Court Services Administration Committee July 14, 2006 Minutes

Court Services Administration Committee

MINUTES

Radisson Hotel, Bismarck July 14, 2006

Members Present
Justice Carol Ronning Kapsner, Chair
Judge Sonja Clapp
Judge Donovan Foughty
Referee John Grinsteiner
Jim Hill
Joyce Harnden
Judge Donald Jorgensen
Courtney Koebele
Chuck Peterson
Deb Simenson

Members Absent
Bill Brudvik
Rep. Lois Delmore
Dorothy Howard
Mark Johnson
DeWayne Johnston
Rep. William Kretschmar
Justice Mary Muehlen Maring

Others Present
Sherry Mills Moore
DeAnn Pladson

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (July 7, 2006) - Minutes of the April 7, 2006, meeting. It was noted that Deb Simenson was incorrectly reflected as being absent and that Rep. Delmore was absent, rather than both present and absent.

It was moved by Jim Hill, seconded by Rep. Delmore, and carried that the minutes, as corrected, be approved.

Report of Custody Investigator Subcommittee - Proposed Amendments to Rule 8.6, Rules of Court

Chair Kapsner drew attention to Attachment C (March 31, 2006) - the proposed amendments to Rule 8.6, Rules of Court, developed by the Custody Investigator Subcommittee. She thanked Subcommittee members for their work on the project and welcomed Sherry Mills Moore, who served as Subcommittee Chair, for discussion of the proposed amendments.

Ms. Moore briefly reviewed the general charge to the Subcommittee - to review the current rule concerning custody investigators and consider possible changes to respond to issues regarding qualifications and disposition of complaints about investigator conduct. She said the Subcommittee reviewed rules from other jurisdictions governing custody investigators, and also rules governing guardians ad litem since, in some other jurisdictions, they fulfill similar responsibilities. With respect to how complaints would be handled, she said the Subcommittee concluded a process somewhat similar to the lawyer discipline system would be a workable approach. She said the proposed amendments would create a custody investigator review board composed of 9 members - three judges and one lawyer appointed by the Chief Justice, two lawyers appointed by the SBAND Board of Governors, and three lay custody investigators appointed by the Chief Justice after consultation with the President of the bar association. The board, she said, would review complaints if the chair of the board has determined there is merit in the allegations contained in the complaint. If the complaint concerns matters in a pending case, she said the complainant would be informed that the matter must be addressed either by seeking removal of the custody investigator or by contesting the information or recommendation made by the investigator. She said allegations in a complaint would be reviewed to determine whether identified forms of misconduct, which are set out in Section (f)(3) of the proposed amendments, have occurred. She noted that a code of conduct is also proposed as an appendix to the rule and violation of the code of conduct would be a form of misconduct. She said the proposed amendments also address confidentiality, timeframes for disposing of complaints, and training requirements. With respect to qualifications, she said the proposed amendments would make the current "suggested" qualifications mandatory. She explained further that one aspect of the mandatory nature of the qualifications is that if an attorney, for example, could not satisfy the mandatory academic or experience qualifications in Section (b)(1), then the attorney would be required, as an alternative, to complete a 40 hour training program. She noted that the proposed amendments would require a formal roster of custody investigators and would establish a requirement that an investigator appointed to provide services under the rule must be selected from the roster.

In response to a question from Jim Hill about the anticipated volume of complaints, DeAnn Pladson, also a Subcommittee member, said past experience indicates about three to five complaints have been received over time. She said it is uncertain whether the availability of the complaint process will result in an appreciable increase in the number of complaints.

In response to a question from Jim Hill, Sherry Moore said the review board's decision with respect to disposition of a complaint would be final, i.e., there is no provision for an appeal.

Jim Hill asked judge members of the Committee whether there would be any problems associated with being able to select custody investigators only from the formal roster. Judge Jorgensen said he has had no difficulty with the current informal roster. He cautioned that it would be necessary to ensure there are adequate numbers of custody investigators available if the qualifications and roster placement become more formalized. Judge Clapp agreed it is important to ensure availability of a sufficient number of custody investigators from which to choose. She said she has had occasions on which, because of conflicts, she has gone fairly deep into the current list before finding an available custody investigator.

