximum fee for the appointment in accordance with this section.
(a) When appointing a guardian ad litem to be paid from a state fund, the court shall establish an hourly rate and a maximum fee for the appointment, which shall not exceed the hourly rate and maximum fee established by court rule for abuse and neglect cases. No funding from a state fund for guardian ad litem fees shall be available to a party whose income is 200 percent or more of the federal poverty level.
(b) When appointing a guardian ad litem to be paid directly by the parties, the hourly rate and maximum fee for the appointment shall be established by written agreement between the guardian ad litem and the parties. The hourly rate shall be not more than twice the rate for state fund cases and shall not exceed 23 hours, unless the parties agree otherwise. The fees for services of 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 determined by the court. In determining the responsibility for payment or repayment, the court shall consider:
(1) The income of the parties;
(2) The marital or nonmarital assets of the parties;
(3) The division of property made as part of the final divorce, if applicable;
(4) Which party requested appointment of the guardian ad litem; and
(5) Other relevant factors.
V. The guardian ad litem shall not exceed the maximum fee for the appointment, or provide services, without prior approval from the court, after a hearing. If the parties agree to the guardian ad litem's request to exceed the maximum fee, the hearing may be waived.
VI. Unless otherwise ordered by the court or by agreement of the parties, the services of the guardian ad litem shall conclude [upon the issuance of the final order] upon filing his or her report.