Tuesday, October 25, 2005

Case Law Development: Dismissal of Domestic Violence Petition Required if No Hearing within 30 Days

In a 3-2 opinion, the Supreme Court of New Hampshire has held that the failure to hold a hearing within 30 days of filing a domestic violence petition requires the dismissal of the action. The police had assisted petitioner in filing for a protective order after respondent had threatened her life and that of their 10-year-old son. When the matter came for a hearing (13 days after the petition was filed) the judge realized he had formerly represented the respondent and recused himself. A new hearing was scheduled for 21 days later but the defendant requested a longer hearing, requiring resetting the hearing for a date 60 days after the original petition was filed. Defendant then moved to dismiss the petition because of the failure to hold a timely hearing.

Both the majority and dissenting judges agreed that the statutory requirement was clear and was not met by the court in this case. Both also agreed that the statute provided no clear remedy for the failure to comply with the deadlines for hearings. The majority opinion, relying on legislative history and analogizing to the strict application of hearing timelines in juvenile cases, found that the purpose of the domestic violence legislation was to balance the rights of defendants against the protection of victims of domestic violence. The dissent found that the clear and overriding purpose of the legislation, as stated in the statute itself, was to protect victims and that the defendant’s rights were neither mentioned in the statutory statements of purpose nor prejudiced in this case such that dismissal of the petition would be necessary or appropriate.

McCarthy v. Wheeler, 2005 N.H. LEXIS 153 (October 18, 2005)
Opinion on the web at http://www.courts.state.nh.us/supreme/opinions/2005/mccar110.htm (last visited October 22, 2005 bgf)

http://lawprofessors.typepad.com/family_law/2005/10/case_law_develo_22.html

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