The New Hampshire Circuit Court is implementing a new system to address the backlog in divorce and parenting cases that have dragged on for more than 12 months without resolution. An analysis of family law cases in 2013, from the time of filing to the date of disposition or final decree, has shown that 86% of all filings have been resolved within 12 months. In 14 % of cases, however, the final resolution of the issues facing families involved in divorce, parenting and other emotionally charged matters has taken more than 1 year and in 3 % of the cases more than 24 months. In order to address this problem in promptly providing relief and finality to families in these cases the Circuit Court has implemented a “Family Division Complex Case Docket” that is predicted to be open for business in early 2015.
The primary goal of the new docket will be to identify those cases which are most complex, whether due to the novelty of the legal issues, the intricacy of the assets involved or the specific personal characteristics of the litigants. The Court intends to target which cases are most in need of this program, assign them to one docket and one presiding judge in an effort to move them through the system more efficiently and expeditiously. In the process the Court intends to utilize advanced alternative dispute resolution techniques in an attempt to help the parties reach agreement. By assigning cases to the complex docket there will be a corresponding benefit to other cases in the system which are often impacted by the resource demands that complex cases place on the regular docket.
Judge Robert J. Foley is to serve as the presiding judge of the Family Division Complex Case Docket. Pleadings filed in cases that are accepted for this new docket will be filed in the 7th Circuit – Family Division in Dover, NH. Hearings will normally be held there as well. In very unusual instances cases may be held in other circuit locations and creative use of telephone or videoconferencing may be utilized. Although the venue will be Dover the cases will maintain their original docket numbers from the original court where the case was filed. Cases assigned to this new docket may be at the sole discretion of the Chief Administrative Judge of the Circuit Court or upon the referral of any Circuit Court Family Division Judge before whom the matter is pending. As this is a pilot program transfer requests will be open to internal assignments only until the number and type of cases can be determined and managed. At some point in the future there may be a mechanism for counsel or the parties to request transfer of their case into the new docket.
There is no precise benchmark or formula for the types of cases that may be appropriate for this new docket. “Complex” cases may involve one or more of the following factors:
- Novel Legal Issues
Is the law unclear, complicated, or is there a choice of law controversy? Do legal instruments at issue include ambiguous or complicated provisions? Is there a high likelihood of a unique or controversial appellate issue?
- Complexity of Assets – Does the case involve the contested division of complex assets, multiple assets with disputed values or involve business and other intangible assets?
- Challenging Legal and Non- legal Issues – Are there high conflict issues between the parents? Are there issues of substance abuse or mental health issues interfering with the parties’ management of their case? Is domestic violence an issue or has either parent raised charges of undue influence or alienation against the other parent? Does the case involve highly litigious parties?
- Projected Length of Trial – Is a multiple day trial projected as opposed to only a few hours?
- Urgency of Adjudication – Is there a critical need for a fast resolution?
- Efficiency – Can the case be more efficiently handled in a specialized docket?
The primary goal of the new system is to match cases with the resources necessary to address them. There will be a presumption that each case being transferred to the complex docket will begin with advanced alternative dispute resolution (ADR) in the form of mediation, co-mediation with mediators of particular expertise, neutral evaluation and resort to some of the principles and features of collaborative law. Each case will be assigned only to Judge Foley, they will be closely managed and Judge Foley has pledged to utilize novel and case specific methods to assist the parties reach an agreement or in the alternative he will issue binding decisions.
As this is a pilot program only cases from the 7th Circuit will be assigned to the new docket with limited availability to cases from other circuits. The initial program is expected to provide valuable information that will support the expansion and broadening of the program. It is hoped that this novel approach to resolving difficult cases will provide relief to individuals, families and children who are in great need of coming to terms with the complex issues that these cases present.