Chuck Peterson drew attention to the 40 hour training program available for attorneys who would not otherwise satisfy the academic or experience qualifications. He said the alternative seems to be an appropriate way of addressing the qualification issue while still enabling attorneys to serve as custody investigators. Sherry Moore noted that the intensive training requirement will ensure that an attorney has appropriate background knowledge to serve as an custody investigator.

Jim Hill drew attention to the timeframe for disposition of complaints set out in Section (f)(6) - complaints must be resolved within twenty-five days if the complaint involves a pending case or within 120 days for all other complaints. He asked what the consequence would be if the timeframe is not met. Sherry Moore said the Subcommittee discussed the issue at length and concluded it would be highly unlikely for a complaint to require more than 120 days for disposition. Jim Hill responded that there may, nevertheless, be instances in which the time requirement cannot be satisfied. He said if the consequence is that the complaint, in essence, goes away, then the rule should make that clear. He noted that under the lawyer discipline rules, the chair has the authority to extend the time limit if that is considered necessary and appropriate. He suggested it may be worth considering addition of language to that effect. Chuck Peterson agreed such language would be a helpful addition.

It was moved by Jim Hill, seconded by Courtney Koebele, and carried that the proposed amendments be modified to add on page 7, line 15, the following: "These timeframes may be extended by the chair upon a finding by the chair that good cause exists for the extension."

Sherry Moore said the Subcommittee was also asked to consider whether a provision setting a fee should be included in the rule. She said the Subcommittee discussed the matter at length and concluded that an arbitrary fee may inadvertently result in shrinking the pool of available custody investigators. She noted that the code of conduct addresses the issue by instructing investigators that fees should be "reasonable" and requiring investigators to provide a timely accounting of time and make the fee known to parties in advance of the investigation. In response to a question from Judge Jorgensen, DeAnn Pladson said there is no standard hourly rate for custody investigator services. Sherry Moore said market factors, and regional issues, largely determine whether a particular fee is acceptable.

It was moved by Jim Hill, seconded by Chuck Peterson, and carried that the proposed amendments to Rule 8.6, Rules of Court, as further modified, be approved and submitted to the Supreme Court for its consideration.

Pro Se Forms - Subcommittee Report

Chair Kapsner next drew attention to Attachment D (July 7, 2006) - proposed forms and revisions to existing forms developed by the Pro Se Forms Subcommittee. She also noted instructions for the child support modification forms which were distributed separated as an attachment dated July 11, 2006. She thanked the Subcommittee members for their work on the project and welcomed DeAnn Pladson, who served as chair of the Subcommittee, for an overview of the proposed forms and revisions.

DeAnn Pladson explained that the proposed forms concern motions for review and amendment of a child support obligation and also address stipulations to stop enforcement of a child support obligation. She briefly reviewed the components of the forms. She said minor changes were made to the current simple divorce forms to remove personal identifying information that should not be solicited on the forms under Rule 3.1, Rules of Court, and to add a property and debt listing form and related instructions. Staff noted that the forms are substantially the same as those reviewed at the Committee's April 2006 meeting. He said the Subcommittee essentially fine-tuned the forms following the April meeting. With respect to the revisions to the current child visitation forms, DeAnn Pladson said the revision is in response to an email inquiry from an attorney and clarifies in the forms and instructions that the 13 day timeframe for responsive pleadings means 13 "business" days.
With respect to pro se forms generally, Judge Jorgensen said it is important that litigants understand the importance of filling out the forms completely and providing all the information that is required for the court to make a decision. He said stipulated divorces are particularly troublesome since, many times, the parties fail to adequately complete the forms. Judge Clapp agreed incomplete forms are an issue that requires constant attention. She said she often will set the matter for hearing if the forms do not reflect adequate information.

Referee Grinsteiner, a Subcommittee member, observed that the child support forms will ensure to a greater degree that courts will receive much more complete information than they have before with respect to motions to modify child support.

It was moved by Chuck Peterson, seconded by Referee Grinsteiner, and carried that the proposed forms for review and amendment of child support, and the related instructions, be approved and submitted to the Supreme Court for its consideration.

It was moved by Judge Jorgensen, seconded by Jim Hill, and carried that the revisions to the child visitation forms to clarify the 13 business day timeframe for responsive pleadings be approved and submitted to the Supreme Court for its consideration.

