SB 441-FN - AS INTRODUCED
2000 SESSION
SENATE BILL 441-FN
AN ACT relative to temporary orders in domestic situations where there has been no finding of abuse.
SPONSORS: Sen. Fernald, Dist 11; Sen. McCarley, Dist 6
This bill authorizes the court to issue temporary orders relative to child custody and support and possession of personal residence and contents in cases where there has been no finding of abuse.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
00-2723
04/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand
AN ACT relative to temporary orders in domestic situations where there has been no finding of abuse.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Statement of Purpose. The general court recognizes there may be situations where, even without a finding of domestic violence or abuse, circumstances may occur which cause the breakdown of otherwise peaceful living arrangements between household members. In certain cases, the breakdown may be serious enough that it would not be advisable for the individuals involved to continue to live in the same household. In such cases, the equity jurisdiction of the court should be used to temporarily separate the individuals in order to prevent further escalation of the situation and to facilitate a "cooling off" period between the household members.
2 New Chapter; Equity Orders in Certain Domestic Situations. Amend RSA by inserting after chapter 173-C the following new chapter:
CHAPTER 173-D
EQUITY ORDERS IN CERTAIN DOMESTIC SITUATIONS
173-D:1 Definition. In this chapter, "household member" means:
I. Spouses, ex-spouses, and adults cohabiting with each other.
II. Parents and other persons related by consanguinity or affinity other than minor children sharing the same residence.
173-D:2 Jurisdiction. All district courts shall have concurrent jurisdiction with the superior court over all proceedings brought under this chapter.
173-D:3 Commencement of Proceedings; Hearing.
I. Any person may seek relief under this chapter by filing a petition, in the county or district where the petitioner resides, alleging a breakdown of the domestic relationship between household members which makes it no longer prudent or possible for the parties to continue to live together. Any person filing a petition containing false allegations shall be subject to civil and criminal penalties. Notice of the pendency of the action and of the facts alleged against the respondent shall be given to the respondent, either personally or as provided in paragraph III. The petitioner shall be permitted to supplement or amend the petition only if the respondent is provided an opportunity prior to the hearing to respond to the supplemental or amended petition. All petitions filed under this section shall include the home and work telephone numbers of the respondent, if known. Any answer by the respondent shall be filed with the court and a copy shall be provided to the petitioner by the court.
II. No filing fee or fee for service of process shall be charged for a petition or response under this section, and the petitioner or respondent may proceed without legal counsel. Either a peace officer or the sheriff's department shall serve process under this section. Any proceeding under this chapter shall not preclude any other available civil or criminal remedy.
III. The clerks of the district and superior courts shall supply forms for petitions and for relief under this chapter designed to facilitate pro se proceedings. All such petitions shall contain the following words: "I swear that the foregoing information is true and correct to the best of my knowledge. I understand that making a false statement on this petition will subject me to criminal penalties."
IV. Upon entry of any action in a district court, where the court determines that there is pending in the superior court a cause of action involving the same parties arising out of the same situation on which the district court action is based, the case shall be transferred to the superior court to be heard as if originally entered in the superior court, unless the district court determines that the interests of justice or expediency require the district court to exercise jurisdiction. Any transfer to the superior court under this paragraph shall be made as soon as practicable following entry of the action.
V. The findings of facts shall be final, but questions of law may be transferred from the district court to the supreme court in the same manner as from the superior court.
VI. The court shall hold a hearing within 14 days of the filing of a petition under this section or within 10 days of service of process upon the respondent, whichever occurs later.
VII. In any proceeding 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.
173-D:4 Relief.
I. Upon a showing by the petitioner, by a preponderance of the evidence, of a breakdown of the domestic relationship between household members which makes it no longer prudent or possible for the parties to continue to live together; the court shall grant such relief as is necessary and may include:
(a) Directing a separation of the household members.
(b) Enjoining a party from entering the premises wherein the other party resides.
