NH Family Law Legislative UPDATE – Guardians ad Litem

This New Hampshire legislative session has been a busy one thus far for family law.  At this time, there are five bills that would, if passed, have a significant impact on families going through divorce or parenting proceedings in New Hampshire. One of those is HB 1775, now in the Senate, which addresses the appointment and function of the Guardian ad Litem (“GAL”) in parenting cases.

While the decision to appoint a GAL still rests within the discretion of the court, the bill sets forth criteria for the court to consider in deciding whether or not to make the appointment.  The factors include the age of the child, the wishes of the parties, the contentiousness of the proceeding, the financial resources of the parties and any history of domestic violence within the family.  The bill limits the responsibilities of the GAL and would prevent GAL reports from proposing an allocation of decision making rights, a parenting plan or a parenting schedule unless specifically requested by the court.  While final reports would still be required to be filed, there would be no requirement for a preliminary or temporary report unless ordered by the court.

HB 1775 also addresses allocation of GAL fees between the parties.  When considering the allocation of GAL fees between the parties, a court would be required to consider not only income and assets, but also which party requested the appointment of the GAL.  In cases where GAL fees are to be paid from a state fund, the court would establish an hourly rate and maximum fee.  It is noteworthy that appointment of a GAL in cases where the parties cannot afford to pay is a major change from the present law.  In private pay cases, the hourly rate and maximum fee would be set by written agreement between the GAL and the parties, with the maximum to be exceeded only by agreement of the parties or court order.

To avoid any misunderstanding regarding the GAL’s continued role in a case, the GAL appointment would conclude upon issuance of a final parenting order.

If passed, HB 1775 would be effective on January 1, 2019.

About the Author: Judith A. Fairclough

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