Chair Kapsner next drew attention to the proposed revisions to the current simple divorce forms. DeAnn Pladson reiterated that the revisions remove unnecessary references to personal identifying information, add a property and debt listing form with related instructions, and add a provision for the parties' social security numbers in the judgment form, which is required by statute.

It was moved by Jim Hill, seconded by Courtney Koebele, and carried that the proposed revisions to the simple divorce forms be approved and submitted to the Supreme Court for its consideration.

Chair Kapsner next requested discussion regarding the proposed forms for stipulations to stop child support. Staff noted that the proposed forms - in draft versions - were reviewed at the April 2006 meeting. He said the forms are based on a form used in the SouthCentral judicial district and would allow parties to stipulate that enforcement of a child support obligation would stop under certain circumstances. Essentially, he said, the form has been used when the parties reunite and are living together with the children. The forms also provide a mechanism to reinstate the support obligation.

Justice Kapsner asked whether there should be notice to the obligor, and perhaps to the regional child support enforcement office, if a party notifies the court that reasons for the stipulation are no longer present and seeks reinstatement of the obligation.

Referee Grinsteiner explained that the process in the past has been very informal and has responded to those circumstances in which the parties patch up their differences and resume living together with the children. In those circumstances, he said, the stipulation has allowed the parties to agree that payment of child support would be stopped. Reinstatement, he said, would likewise be handed informally if the obligee were to notify the court that the parties' are no longer on good terms and have separated again.

Judge Jorgensen asked whether stopping and reinstating the child support obligation would essentially be an amendment to the underlying child support judgment. Referee Grinsteiner said the stipulation process was an attempt to avoid the amending process because of the complications related to the parties' frequently changing their minds, which could result in amendment upon amendment of the underlying judgment. In response to a question from Judge Jorgensen, Referee Grinsteiner said the stipulation is in essence an order of suspension since the underlying judgment is still in place and if the circumstances of the stipulation change, the underlying child support obligation recommences based on the judgment.

DeAnn Pladson said one method of addressing the issue might be to develop a form for an order that the court would sign on request of a party, which would vacate the stipulation order, and then notice of entry of the order vacating the stipulation could be served on the other party.Chuck Peterson asked how the order for child support would be reinstated without notice to the other party. He said there should be some opportunity for the obligor to appear and comment before the order terminating the stipulation is granted.

Deb Simenson noted that a similar stipulation form has been used in Burleigh County for a couple of years and there has never been an occasion when a party has requested that the obligation be reinstated.

Justice Kapsner said there appear to be two issues that require attention - notice to the other party that the conditions of the stipulation are considered to have ended and the involvement of the court in directing that the child support obligation will start again.

Judge Jorgensen said there is also an issue concerning the involvement of the child support enforcement offices, such as signing off on the stipulation that there are no outstanding claims for public assistance reimbursement. He said it should be relatively simple to forward the stipulation to the regional child support enforcement office for their endorsement or objection. DeAnn Pladson observed, and Judge Jorgensen agreed, that involving child support enforcement in that manner essentially would render them a party to the stipulation. Deb Simenson noted that when stipulations have been used in Burleigh County, the child support enforcement office is sent a copy of the stipulation and can respond to the stipulation. In response to a question from DeAnn Pladson, Referee Grinsteiner explained that the stipulation forms could not be used if TANF or foster care is involved and child support enforcement offices therefore involved. He said the forms are intended for use in situations in which public assistance is not involved. Judge Jorgensen noted there are situations in which the parties have lived together with the children, they separate and the mother receives public assistance of some duration, the parties reunite and public assistance ends, but there is an accrued arrearage for the public assistance once received. He said the stipulation could be used to stop the current child support obligation, but the outstanding arrearage related to public assistance previously received would still exist and is subject to enforcement without regard to the obligor having resumed living with the obligee. For those reasons, he said, it would be helpful if the forms included a simple provision by which child support enforcement could indicate approval or disapproval of the stipulation.

Following further discussion, Committee members agreed the proposed stipulation forms should be reserved for further discussion and consideration.

There being no further business, the meeting was adjourned at 11:35 a.m.

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Jim Ganje, Staff