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Family Division Cannot Issue An Order That Delegates Decision On Parenting Time To A Third Party

On Behalf of | Jul 13, 2020 | Divorce & Family

On July 10, 2020, the New Hampshire Supreme Court, in the case of In re: Kamil, issued an order that could have far-reaching implications in contested custody hearings.  In Kamil the wife was allowed supervised contact with her children.  However, she would need to demonstrate to the satisfaction of a mental health professional that she first acquired the skills necessary to have contact with her children before the supervised visits would start.  The wife argued that the court placed this mental health provider in the role of a fact-finder and decision maker as to how and when she could progress towards seeing her children.  In so doing, the wife argued this constituted an impermissible delegation of judicial responsibility to a private citizen.

The Supreme Court agreed and held that judicial authority cannot be delegated to a non-judicial third party.  It cited cases from a number of other courts which have held that the authority to determine the custody and visitation of a minor child cannot be delegated to a third party because that would be a judicial function.  Ultimately, it is the court itself that must make a decision in a contested custody case as to whether a parent can have parenting time with their child.  Therefore, the portion of the parenting plan which gave the mental health professional sole discretion as to when and under what circumstances the wife could see her children in the Kamil case was vacated.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A.  Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].