New Hampshire Family Law Blog : New Hampshire Divorce Lawyer & Attorney : Crusco Law Firm : Family Law, Custody, Child Support : Manchester, New Hampshire, Massachusetts

Before the advent of the internet, finding proof of infidelity often fell to the hands of the private investigator and a telephoto camera lens. Yet, with today’s technology, from spyware to GPS trackers, spouses can play private investigator themselves. Software such as Spector Pro and E-Blaster, that captures chats, instant messages, emails, websites, keystrokes, and screen shots and are either saved to the computer or sent to a remote location, can be easily installed on home computers. GPS trackers, costing between $100 and $400, can provide incriminating information on a spouse’s whereabouts. Evidence obtained through these methods, such as graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home, can make or break a fault divorce. Additionally, the evidence may be useful for other matters in a divorce, as Jason Brown of the Minnesota Divorce & Family Law Blog points out. Attorney Brown highlights on his blog that information about who your spouse is exposing your children to can be extremely valuable in assisting the court in determining the best interests of your children. Child support and alimony cases can also benefit from information about your spouse's employment and work patterns.

But is the evidence that you collect admissible in court? And even more importantly, is gathering information in this manner legal?

New Hampshire is one of 15 states to pass anti-spyware legislation. RSA 359-H criminalizes knowingly causing a computer program or spyware to be copied onto the computer, on which the person is not an authorized user, and using the program or spyware to collect personal information “through intentionally deceptive means, such as through the use of a keystroke logging function, and transferring that information from the computer to another person.” However, the statute does not provide for a blanket exclusionary rule with regard to whether this intercepted information may be used as evidence at a civil trial. Whether the evidence comes in is left to the discretion of the court.

Other states have upheld a trial court’s ruling to exclude the evidence. In Florida, a wife, using the Spector program, secretly installed the spyware on her husband’s computer and was able to capture entire conversations the husband had had with another woman. The husband discovered the program, and asked the court to prevent the wife from using the evidence. The trial court ruled, and the appellate court agreed, that although the state and federal wiretapping statute did not have an exclusionary rule, the court had the discretion to exclude the evidence because it was obtained illegally.

Whether the evidence will come before the court comes down to the facts surrounding how the evidence was obtained. Was the spyware installed before or after the separation? Was the spyware on a family computer that both spouses used or had access to? Arguably, evidence obtained from spyware installed by an “authorized user” onto a family computer prior to a separation would be admissible. However, installing spyware onto a spouse’s workplace computer would probably produce evidence that would be excluded because it was obtained illegally.

GPS trackers on the other hand are not covered by a specific law such as the wiretapping or spyware statutes. However, some law enforcement agencies have taken the position that placing a GPS tracker on a spouse or ex-spouse’s vehicle is stalking and have brought criminal charges against the tracker installer. The Nashua Police recently charged Kevin Merritt with misdemeanor stalking after he installed a GPS tracker on his estranged wife’s vehicle and used the information to follow her to various locations. Whether the police would prosecute and the court would allow the information to be used as evidence would come down to the specific facts of the case, including how the information gleaned from the tracker is used and who owns the vehicle.

In the end, the muddy waters of electronic information gathering require the advice of an experienced attorney to help navigate the specifics of your situation. Contact Crusco Law Office, PLLC to schedule an appointment to discuss your New Hampshire case.  

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For the next three months, the 2009 tax season is upon us. For divorcing couples, whether to file separately or jointly, who will claim the children and how to address alimony can add even more stress to the divorce and to tax season. However, Attorney Nancy Van Tine of the Massachusets Divorce Law Montior offers these five simple tax tips:

• Child support is not tax deductible. If you pay the child support, you pay the taxes.
• Alimony is tax deductible to the payor, and taxable to the payee.
• Property settlement, or property transfers, pursuant to a divorce decree are not taxable. However, as Attorney Van Tine points out, this is only true for opposite sex marriages. Same sex marraiges have different rules as Attorney Van Tine blogged about here.
• Transfers of pensions can be transferred without any tax consquences through a Qualified Domestic Relations Order (again, only if your are in a opposite sex marriage).
• The IRS has five tips for recently married or divorce taxpayers regading name changes.  

I would add to Attorney Van Tine's list these tips:

•  If you do not have a court order regarding the child tax credit, then you must follow the IRS rules. Specifically, the parent who has residential responsiblity and parenting time more than 50% of the time is entitled to claim the child.
• If your divorce decree has not been issued prior to December 31st, you may file jointly or separately. However, if your divorce is final by December 31st, you cannot file jointly. Take a look at IRS Publication 504 for more information.

