In Re Serodio and Perkins: You May Enforce a Prenup without a Copy of the Prenup

In the Matter of Cheryl Serodio and Arthur Perkins: Existence of Prenuptial Agreements can be proven without providing the written, executed agreement. The New Hampshire Supreme Court issued its opinion on August 22, 2014.

The Facts

Wife filed for divorce from Husband in 2010.  In 2011, Husband filed a motion to have a prenuptial agreement enforced.  Husband did not present the family court with a copy of the agreement with Wife’s signature, because he alleged that Wife held the sole, signed copy, and she had lost it. Wife filed a motion to dismiss Husband’s claim, arguing that she never signed a prenuptial agreement.  Wife also argued that even if she had signed a prenuptial agreement she did not do so voluntarily because she was coerced.  The trial court granted Wife’s motion to dismiss.  The trial court granted Wife’s motion on two grounds.  First, the Court held that a prenuptial agreement that is not signed by the party charged is unenforceable.  Second, the Court stated that even if the parties had an oral prenuptial agreement, oral prenuptial agreements are unenforceable.

The Appeal

Husband appealed and argued that the trial court did not apply the correct standard of review to Wife’s motion to dismiss. He argued that the real issue that trial court should have considered was whether a properly executed agreement existed before he and Wife were married, not if the properly signed agreement existed now.

 The Holding

The Supreme Court agreed with Husband and reversed the family court’s decision.  The Court held that, while RSA 506:2 requires that any agreement made in consideration of marriage be in writing, the actual writing need not be produced to prove its existence.  A Court can find that a prenuptial agreement existed based on extrinsic evidence, including testimony.

The Takeaway

Make sure you keep your important documents such as prenuptial agreements and estate plans in a safe place. Upload a copy to your icloud, give a copy to several relatives, or keep it in a safety deposit box. The good news is that the Perkins holding will allow you to attempt to enforce the prenup anyway. The bad news is the effect of not being able to produce a copy of the agreement is a very expensive trial. 

 

 

Proposed Changes to a Parent's Right to Counsel in Abuse/Neglect Cases

A few years ago, during the state's fiscal crisis, the legislature did away with the statute requiring that any parent accused of abusing or neglecting their child in a child protection case be appointed an attorney to represent them. I posted here about my view that all parents should be entitled to counsel in abuse neglect proceedings. The issue was argued before the New Hampshire Supreme Court in In Re C.M, where the Court held that parents do not have a constitutional per se right to counsel, though appointment of counsel should be considered on a case by case basis. In July 2013, the legislature reinstated the statutory authority under RSA 169-C:10, II (a) requiring court appointment counsel for indigent parents. 

Now, there are proposed changes to a parent's statutory right to counsel which would require the attorney to withdraw following the dispositional hearing unless there was a court order noting the specific duration and purpose of the continued representation.. The New Hampshire Supreme Court Advisory Committee on Rules has requested comment from the bench, bar, legislature, executive branch or public. The report on the rule changes can be found here

A colleague of mine, Lucinda Hopkins, who is an experienced abuse neglect attorney, wrote to the New Hampshire Supreme Court Advisory a wonderful letter expressing why this rule change is ill advised. She has given me permission to share. I hope you will take a moment to read and perhaps reach out to the committee yourself to express your opinion. For more information on how to contact the committee for comment, see here


Date: 5 September 2014

To: New Hampshire Supreme Court Advisory
Committee on Rules
From: Lucinda Hopkins, Attorney at Law,
NH Bar ID # 1193
Re: Proposed Rule Change deeming parent's legal counsel withdrawn after neglect or abuse dispositional hearing

Dear Committee Members,

Let's start with the premise that a parent in a neglect or abuse matter should have legal representation. In a world where money is no object I doubt most people would object to legal representation for parents in a neglect or abuse proceeding. Thus, encroaching on legal representation for a parent in a neglect or abuse matter stems from financial considerations.

The second premise is the child is the paramount consideration in a neglect or abuse proceeding. I went to law school to advocate on behalf of children. After 30 plus years of practice I have a fair amount of experience which I hope will shed light on how legal counsel for parents not only serve to promote and protect the interests of the parents but also serve to safeguard the interests of the children.