(c) Enjoining a party from contacting the other party at, or entering, the other party's place of employment or school.
(d) Enjoining a party from harassing, intimidating or threatening the other party or the other party's relatives, regardless of their place of residence, or the other party's household members in any way.
(e) Enjoining a party from taking, converting or damaging property in which the other party may have a legal or equitable interest.
(f) Granting to a party the exclusive right of use and possession of a residence, the household furniture, furnishings, and automobile unless the other party exclusively owns such personal property and the other party has no legal duty to support the petitioner or minor children.
(g) Awarding temporary custody of the parties' minor children to either party, or, where appropriate to the department of health and human services, provided that where custody of the parties' minor children may be appropriate with the department of health and human services, the department of health and human services shall receive actual notice of the hearing 10 days prior to said hearing, and provided that, if necessary, said hearing may be continued for 10 days to provide the department adequate notice, and the department of health and human services may move at any time to rescind its custody of the parties' minor children.
(h) Establishing temporary visitation rights with regard to the parties' minor children.
II. No order made under this section shall supersede or affect any court order pertaining to the possession of a residence; household furniture; custody of children pursuant to RSA 169-B, 169-C, or 169-D; support or custody made under RSA 458; or title to real or personal property.
III. Any order under this section shall be for a fixed period of time not to exceed 90 days, but may be extended for an additional 90 days, by order of the court, upon motion by a party showing good cause, with notice to the respondent. A party shall have the right to a hearing on the extension of any order under this paragraph to be held within 10 days of the extension. The court shall retain jurisdiction to enforce and collect the financial support obligation which accrued prior to the expiration of the order.
IV. Both parties shall be issued written copies of any orders issued by the court and all orders shall bear the following language: "A willful violation of this order is a crime, as well as contempt of court. Violations shall result in arrest and may result in imprisonment." Orders shall clearly state how any party can request a further hearing and how a party may bring a criminal complaint if there is a violation of any court order.
V. No order issued under this chapter shall be modified other than by the court. Temporary reconciliations shall not revoke an order.
173-D:5 Guardian Ad Litem. In all proceedings under this chapter, the court may appoint a guardian ad litem to represent the interests of the children of either or both parties. Said guardian ad litem may continue to serve after the final disposition of the case.
173-D:6 Notification.
I. A copy of any order made under this chapter which prohibits any person from interfering with the person or liberty of another or which affects either party's access to or possession of either party's residence shall be transmitted forthwith to the local law enforcement agency having jurisdiction to enforce said order. Orders shall be promptly served on a party by a peace officer. Law enforcement agencies shall establish procedures whereby a peace officer at the scene of an alleged violation of such an order may be informed of the existence and terms of such order.
II. Any court-ordered changes or modifications of the order shall be effective upon entry of such changes or modifications, and shall be mailed or otherwise provided to the appropriate local law enforcement agency within 24 hours of the entry of such changes or modifications.
173-D:7 Violation of Court Order.
I.(a) Irrespective of whether a party chooses to pursue the contempt remedies in paragraph II, when a party violates an order issued or enforced under this chapter by committing assault, criminal trespass, criminal mischief, stalking, or another criminal act, or commits a violation of an order issued under this chapter, peace officers shall arrest the party, detain the party pursuant to RSA 594:19-a, and refer the party for prosecution.
(b) Subsequent to an arrest, the peace officer shall seize any deadly weapons in the control, ownership, or possession of the party which may have been used or threatened to be used, during the violation of the order. The law enforcement agency shall maintain possession of the weapons until the court issues an order directing that the weapons be relinquished and specifying the person to whom the weapons shall be relinquished.
II.(a) Upon notice to the court by a party, someone designated by a party, or any peace officer alleging that a party has violated any order issued under this chapter, the court shall issue a summons to such party, requiring such party to appear within 10 days for a hearing on whether such party should be found in civil or criminal contempt of court and punished therefor. Any such hearing may be held by the court in any county or district in which either party temporarily or permanently resides at the time of the alleged violation.
