By PAULA TRACY, InDepthNH.org
CONCORD – One of the architects of the Family Division of the state’s Circuit Court told a special legislative committee he would like to see judges with an interest and background in family cases only hearing such matters and that the existing system also needs more clerical help.
Edward “Ned” Gordon of Bristol said waiting two to three weeks to release an order after it is issued because of a lack of clerical staff is unacceptable when children and families need the resolution.
It is more important to have more staff, he said, than more judges.
Gordon, who as a state Senator advocated for the creation of the family division and then as a judge went on to serve in it for 12 years until his retirement in 2018, and served in the House until 2022.
He talked about a program he is involved in now, available statewide in Concord and without charge to help parties know what a judge would likely rule if and when they go to court. It is called the Neutral Case Evaluation program.
It uses retired judges, who listen to a dispute after mediation attempts. After about three hours or so, the retired jurist can give confidential advice to the parties on what will likely happen if they proceed to court.
It is an effort to resolve matters better, he said, and before taking valuable court time up. About 50 percent of the cases are resolved this way, he said.
The special legislative committee also heard about the state’s mediation program in the family court; the Bureau of Child Support on how it interacts with the public and the court; and from members of the public who are mostly aggrieved by their contact with the family division and what recommendations they would make for change.
The committee is learning about how the court system works and possible legislative changes and financing to improve its functions statewide with an eye toward allowing for the best possible outcomes for children and their parents.
The Family Division of the state court system operates in 28 locations across the state in all 10 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.
Gordon was a circuit court judge in 2005 and volunteered in 2006 to serve in the newly created family court and stayed for 12 years.
He is also involved and the committee heard previously from him in relation to the Guardian ad Litem program, as he is on its board.
“I will tell you two things about judges,” he told the committee. “They are not problem solvers. They are decision-makers,” he said and many individuals go to court with the wrong idea.
“Judges decide decisions pretty mechanically,” he said and they are bound by the laws created by the legislature, issues of child support, alimony, division of property, case law, rules, best practices, and protocols.
“The second thing you need to know about judges is that they are human,” he said.
“They are just as fallible as everyone else,” he said. “so you have to take your chances when you go before a judge.”
There is a long process to correct what goes wrong in a court and it is the appeal process, he noted.
What happens in Neutral Case Evaluations is that process can be avoided through a mutual settlement.
Retired judges hear from the parties and do their best to determine how they would be better off with a settlement rather than rolling the dice in front of a judge, he said.
Gordon noted the court has long recognized that the old standard trial procedure is not always the best way to solve highly emotional family disputes.
One example being used more frequently but before Neutral Case Evaluations is mediation.
The commission also heard from Margaret Huang, alternative dispute resolution coordinator within the New Hampshire Office of Mediation and Arbitration.
Mediation, she said is a voluntary, informal process to work out decisions. It is an opportunity to resolve matters that address the concerns of the parent and children.
The focus is on impartial, neutral, and unprejudiced moderation to come up with voluntary and uncoerced solutions.
Even if not all the matters can be resolved, some can help to reduce the amount of time needed before a judge or NCE evaluator.
People in mediation can speak confidentiality, without fear what they say will be held against them, Huang said.
This is a relatively new addition to the state.
“Parties are able to talk about what is most important to them even if it is relevant to the law,” she said.
It is not appropriate for every case including matters involving allegations of abuse or undue hardship.
In 2021 3,228 such mediations were held and 22 percent fully settled, she said.
The cost for mediation is about to increase to $450 a case, split up between the parties and up from a fee of $300.
Mediation does not give parties anticipation of what a judge would decide as Neutral Case Evaluations do, she noted.
Gordon was asked what is not working within the family court system.
In addition to unrealistic expectations that the court will solve the problems, there is an issue with judges.
He said the state once had a system of marital masters, all of whom had practiced family law and knew that aspect of the law.
“Now we are appointing judges with no experience in family law and I think that is an issue we should look at,” he said. “Not that they are not capable, but do they want to do it?”
He said some judges would prefer to not handle such cases.
Gordon also said he thinks it is important that New Hampshire is making sure it has the resources it needs to have the job done and right “and now I don’t think there are particularly with staffing more than judges. I’ve seen orders ruled on and not sent out for two or three weeks or longer. That is not acceptable when dealing with families and children. These are critical issues and they need the resources.”
When the state started the family division with pilot programs in Rockingham and Grafton counties, he said, there was one judge for it and consistency in rulings.
“I guess I would like to see that happen,” again and he said, “People who are doing the cases want to hear the cases and are the most qualified to hear the cases.”
Rep. Marjorie Smith, D-Durham, co-chair of the committee, who served as its chair Tuesday asked if there is any reasonable way that the process for assigning judges to the family court could differ.
Gordon said he didn’t know the answer to that.
“There was a time when…many judges decided they did not want to,” hear family court cases, “So that narrowed the pool. But now it appears everyone is appointed with the expectation that they will hear family division cases.”
He said if judges can be assigned to different types of cases “I think it cuts down somewhat on efficiency to do that, but at the same time maybe you can end up with a better product, too.”
As for geography, Smith asked, did he see a problem with that where judges would have to travel, like the old system?
Asked to put his hat on related to guardians ad litem, she asked Gordon if there are occasions when a judge favors a certain GAL and in the appearance of unfairness or favoritism.
He said judges often pick people they know who are good at some aspect and some appear more competent.
And asked about whether who pays for such a guardian, if there is an appearance of preference for that party who is paying.
He said, yes, it creates a problem with appearance.
“Perhaps they think the GAL might look more favorably at them,” he said.