Ex-judge says family court cases should be limited to judges with expertise in area

Ned Gordon tells special legislative panel Family Division also needs more resources

Editor’s note:  This article has been corrected. Rep. Marjorie Smith is vice chair of the Special Committee on the Family Division of the Circuit Court, not co-chair.

One of the architects of the Family Division of the state’s Circuit Court has told a special legislative committee he thinks the system would work better if family cases were solely heard by judges who have an interest and background in such law.

In addition, Ned Gordon of Bristol, a former state senator and former judge, said the existing system needs more clerical help.

Gordon said waiting two to three weeks to release an order after it is issued because of a lack of clerical staff is unacceptable when children and families need the resolution. In fact, he said, it is more important to have more staff, he said, than more judges.

Gordon, who as a state senator, advocated for the creation of the family division and then as a judge, went on to serve in it for 12 years until his retirement in 2018, and served in the House until 2022.

He talked about a program he is involved in that is available statewide and without charge to help parties know what a judge would likely rule if and when they go to court. It is called the Neutral Case Evaluation program.

It uses retired judges, who listen to a dispute after mediation attempts. After about three hours or so, the retired jurist can give confidential advice to the parties on what will likely happen if they proceed to court.

It is an effort to resolve matters better, he said, and before taking up valuable court time. About 50 percent of the cases are resolved this way, he said.

‘Judges are human’

The special committee also heard about the state’s family court mediation program, the Bureau of Child Support and how it interacts with the public and the court as well as from members of the public who are mostly aggrieved by their contact with the family division and what recommendations they would make for change.

The committee charged with coming up with possible legislative changes to improve the division’s functions, with an eye toward allowing for the best possible outcomes for families.

The Family Division of the state court system operates in 28 locations across the state in all 10 counties.

Cases include divorce and parenting action, child support, domestic violence petitions, guardianship of minors, termination of parental rights, abuse and or neglect cases, children in need of services, juvenile delinquency, and some adoptions.

Gordon was a Circuit Court judge in 2005 and volunteered in 2006 to serve in the newly created family court and stayed for 12 years.

The committee previously heard from him in relation to the guardian ad litem program, on whose board he serves.

“I will tell you two things about judges,” he told the committee. “They are not problem-solvers. They are decision-makers,” he said, adding that many individuals go to court with the wrong idea.

“Judges decide decisions pretty mechanically,” he said, and they are bound by the laws created by the Legislature, issues of child support, alimony, division of property, case law, rules, best practices and protocols.

“The second thing you need to know about judges is that they are human,” he said. “They are just as fallible as everyone else, so you have to take your chances when you go before a judge.”

Gordon also noted the court has long recognized that the standard trial procedure is not always the best way to solve highly emotional family disputes.

Alternative dispute resolution

The commission also heard from Margaret Huang, alternative dispute resolution coordinator in the Office of Mediation and Arbitration.

Mediation, she said is a voluntary, informal process to work out decisions. It is an opportunity to resolve matters that address the concerns of the parent and children.

The focus is on impartial, neutral and unprejudiced moderation to come up with voluntary and uncoerced solutions.

Even if not all matters can be resolved, some can help to reduce the amount of time needed before a judge or NCE evaluator.

People in mediation can speak confidentiality, without fear what they say will be held against them, Huang said.

“Parties are able to talk about what is most important to them, even if it is relevant to the law,” she said. In 2021 3,228 such mediations were held, and 22 percent were fully settled, she said. The cost for mediation is about to increase to $450 a case, split up between the parties and up from a fee of $300.

Gordon, asked to evaluate what is not working in the family court system, said that there also is an issue with judges.

He said the state once had a system of marital masters, all of whom had practiced family law and knew that aspect of the law.

“Now we are appointing judges with no experience in family law, and I think that is an issue we should look at,” he said. “Not that they are not capable, but do they want to do it?”

He said some judges would prefer not to handle such cases.

Gordon also said he thinks it is important that New Hampshire is making sure it has the resources it needs to have the job done and right “and now I don’t think there are, particularly with staffing more than judges. I’ve seen orders ruled on and not sent out for two or three weeks or longer. That is not acceptable when dealing with families and children. These are critical issues and they need the resources.”

When the state started the family division with pilot programs in Rockingham and Grafton counties, he said, there was one judge for it and consistency in rulings.

“I guess I would like to see that happen” again, he said. “People who are doing the cases want to hear the cases and are the most qualified to hear the cases.”

Rep. Marjorie Smith, D-Durham, vice chair of the committee, asked if there is any reasonable way the process for assigning judges to the family court could differ.

Gordon said he didn’t know the answer to that.

He said at one time “judges decided they did not want to” hear family court cases. “So that narrowed the pool. But now it appears everyone is appointed with the expectation that they will hear family division cases.”

He said if judges can be assigned to different types of cases, “I think it cuts down somewhat on efficiency to do that, but at the same time maybe you can end up with a better product, too.”

This article originally appeared on IndepthNH.org, a nonprofit news website published online by the NH Center for Public Interest Journalism.