August 27th, 2012 by Robert Franklin, Esq.
Recently I did a piece on a promising development in New Hampshire – the actions of the Redress of Grievances Committee of the state House of Representatives. Apparently, citizens can take their complaints against state officials to the Committee, have them heard and, if they’re deemed founded, the Committee will recommend action by the legislature. The findings of the Committee’s investigation into the outrageous behavior of family court judges, Marital Masters, Guardians ad Litem and the like make it clear just how out of control are the family courts of the Granite State. Indeed, those courts and their personnel plainly behave as they wish, regardless of due process of law, regardless of evidence law and regardless of litigants’ rights and children’s well-being. Impeachment was the recommendation for more than one state official.
But a question arises; how can courts act with such impunity? How can they behave in such a wild West, answerable-to-no-one manner?
The answer is because they are in fact answerable to no one. Most trial courts have an appellate court looking over their shoulder, and lower court judges are usually very sensitive to their reversal rate. They want to get their rulings right and strive to do so by being playing by the rules. That’s in stark contrast to family courts of New Hampshire, and now I know why, thanks to one of the fathers who complained to the Committee for the Redress of Grievances.
It seems that, back in 1978, the legislature gave the state Supreme Court the power to make and implement rules for the lower courts of the state to abide by. There’s nothing unusual about that, except that, in New Hampshire, the Supreme Court decided, contrary to the clear language of the enabling statute that those rules would have “the force and effect of law.” What did that mean? Well, with regard to family courts, one of the rules passed by the Supreme Court was that there would be no appeals from trial court rulings! That’s right, the judges were freed to do anything their heart desired with no concern that an appellate judge would overrule them. As far as I know, no other state allows trial courts such unfettered discretion. And neither does New Hampshire except for family court judges. All the other judges have to watch their P’s and Q’s, but not family courts.
And guess what happened. The astonishing behavior described by the Committee happened, and does to this day. After all, refusing to set matters for hearings, blatantly violating enumerable state laws, refusing to hear or read proffered evidence, refusing to give notice of hearings, taking children from fathers with no finding of unfitness, etc. are all legal errors an appeals court would correct. With not appeals court to do so, the people running the family courts are behaving like children with no adult supervision.
So why did the Supreme Court make such a patently bad rule strictly for family courts? My source in New Hampshire writes, “In the NH Bar Notes about that rule, the chief justice of the supreme court and the clerk of the court, both women, said there were just too many appeals coming from fathers and they were overloading the system.”
So, in the time-honored tradition of anti-father advocates everywhere, the quickest way to deal with dads who think they have rights is to deny them any. Hey, it’s easier and cheaper than asking appellate courts to think about why so many children don’t have a father.
And it turns out that, in New Hampshire, family courts are more than doing their part to keep fathers out of their children’s lives. There, fathers get custody in only 20% of contested cases and an astonishing 5% of uncontested ones.
But it doesn’t end there. In New Hampshire, judges aren’t elected, they’re appointed via the usual game of who knows whom. That’s always been the case, but, prior to the Supreme Court’s power grab, if a judge misbehaved, the legislature could remove him/her from office quickly and easily. Indeed, the entire Supreme Court was once removed from office in just that way. But now, since the high court arrogated to itself legislative power, the only thing the legislature can do is pass laws that contradict what the Supreme Court does, allegedly through it’s rule-making power.
So now there’s a ballot initiative called CACR-26. It’s already been passed by the state legislature, and it’s now before the people to vote on. It would end once and for all the Supreme Court’s claim of legislative power and, simultaneously put an end to the rule that insulates family court judges from scrutiny by appellate courts.
Passage of CACR-26 would finally allow fathers in New Hampshire to appeal the frankly illegal actions of family court judges. Given that, we can expect those family court judges to start abiding by the rules of procedure and evidence. That is, they’ll be held to the same standards as other judges in the state and other family judges nationwide. Any dad who’s dealt with those judges knows that’s not a great leap forward, but at least fathers in New Hampshire will have a little more power in their fight to maintain active, loving relationships with their kids.