The state's role is driven by policies that may coincide with the a child's interest but may also diverge. Otherwise, we would not need judicial oversight: the child protection system could act administratively. Removing children from their homes and severing family ties, however, carries significant societal implications. The court system serves as the proper forum when the state takes such actions.

Federal laws impose on the state agency the ideal of "permanency" and enforce this ideal by monetary incentives. This agency perspective may override what the child needs. Further, neglect and abuse law--as with all aspects of law--fluctuates. What is laudable today may--often through the efforts of legal advocates--come to be recognized as unacceptable.

A Guardian ad Litem, a party along with the state and parent, is not a legal advocate, most often not trained as a lawyer, and does not have the expertise or the role to legally advocate for a child. Neither the state nor the Guardian ad Litem possess the intimate knowledge and bond with the child that a parent does.

Since neglect or abuse proceedings are confidential, how children fare in the child welfare system remains a mystery. I know from my own experience that "permanency" has not always lived up to its ideal. I have heard from foster parents who adopted children, now adults, who I represented that when the children reached the age of majority sought out their birth parents and went to live with them. I have stayed in touch with children, now adults, who I represented who sought out and maintain contact with their birth parents. I have represented a parent in a neglect matter who lost her child to an adoptive family, where the child was abused and ended back in the system traumatized and psychologically damaged. I have been involved in a matter where the state confidently assured the court that a child was adoptable, a termination of parental rights was granted, and the child remained (at least during the time I was aware) unadopted and without any family whatsoever. I recall another case where the child eloquently expressed wanting both the parent and the foster parent to be part of the child's life.

I present these anecdotes to emphasize that the state and the Guardian ad Litem are not necessarily the ones speaking for what the children want. To the contrary, as they so often state, they are driven by the goals of permanency. I ask the committee to seriously consider how crucial legal representation is for questioning public policy and decisions permanently affecting and altering individual lives.

I would be astounded if the vast majority of neglect or abuse court cases did not involve individuals with minimal financial resources, disabilities, childhood trauma, dysfunctional family backgrounds, and scant education. Post-dispositional hearing is where legal advocacy most helps a parent. Some--but not all--of the critical issues that arise where a parent needs legal expertise and result in reunification or termination of parental rights include:

 

  • Whether the state needs a psychological evaluation and if so how to ensure an evaluation is fair and thorough or lacks validity.
  • How to navigate housing requirements by the state that the parent have a certain amount of bedrooms for the children's return home when the parent does not have custody of the children.
  • Whether a bonding assessment is necessary and if so, how a fair evaluation can best be conducted.
  • Whether a parent aide is accommodating a parent's disability, and if not, what accommodations are needed
  • Whether the siblings' bonds are appropriately considered.
  • Consideration of how best to address siblings' differing wants and needs.
  • How to address domestic violence issues and their effect on permanently severing a parent's rights.
  • How to address substance abuse issues and their effect on permanently severing a parent's rights.
  • How to address medical issues and their effect on permanently severing a parent's rights.
  • Holding the state accountable for implementation of services that are reasonable and appropriate.
  • Countering the presentation of evidence as relevant or material and presenting relevant or material information that may not be disclosed.
  • Understanding how other laws, such as the American with Disabilities Act, guardianship statutes, and domestic relations and immigration laws relate to a neglect or abuse proceeding.
  • How incarceration relates to compliance with neglect or abuse dispositional orders.
  • Whether visitation provisions are unduly restrictive and if so, whether the court or the state has the discretion to decide visitation.
  • Whether a child should have legal counsel.
  • Whether the state has to comply with an order for mediating an alternative long-term living arrangement for the child or an open adoption.
  • Whether an interlocutory appeal or writ of certiorari should be filed to protect a parent's rights before a termination of parental rights is filed.
  • Ensuring that discovery is forthcoming in order to assess a parent's compliance with dispositional orders and to counter disputed representations.
  • Understanding and ensuring compliance with the state's policies for neglect and abuse matters.
  • Investigating and advocating in relation to relative placement particularly when such placement is disputed (either by the agency or the parent).
  • Understanding the inner workings of the Interstate Compact on Placement of Children Act: how to facilitate the administrative process in each state.
  • Understanding how the Indian Child Welfare Act may impact a neglect or abuse proceeding.
  • Analyzing jurisdictional issues relating to a neglect or abuse proceeding with another proceeding relating to jurisdiction of the child.
  • Understanding how the Uniform Child Custody and Jurisdiction Act relates to a neglect or abuse proceeding.
  • Understanding available resources, such as shelters, what shelters are appropriate, and alternatives when factors prevent access.
  • Understanding mental illness, treatment, and medication needs.
  • Understanding substance abuse, treatment, and compliance.
  • Understanding parole or probation conditions in conjunction with dispositional orders.
  • Knowledge and appreciation of a parent's constitutional rights and the ability to argue those rights.