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I came across a must read post by Robert Mues of the Ohio Family Law Blog about how to dress for court. With all the preparation going into your case, planning your attire is probably not high on your priorities. However, it is an important part of your presentation and the impression that you make on the judge can have a lasting effect.

Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.

Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.

So, while you are going over your testimony, reviewing your proposed orders and preparing your exhibits, take a few moments to pick out and press your clothing for court. Making that good impression will kick start a good presentation to the judge.

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Unless you have been living under a rock the last few weeks, you have come across the Tiger Woods story. The car crash, the rumors of domestic violence, and, of course, the cheating. According to reports, Elin discovered the affair by going through Tiger's phone records. Jaimee Grubbs, one of Tiger's many mistresses, has come forward with more than 300 flirty, steamy text messages as evidence of the affair. As smartly phrased by Laura Holson of the New York Times, text messages are the new digital lipstick on the collar.

Tiger is not the only person of notoriety to be caught by a text message. Detroit's former major, Kwame Kilpatrick, went to jail after lying about an affair with an aide and then having sexually explicit test messages surface. Senator John Ensign was caught having an affair when his mistresses husband, who was also his aide, found text messages on Senator Ensign's phone. And the list goes on and  on.

Otherwise intelligent men and women seem to believe that the digital evidence of their trysts disappear into the ether with their texts, never to be seen again. That is, until your spouse or her attorney dig it up. Daniel Clement, of the New York Divorce Report writes:

In the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

So, especially in the State of New Hampshire where divorcing spouses may plead fault grounds, sexters beware! Evidence of infidelity in the digital age is easy to find, and divorce attorneys know where to look. The evidence will most likely come to light before or during your divorce. If you do not want to be caught, refrain from the affair.

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A Guardian ad Litem investigation is often a stressful and intrusive process. However, it is important to remain cooperative and informative as possible during the case. Here are some tips on how you should conduct yourself during the process.

· Return the GAL Stipulation and Questionnaire Promptly: When the GAL is first appointed, he will send out to you or your attorney a Guardian ad Litem Stipulation and a questionnaire. The GAL Stipulation is an agreement between you and the GAL that sets forth the issues the GAL will investigate, how the GAL will be paid, and other mattera such as access to the children’s mental health records. The questionnaire is a form that the GAL uses to gather information and background on your family and identify issues and areas of disagreement. It is very important to complete and return these items to the GAL as soon as possible.

·Set up your initial meeting with the GAL per the GAL’s instructions: When the GAL receives the appointment, she will send you a letter with instructions. Some GALs will ask that you return the stipulation and questionnaire first, and then call to set up an appointment. Others will set up an appointment right away. Read the letter from the GAL and follow instructions for setting up your first appointment. If you do not hear from the GAL after a few weeks, call the GAL to check in and see what your next steps should be.

· Provide complete contact information for references: The GAL will ask you to provide him with references to speak to regarding you and your family. These may be friends and family, or professionals such as teachers who are familiar with either you, your coparent or the children. Provide the GAL with complete contact information for these references, including an address, telephone number and email if appropriate.  

· Provide the GAL with copies of court documents, orders, and pleadings: If you do not have an attorney to manage your case for you, when the GAL is appointed make sure to provide him with copies of the court orders, pleadings or other relevant documents. It is enormously important, as the GAL only receives the GAL appointment and possibly the court order issued with that appointment. Having you provide the pleadings and court orders that necessitated the appointment of the GAL, as well as the orders for the current parenting schedule, will give the GAL important background on your case.

· Cooperate with the GAL investigation: The GAL may ask to schedule a home visit with the children, or that you bring the children to her office. The GAL may also ask for authorizations to speak to medical providers or other professionals that require a release. Respond to the GAL’s requests promptly, and provide her with information that she requests.

·  Be relevant and informative: There are probably a lot of reasons your relationship with the other parent broke down. While the GAL will want a brief overview, unless the issues have significant relevance to the children, try not to spend a lot of time on non-child issues. For example, the breakdown of your marriage may have been caused by an affair your spouse carried on. However, unless your spouse is introducing the children to their new significant other or making concerning choices about priorities between the children and the new relationship, that is an issue best left to the court and your therapist.  

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The New Hampshire Supreme Court issued an opinion on December 4, 2009 in the case of In the Matter of Adam Muchmore and Amy Jaycox, a domestic relations case pertaining to the modification of a parenting plan. In Muchmore & Jaycox, the Court holds that a parenting plan cannot be modified solely based on the best interests of the child, and instead the modification must comport with the statutory scheme laid out in RSA 461-A:11. The decision is disappointing, though not unexpected since the Court simply strictly applied the statute, because it prevents parents from modifying a parenting plan for issues such as a new schedule for the transition into kindergarten. Based on this decision, it will be important for the legislature to take action to allow modifications to a parenting schedule that do not rise to the level of the factors enumerated in the statute.