(b) A hearing on a charge or allegation of criminal contempt shall not preclude a hearing on other criminal charges underlying the contempt, nor shall a hearing on other criminal charges preclude a hearing on a charge of criminal contempt.
III. A person is guilty of a misdemeanor if such person knowingly violates an order issued under this chapter, or RSA 458:16, III, or any similar order issued by any other state, territory, or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia.
173-D:8 Orders Enforceable.
I. Any order issued under this chapter shall be effective throughout the state, in all districts and counties.
II. The superior court, in any action determining the obligation of the obligor to support the obligee or the parties' minor children, including but not limited to actions for divorce pursuant to RSA 458; custody pursuant to RSA 458; paternity pursuant to RSA 168-A; child support pursuant to RSA 161-B, RSA 161-C, and RSA 458; reimbursement of public assistance pursuant to RSA 161-C; and the uniform interstate family support act pursuant to RSA 546-B; shall take judicial notice of any support obligation established under this chapter upon the filing of a certified copy of the district court order in the superior court by:
(a) Either party to proceeding;
(b) The department of health and human services; or
(c) Any other agency or person legally entitled to enforce the obligation of
support for the minor children.
III. Any superior court order for financial support shall include enforcement of any duly filed district court order from the date of filing forward, and shall include enforcement of any arrears which have been:
(a) Reduced to judgment by the district court;
(b) Documented by the department of health and human services pursuant to an order to make support payable through the department; or
(c) Documented by the obligee in a notarized statement, provided that the obligor shall have 30 days to object and request a hearing on the issue of arrears.
3 Effective Date. This act shall take effect January 1, 2001.
LBAO
00-2723
12/17/99
SB 441-FN - FISCAL NOTE
AN ACT relative to temporary orders in domestic situations where there has been no finding of abuse.
FISCAL IMPACT:
The Judicial Council has stated this bill may increase state expenditures by an indeterminable amount in FY 2001 and each year thereafter. The Department of Health and Human Services states this bill will increase state general fund expenditures by $5,000 and restricted revenue by $7,809 in FY 2001 and each year thereafter. There will be no fiscal impact on county or local expenditures and local revenue.
METHODOLOGY:
The Council has stated this bill enables the court to issue temporary restraining orders, a violation of which becomes a misdemeanor. The Judicial Council assumed that any cases arising from the enactment of this law for which the Indigent Defense Fund may be liable, will, in the first instance be handled by the Public Defender or contract attorneys who accept these cases on a fixed fee basis of $250 for each misdemeanor charge. If an assigned counsel attorney must be used, the hourly rate of $60 with a fee cap of $1,000 for misdemeanor cases will apply. If a motion to exceed the fee cap is approved and/or "services other than counsel" are approved, these will also be chargeable to the Indigent Defense Fund. Charges associated with the appointment of Guardian Ad Litem (GAL) will be paid through the GAL Fund. These cases are handled by court certified GALS who are paid $60 per hour. There are no established fee caps. The Council is unable to predict the number of cases or trials which may arise as a result of the passage of this legislation, therefor, they are unable to estimate the dollar amount of the anticipated costs of the criminal representation or GAL appointments.
LBAO
00-2723
12/17/99
Page 2
The Department of Health and Human Services expects the Division of Child Support Services Legal Unit will be involved in 100 of these cases per year. It is likely the Division will already be involved in 50 of the cases so the impact on the Department will be 50 new cases at an average cost of $318. The child support program is funded with 66% federal funds resulting in a net state cost of approximately $100 per case, or $5,000. In addition, the Division of Child Support would also collect approximately $83,300 in child support payments on the 50 new cases. Seventy-five percent ($62,475) would go directly to parents who do not receive assistance. Of the remaining $20,825, half would reimburse the federal government for assistance, and the remainder would reimburse the state for TANF payments. The Department expects 75% of the state portion, or $7,809 will be collected.