The Law Firm of Bucknam Black Davis PC

Enforcement of Family Court Orders–Vermont and New Hampshire comparison

What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire?  Let’s look  at the rules.   Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party.  In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court.  A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.

Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children).  Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing.  This rule applies in both ongoing cases, and in closed cases.

Rule 16 also provides as follows: “The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court.”   Emphasis added.

Thus the rule not only requires  costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial  discretion on what is  a “clear and substantial”. violation.  As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial.    Here is where I believe the Vermont rule needs to be changed.   The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order.  Why? Two reasons:  First, because as the survey respondents indicated,  the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously.  Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt.  Litigants should not be put in that position.

New Hampshire’s   Family court contempt rule has less onerous procedures than Vermont’s.   Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding.   However, if there is an ongoing proceeding, a New Hampshire litigant  need only file a motion with no affidavit, and service need only be by first class mail.  There is no provision for a period of time for the alleged contemnor to answer.

Substantively, there is also a large difference between the rules concerning a finding of contempt.  New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt  “upon a finding of the violation of any Court order”.  Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont;  merely that the order has been violated.

New Hampshire’s rule makes more sense.  First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont.  To require  an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator.  Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders.   Americans believe strongly that court orders should be strictly enforced.  After all, as one client said to me, if a court won’t enforce its own orders, who will?

Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished,  without having to shoulder the heavy  burdens  imposed by Vermont Family Rule 16.


OPINION: Vermont Court reform required for Vermont’s neediest children

>If a child is abused by his parents, there are two legal avenues to protect the child. One, outlined in Chapter 53 of Title 33 of Vermont Statutes Annotated, provides for the state to take custody and guardianship of the child, and provides a mechanism for reunification or termination of parental rights in an orderly, speedy and understandable process.
The other legal process occurs when a family member or family friend, rather than the state, seeks to obtain custody and guardianship. That process is slow, confusing and expensive. Families who seek to protect children from abuse without state intervention are penalized by a Byzantine system that keeps them in court for years.

The first process, outlined in Chapter 53 of Title 33 provides that if a child is abused, the State of Vermont may petition the court for an emergency order. If the court determines that the child is in need of care, and cannot remain at home, it will issue an emergency order awarding temporary custody to the state. Next, the statutes require a hearing within 72 hours and appointment of attorneys for the children and parents. Further procedural safeguards include a requirement for the state to provide a temporary care plan, and the court to hold a merits hearing within 60 days, in which the state must prove that the child is in need of care and supervision by the state. If the child remains in state custody, then the statutes require that the state prepare a plan within 28 days outlining steps families must take for reunification. The court must hold a hearing on the plan and approve it. Within 60 days, the court must review the progress made in the plan for reunification.

If parents are not making reasonable efforts to achieve the goal of reunification, the goal will change to termination of parental rights or other permanent legal status for the child. Here the statutes require a court to adopt a plan for achieving the permanency goal, and determine timelines. A permanency hearing to determine the progress towards those goals must be held no less often than every 12 months.

The goal of these statutes is to first give parents the opportunity to obtain custody of their children under a plan for reunification, and if parents fail, to provide a reasonably fast termination procedure so that children are not held in limbo for years.

The second situation, where a family or friend attempts to protect an abused child through a court process, is undoubtedly preferable to the state taking custody of a child and placing him in stranger’s home. Yet the procedure is entirely different from that outlined in Chapter 53.

The party seeking protection for the child first must go to Probate Court—not Family Court– to obtain a guardianship over the child. The statutes regulating under what conditions the State may take custody of a child are lengthy and specific. The guardianship statute, in contrast, articulates no understandable standard for the court to determine whether a guardianship should be awarded when there is abuse. The statute provides that a guardianship may be awarded if a parent is “incompetent or unsuitable”. The statute provides no other guidance.

If the probate court awards guardianship, it is indefinite, unless and until the court decides that “the parent is then a proper person to have the care and custody of the child.” There is no procedure outlined for when the probate court must make that determination, and no statutory guidance as to when a parent becomes a “proper person”.

If a guardian wants to terminate an abusive parent’s rights, the guardian must again petition the probate court. While there are specific standards in the statutes in determining whether parental rights should be terminated, there is no procedure whatsoever for a plan for reunification, or a permanency plan monitored by the court as there is when the state has custody of abused children. Thus there is no roadmap for either the parent or the guardian to follow to move to either reunification or permanent termination. Finally, the statutory provisions for revoking guardianship and the provisions for terminating parental rights are not related and do not reference each other. Thus if there are competing motions to revoke guardianship and terminate parental rights, the court is provided no guidance as to what standards to use, or even which issue to try first.

The situation becomes worse if one of the parties appeals a probate court decision. The rules provide that an appeal of a guardianship decision or a decision to terminate parental rights goes to Superior Court, not Family Court. Moreover, the rule provides for a “trial de novo”, or a brand new hearing on the issues. A party can even ask for a jury trial under the rule—although it is not clear whether a court may grant the request.

The provision for a trial de novo is not clear. The rule for appeal to Superior Court requires a statement of questions to be filed by the appellant, and that the Probate Court must transmit “the paper and exhibits” in the probate matter to Superior Court. Thus it is unclear as to whether the Superior Court can take into account the proceedings in Probate Court, or whether it must only consider the evidence in a hearing before Superior Court.

Finally, unlike the procedure in Family Court for dealing with abused children who are in state custody, there is no provision for appointment of attorneys for the parties. Thus family members who want to protect abused children must incur the expense of their own attorneys.

Families who want to protect children from abusive parents without state involvement are penalized by a court procedure which makes little sense and provides virtually no guidance to the court or the parties. Moreover, the procedure provides for jurisdiction of courts ill equipped to deal with issues concerning custody and termination of parental rights. Family courts routinely deal with issues involving parents and children, including custody, termination of parental rights, and parent child contact. To place the burden of such momentous decisions on courts that do not routinely deal with such issues is unfair to the courts and the parties.

This procedure should be reformed to mirror the procedure outlined in Chapter 53 of Title 33. While in many cases, the state intervenes in abuse cases, there should be a provision for the court to make decisions about protecting children without requiring state involvement when there are competent and caring relatives or friends who seek court assistance. The same child protection statutes should apply to all parties, whether it is the state or private individuals attempting to protect children.

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