By PAULA TRACY, InDepthNH.org
CONCORD — The House Children and Family Law Committee narrowly approved an amended bill Tuesday that would require judges in child custody cases to give both parties “approximately equal parenting time.”
This changes sections of RSA 461-A:2 that now contain the words “frequent and sustained contact,” said Rep. Lorie Ball, R-Salem.
Exceptions exist in cases where abuse and/or neglect are alleged. The wording was interpreted differently by about three judges in courts and was considered vague, some said, while others said the move was not necessary and would only further confuse the volatile situation.
House Bill 185 was sponsored by state Rep. Lisa Post, R-Lyndeborough, retained and now amended by a 9-7 vote Tuesday.
A public hearing on the non-German change was held on Tuesday, and several parents said they believed the change, while minor, was seen as a positive improvement to current law.
That included Dana Albrecht, a father of four, who said, “I wish I could see them,” but in the seven years since his trial began, he said he has only seen his children a total of 30 to 40 days.
“I would like to see it,” Albrecht said, but added that some people, especially those with financial means, might be opposed.
Heather Desmond also spoke in favor of the amendment and provided written testimony to the committee.
This year, a special committee was convened to look at judicial action in custody cases. Gayle Drobat of Amherst wrote to InDepthNH.org citing concerns that parents testified about in the Child and Family Law Committee and the Special Committee to Investigate the District Court – Family Division.
“Numerous parents have testified that enacting shared parenting would be a step in the right direction to better protect children and families in New Hampshire. “It will reduce the adversarial nature that family court creates by pitting parents against each other with one winner taking all, resulting in unequal orders that harm the children of New Hampshire,” Drobat wrote.
She said the New Hampshire Supreme Court recognized: “As to the private interest of parents, we have always recognized that the right to raise and care for one’s children is a fundamental liberty interest guaranteed by the State Constitution is protected.”
“Parental rights are natural, essential and inherent rights as defined in the state constitution,” and “the loss of one’s children may be considered a more severe punishment than a prison sentence.”
In family court proceedings, Drobat said, it is not uncommon for a parent to be relegated to being a visitor every other weekend of their children’s lives.
There is no consistent and equal protection and no fundamental freedom interests set out in the federal and state constitutions, she said.
The House will be asked to vote on amended HB 185 when it returns in the new year. The committee also voted on a number of other bills on Tuesday, with the majority recommending rejection.
Ball, a member of the committee, told Chairman Mark Pearson, R-Hampstead: “What we found in our investigation by the Special Committee to Investigate Family Courts is that we have a very small number of judges who are not frequently and consistently interpret.” “Contact” should be 50/50 if possible, so parents and families who go to different courthouses are not treated the same because the law is interpreted differently.
“That’s why we want to formalize and ensure that all judges have equal rights and all families in the courthouses receive fair and equitable consideration,” Ball explained.
Rep. Candace Moulton, D-Manchester, said she’s been going back and forth on this bill all week and “it’s not a decision that should be taken lightly.” However, the current language is very vague and could be described as a telephone conversation rather than a personal interaction can be defined.
“There are parties out there who will use this as a weapon against the other person, who will interpret it based on how it is written, and then based on how they understand those words.” And because language does not provide anything else to determine “How the judges should order it, then we run into a lot of problems here,” said Moulton.
“That includes my own. But I’m not here to talk about my own situation, I’m also hearing about all the other stories we’ve heard,” Moulton said. The purpose of the amendment is to “set boundaries” for both parties.
But Vice Chairman Patrick Long, D-Manchester, said the change in language potentially complicates matters further, saying that in his opinion roughly equal parenting time has nothing to do with phone calls.
“I would imagine the judges would be more perplexed by ‘approximately’ than by ‘frequent and sustained contact,'” adding, “I think they will have their own opinion about what ‘approximately’ is.” If So while we’re trying to narrow down the differences that they’re talking about, I don’t think that’s really the case,” Long said.
Ball replied: “about” is in there because there may be times when it’s not exactly the same – like a school release day that gives a parent a few more hours – but the attempt is to use this “weapon of language ” to eliminate.
State Rep. Heather Raymond, D-Nashua, said the distance of each parent’s locations can influence judges’ decisions.
Ball said it gives judges an opportunity to support a mutual agreement between parents.
Rep. Maria Perez, I-Milford, said she was uncomfortable with the change because Rep. Moulton alluded to her personal situation surrounding child custody.
“We (are) here to work for the community, not for our personal goals,” Perez said.
Moulton reiterated that she was not supporting or pushing the matter for personal reasons.
Rep. Alicia Gregg, D-Nashua, said this was discussed frequently during special committee deliberations in recent months and there were only three justices who did not use the presumption.
“Divorce is never easy,” Gregg said. “If we legislate something like this … I think it’s going to create a lot more problems than the couple it would solve,” Gregg said.
She said she feared people would stay in the house with the perpetrators.
Ball said she hasn’t 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 stayed.
“I believe that if parents were told at the beginning of their divorce proceedings, ‘Don’t bother trying to get full custody in a situation where there is no abuse.’ Don’t bother asking because the judge will support 50/50′, it will relieve a lot of tension, a lot of anxiety, a lot of arguments and it will allow the family to move on.”
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