Lest you think I went through some kind of checklist or reviewed laws relating to neglect or abuse proceedings, the following list was written off the top of my head from memory. I have encountered each of these issues. From conversations with fellow practitioners they have grappled with these along with other issues after a dispositional hearing. The list is nowhere complete.

I hope I have conveyed the ultimate difference legal representation can make in a neglect or abuse proceeding post-dispositional. I also hope I have caused you to consider that the state and the Guardian ad Litem are not necessarily always right when it comes to promoting a child's interest. If this were so, we could dispense with court proceedings.

I ask you to consider also that a parent, the one who has been most intimately connected to the child, trusts her or his lawyer. The parent will confide in the lawyer and divulge information to the lawyer that the parent may not convey to the state, the Guardian ad Litem, or the court. The parent often does not appreciate the need for advocacy. The lawyer also will help the parent when that parent is not up to the responsibility of adequately caring for a child by counseling the parent to engage in the process in a way that minimizes the suffering for everyone.

Most importantly, the child did not come into world alone. I have found it best to be humble in expecting prevailing laws to have all the answers. To remove a parent's lawyer from a neglect or abuse proceeding when the lawyer's services are most needed, removes the opportunity to question laws and decisions that need to be challenged. The court needs a full adversarial system to get the full picture. Neither the state nor the Guardian ad Litem compensates for the parent's voice. Parents need legal representation for their voices to be heard. Children, the paramount consideration, need--as much as the voices of the state and Guardian ad Litem--to have the voices of their parents heard.

Sincerely,

Lucinda Hopkins
603.361.8168
www.nhlawhelp.com

Norberg v. Norberg: Alimony Cannot Be Waived By Agreement

When negotiating a settlement, it is important to keep in mind that New Hampshire law does not allow parties to waive future alimony. The 1994 case of Norberg v. Norberg is controlling. It explains that although property division is not modifiable, alimony is an entirely different matter. Even if the parties enter into an agreement that expressly waives their right to seek alimony, the court retains the authority to revise its orders under RSA 458:14

How this factors into settlement negotiations will depend on the facts of your case. First, whether you go to trial or reach a settlement, the court will retain the authority to modify alimony. It should be carefully considered when providing the other party with  a larger division of the assets or taking on additional debt in exchange for a reduced term or amount of alimony. Knowledge of the standards for modification, especially in light of the recent Lyon decision, will also be important to come to a knowing and voluntary settlement. 

In Re Lyon: Extension or Renewal of Alimony to be Made as Justice Requires

On May 30, 2014, the New Hampshire Supreme Court issued an opinion In the Matter of Lyon. This decision clarifies the standard to be applied in requests to extend or renew alimony. 

The Facts

Husband and Wife divorced in May 2007. They entered into a permanent stipulation that was incorporated into their divorce decree that required Husband to pay to Wife $3,000 per month in alimony from January 1, 2007, through June 30, 2007, and $5,000 in monthly alimony from July 1, 2007, through June 30, 2012, “or until the death of either party, whichever first occurs.”

A month before the scheduled termination of the alimony, the Wife petitioned for an additional three years. She alleged that her newly diagnosed attention deficit hyperactivity disorder necessitated an extension of alimony so that she could afford her medication and finish her education. The Husband filed a Motion for Summary Judgment, arguing that the Wife had failed to establish an unanticipated or unforeseeable substantial change in circumstances. The trial court granted the motion and dismissed the petition.  