As background, Adam Muchmore and Amy Jaycox are parents of a minor child born in 2006. They previously resided in Vermont but have each since moved to New Hampshire. A June 2007 Vermont Order granted Amy Lecroix “primary legal and physical parental rights and responsibilities” for the child and allowed the petitioner, Adam Muchmore, regular weekly contact with the child.

In July 2008, Muchmore petitioned the Lebanon Family Division to modify the parenting plan pursuant to RSA 461-A:11, claiming that (1) Jaycox had “repeatedly, intentionally, and without justification” interfered with his parental responsibilities for the child and modification would be in the child’s best interests; (2) that there was clear and convincing evidence that the child’s present environment was harmful to her; and (3) because of the respondent’s conduct, the original allocation of parental rights and responsibilities was not working.

The Lebanon Family Division ruled that Muchmore had failed to meet his burden of proof with regard to each of the reasons for modification he cited, pursuant to 461-A:11; I(b), I(c), and I(d). The court went on to hold, however, that Muchmore’s petition was “sufficient to establish that modifying the parties’ parenting schedule would be in the child’s best interests, and that, pursuant to RSA 461-A:4 (Supp. 2008), proof that modification was in the child’s best interests was all that was required.” Jacox appealed to the Supreme Court.

The Supreme Court acknowledged that the circumstances under which a parent may seek modification of an existing parenting plans is governed by RSA 461-A:11, and concluded that because Muchmore did not meet his burden under that statute that he is not entitled to a modification. Muchmore argued that even if he failed to meet his burden under 461-A:11, a parent should be allowed to modify a parenting plan when the modification is in the best interests of the child, citing 461-A:4 as support for his assertion. The court held that even though 461-A:4 referenced a “proceeding to establish or modify”, that statute was aimed at the initial construction of a parenting plan while 461-A:11 governed actual modifications. 

The Court recognized in its opinion that this result was somewhat regrettable in that it prevented a court from “reassessing the best interests of a child in circumstances where the parents are not interfering and where the child’s current environment is not detrimental,” those circumstances being the majority of cases in practice. However, the Court continues, “RSA 461-A:11, I, does not grant the court discretion to modify an existing plan under any other circumstances” and that it is not up to the court to solve that problem or “to speculate as to how the legislature might choose to do so.” (Emphasis added). Simply put, the court is saying that if the legislature wanted to include a provision for the best interests of the child in 461-A:11 it could have chosen to do so. The Court, in the end, relies on strict statutory interpretation and deference to the public policy decisions of the legislature to assert that their hands were effectively tied.

However, without a provision to allow for some limited modifications based on best interests, a parenting plan that addresses the needs of a toddler may have to do for a tween. The parenting plan form itself encourages parents to view the plan as a work in progress as the children grow and their needs change from infant to teen, but the statute itself does not allow for the changes except in the case that the parents agree or major issues develop as set forth in 461-A:11. It is certainly understandable that the legislature would not include a best interests standard for change in major categories such a primary residential responsibility, as this would just encourage more litigation and allow parents to petition the court for modification whenever they might have the upper hand. However, for routine and holiday schedule changes or other issues that do not call for a change in residential responsibility, there needs to be a mechanism to allow for modification based on best interests so that the court may tweak a parenting plan as the current needs of the child dictate.  

 Crusco Law Office, PLLC  Law Clerk Daniel McLaughlin contributed to this post.

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New Hampshire has recently taken steps to protect parents and children from cross border kidnapping by adopting the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1997, becomes effective in New Hampshire on December 1, 2010. Vermont and Massachusetts remain the only states that have not adopted the UCCJEA.

Prior to NH’s adoption of the UCCJEA, we were operating under the umbrella of its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA) which had been adopted in all 50 states. The UCCJA, which was written in 1968, contained broad and sometimes vague language that allowed for courts in different jurisdictions to interpret the statute differently. These difficulties were further complicated by the passage of the Parental Kidnapping Prevention Act (PKPA) in 1980 that tangled with the UCCJA in determining jurisdiction for initial custody disputes. Complications arose between states in determining a child’s “home state” and enforcing judgments across state lines, with PKPA and UCCJA having differing standards for determining what custody determination were to be given “full faith and credit” between states. The drafting and passage of the UCCJEA cleans up these conflicts and puts these statutes in order.

