By PAULA TRACY, InDepthNH.org
CONCORD – By a narrow margin, the House Children and Family Law Committee approved an amended bill Tuesday that would require judges in child custody cases to give “approximately equal parenting time” to both parties.
This changes sections of RSA 461-A:2 where the words “frequent and continued contact” now exist, said Rep. Lorie Ball, R-Salem.
There are exceptions in cases where abuse and/or neglect is alleged. The language is being interpreted differently by about three judges in courts and is considered vague, said some, while others said the move is not necessary and will only further confuse a volatile situation.
House Bill 185 was sponsored by state Rep. Lisa Post, R-Lyndeborough, retained and now amended on a 9-7 vote Tuesday.
A public hearing was held on the non-germane amendment Tuesday and several parents said they believe that while the change was small, it would be considered a positive improvement in current law.
This included Dana Albrecht, a father of four who said, “I wish I could see them,” but in the seven years since his proceedings began he said he has only seen his children for a total of 30 to 40 days.
“I would be happy to see it,” Albrecht said, but he added that some people, particularly those of financial means, might oppose it.
Heather Desmond also spoke in support of the amendment and handed written testimony to the committee.
A special committee studying judicial actions in custody cases was convened this year. Gayle Drobat of Amherst wrote to InDepthNH.org noting concerns parents have testified about in the Children and Family Law Committee and the Special Committee Investigating the Circuit Court – Family Division.
“Numerous parents have testified…that passing a presumption of Shared Parenting would be a step in the right direction to better protect New Hampshire children and families; it will lessen the adversarial nature the family court creates by pitting parents against each other and a winner-takes-all, creating unequal orders harming New Hampshire children,” Drobat wrote.
She said the New Hampshire Supreme Court has recognized, “As to the private interest of the parents, we have consistently recognized that the right to raise and care for one’s children is a fundamental liberty interest protected by the state Constitution.”
“Parental rights are natural, essential, and inherent rights within the meaning of the state Constitution,” and “the loss of one’s children can be viewed as a sanction more severe than imprisonment.”
In family court proceedings, Drobat said, it is not uncommon for one parent to be relegated to an every other weekend visitor in the lives of their children.
There are equal protection in the constitutions, but there is not equality in Parental Rights and Responsibilities Laws, she said.
The House of Representatives will be asked to vote on the amended HB 185 when they return in the new year. The committee also voted on a number of other bills Tuesday with the majority recommended to be killed.
Ball, a member of the committee, told Chairman Mark Pearson, R-Hampstead, “What we have found in our investigation through the special committee investigating family courts is that we have a very small number of judges who are not interpreting ‘frequent and continued contact’ as equal to 50/50 as possible, therefore, parents and families going into different courthouses are not being treated equally because the law is being read differently.
“So we would like to formalize and make sure that all judges are on equal footing and all families get fair and equitable considerations in the courthouses,” Ball explained.
Rep. Candace Moulton, D-Manchester, said she had been back and forth about this bill all week, and “it is not a decision to be taken lightly.” That said, the current language is very vague and could be defined as phone calls instead of face-to-face interaction.
“We do have parties out there that will weaponize this against the other person who will interpret it according to how it is written but then how they are taking those words to mean. And because the language doesn’t have anything further to direct how the judges are supposed to order it, then that is where we run into a lot of problems,” Moulton said.
“That includes my own. But I am not here to talk about my own situation, I am also hearing about all the other stories we’ve heard,” Moulton said. The purpose of the change is to “put boundaries up” for both parties.
But state Rep. Patrick Long, D-Manchester, the vice chair, said changing the language possibly complicates it more, and said approximately equal parenting time has nothing to do with phone calls in his mind.
“I would see judges being more perplexed on ‘approximately’ than the ‘frequent and continuing contact,'” adding, “I think they are going to have their own opinions on what ‘approximate’ is. So if we are looking to narrow the differences that they are thinking, I don’t believe this really does it,” Long said.
Ball responded “approximately” is in there because there are possibly times when it is not exactly equal – like a school release day gives one parent a few more hours – but the attempt is to take that “weaponization of the language out.”
State Rep. Heather Raymond, D-Nashua, said distance of locations of each parent can impact judges’ decisions.
Ball said it gives the judges the opportunity to support a mutual agreement between parents.
Rep. Maria Perez, I-Milford, said she felt uncomfortable with the amendment because Rep. Moulton alluded to her personal situation related to custody.
“We (are) here to work for the community not for our personal agenda,” Perez said.
Moulton reiterated she was not supporting the matter or advancing it for personal reasons.
Rep. Alicia Gregg, D-Nashua, said this has been something that has been gone over a lot during the special committee’s consideration over the past few months and there are just three judges that have not used this presumption.
“Divorce is never easy,” Gregg said. “When we put something like this in law…I believe it is going to create many more issues than the couple that it would solve,” Gregg said.
She said she feared that people would stay in the house with abusers.
Ball said she has not seen any data to support that situation and said there are some who feared they would get less than 50 percent of the time and have stayed.
“I believe that if parents were told going into their divorce case that ‘don’t bother trying to get full custody in a situation where there is no abuse. Don’t bother asking for that, because the judge is going to support 50/50’, it’s going to alleviate a lot of tension, a lot of anxiety, a lot of fights and it allows the family to move on.”