Exclusive continuing jurisdiction

Under the UCCJEA, once the “home state” of the child has been determined (home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding), and child custody orders have been issued, that state has “exclusive continuing jurisdiction” that is entitled to full faith and credit across the country. This prevents other jurisdictions from modifying that order in any way, unless and until the original state has relinquished jurisdiction. This is a large step forward from UCCJA, where different interpretations caused conflicting orders and simultaneous proceedings.

Best interests, jurisdiction and the substantive merits

Additionally, while the UCCJA was designed to promote “best interest of the child” over whom custody was at issue, including the “best interests” was interpreted by some courts as an summons decide the merits of custody dispute while determining jurisdiction, or even that “best interests” should override jurisdiction considerations That was not the drafter’s intention and as such, the UCCJEA eliminates the term “best interests” so that the jurisdictional issues are clearly separated from the merits of the custody dispute.

Enforcement

The UCCJEA also sets out a unified system of enforcement mechanisms which were lacking under old law. Under UCCJA, enforcement evolved differently among the states, with, for example, one state requiring a Motion to Enforce or a Motion for Full Faith and Credit to initiate enforcement proceedings, while another required a writ of habeas corpus or a Citation for Contempt. These differences in enforcement resulted in increased cost, decreased certainty in outcome, and long and drawn out enforcement proceedings, allowing one parent to hold on to custody far longer than they should otherwise be able to. In addition to unifying the process, the UCCJEA now provides specific remedies for enforcement including:

1)      Procedure for registering a custody determination with another state to allow a party to predetermine whether a custody determination will be recognized in another state,

2)      A swift habeas corpus type remedy for immediate review of custody violations or disputes to allow parents to maintain their awarded visitation or parenting time,

3)      Extraordinary remedy – meaning if the enforcing court is concerned that the parent, who has physical custody of the child, will flee or harm the child, a warrant to take physical possession of the child is available, and

4)      There is now a role for public authorities, such as prosecutors, in the enforcement process. 

As to the role of public authorities in the enforcement of custody orders, the Prefatory Note to the UCCJEA states:

If the parties know that public authorities and law enforcement officers are available to help in securing compliance with custody determinations, the parties may be deterred from interfering with the exercise of rights established by court order. The involvement of public authorities will also prove more effective in remedying violations of custody determinations. Most parties do not have the resources to enforce a custody determination in another jurisdiction. The availability of the public authorities as an enforcement agency will help ensure that this remedy can be made available regardless of income level. In addition, the public authorities may have resources to draw on that are unavailable to the average litigant.

These changes will be welcome, both among attorneys and parents, as they now bring a level of certainty to parenting rights and responsibility determinations within New Hampshire and throughout the Country.  It is unfortunate, however, that the only two states yet to adopt the UCCJEA happen to be two of the three states with which we share a border, Massachusetts and Vermont. With any luck, they will follow suit shortly.

Crusco Law Office Law Clerk Daniel McLaughlin, contributed to this post.

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Effective upon the opening of the new Manchester Family Division on November 12, 2009, the Administrative Office of the Courts has announced the following changes to the Family Division marital master assignments:

Marital Master Bruce Dalpra               
Dover Family Division
Brentwood Family Division (2-3 days per month)
 
Marital Master Robert Foley
Rochester Family Division
 
Marital Master Nancy Geiger
Manchester Family Division
 
Marital Master Leonard Green                         
Franklin Family Division
Hooksett Family Division
 
New Marital Master
Manchester Family Division 

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Yesterday Maine voters repealed the state’s same-sex marriage law, six months after the law was passed by the legislature. In doing so, Maine became the thirty first state to oppose same-sex unions in a popular vote. Five states, Iowa, Connecticut, New Hampshire, Massachusetts and Vermont are performing same-sex marriages, with the District of Columbia and New York recognizing the marriages but not performing them. New Jersey and California allow for civil unions.

Question 1, brought forward pursuant to the “people’s veto” process in Maine’s constitution, asked voters “Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?" 53% of voters approved Question 1, about the same margin of victory as California’s Prop 8. Maine’s same-sex marriage law was put on hold after the proponents of Question 1 collected the required signatures to put the question to a popular vote.

What does this mean for Maine residents? Same-sex partners are still vulnerable without the financial and legal protections that a civil union or marriage offers. Maine’s same-sex couples must be very detailed in their estate planning, partnership agreements, and legal status as parents of any children of the relationship. Additionally, Maine residents must carefully consider the ramifications of seeking a civil union or marriage in other states. Although New Hampshire and Massachusetts are just quick drives across the Piscataqua River, entering into a legal relationship that cannot be dissolved in your own state can have very dire consequences.

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