The Appeal

The Wife appealed and argued that the trial court erred by applying the standards that govern a motion to modify alimony to her petition to extend. Although the standard to modify required a person to prove that a substantial change in circumstances had occurred since the original award that made the amount of alimony either improper or unfair, she argued that she was not required to meet that test. Instead, she said that she was subject to the same standard as an initial award of alimony.

The Holding

The Supreme Court held that when a party seeks to extend or renew, either in modified or unmodified form, “the burden is upon the party in whose favor the order is to run to establish that justice requires a renewal or extension, and if so, what justice requires as to amount[,] . . . in the light of all the circumstances then existing.”

The Takeaway

The standard articulated in the Lyons decision will be easier to meet for alimony recipients as opposed to a substantial change in circumstance test.  This has the potential to create a chilling effect a person’s willingness to agree to pay alimony as one can be less certain of the end date for the payments. Even so, the recipient must still prove that justice requires an extension. While the facts do not require a substantial change in circumstances, it seems likely that the trial court would still examine all of the circumstances to determine why, if short term alimony was awarded, the recipient has not put him or herself into a position to be self-supporting.

 

Unmarried Parents Get Equal Protection for New Hampshire Appeals

Miller v. Todd, a parenting case between two parties who were never married, raised the issue of whether Supreme Court Rule 3 is unconstitutional because it treats married and unmarried parents differently for the purposes of an appeal. At the time, only parents who were married were entitled to a mandatory appeal from an initial determination of parental rights and responsibilities. A mandatory appeal provides that the case “shall be accepted by the supreme court for review on the merits.” Although an appeal from a final divorce decree or final decree on legal separation is a mandatory appeal, an initial determination of parental rights and responsibilities between unmarried parents was not.

In Miller v. Todd the Supreme Court declined to address the issue by declaring it moot. In other words, because the Supreme Court had accepted the father’s discretionary appeal for review, the issue was purely academic because he had not been harmed by having his appeal declined. The Court noted, however, that “any consideration regarding amending Rule 3 should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, thereby providing the public, the bench and the bar an opportunity to offer comments and suggestions.”

On April 4, 2014, the Supreme Court adopted new rules, including an amendment to Supreme Court Rule 3 that now provides a mandatory appeal for “the first final order issued in, or arising out of, a domestic relations matter filed under RSA Title XLIII (RSA chapters 457 to 461-A).” The comments to the new rules identify the change results from the claim raised in Miller v. Todd that “providing for mandatory review of appeals involving married parents but discretionary review of appeals involving non-married parents raises constitutional concerns."

In re Deven O: Father rebutted presumption of abandonment in termination of parental rights

The Supreme Court issued In Re Deven O. on November 7, 2013.

The Facts

Deven was born in June 2006 and lived with his parents until they split up in December 2006. Deven lived with his mother and visited with his father a few days each month until December 2007, when father was arrested and incarcerated for armed robbery. Mother visited father in prison, but Deven visited just once. When father was released to a half-way house in June 2010, father visited with Deven multiple times per week over the next three months. In September 2010, mother told father that she did not want him visiting with Deven until he “straightened out his life.”

In October 2010, mother filed a petition to change Deven’s name. Although she knew father had been released from prison, she listed father’s address as the prison. Father found out about the name change in December 2010 after she posted about it online. Father contacted mother that month to arrange for Christmas gifts. In March 2011, father began to attempt to arrange for parenting time with Deven by calling mother. He also contacted mother’s father for help try to arrange visits. When these efforts failed, he filed a parenting petition in December 2011. Mother countered by filing a petition to terminate father’s parental rights.

Following a trial, the court terminated the father’s parental rights on the grounds of abandonment and failure to support, and made a finding that the termination was in Deven’s best interest. 

The Appeal

The father appealed the trial court’s decision, arguing that the evidence was insufficient to show, beyond a reasonable doubt, that there were grounds to terminate his parental rights. The father also asserted that he had no legal obligation to support the child because he was not listed on the birth certificate and there was no child support order. 

The Holding

The Supreme Court held that the mother failed to sustain her heavy burden and that there was insufficient evidence to support the termination of father’s parental rights. Parental rights are a fundamental liberty interest that cannot be pushed aside because a person has not been a model parent. The Court emphasized that a finding that six months passed without communication between the parent and child is only the first step in the analysis, and the trial court must consider the totality of the circumstances to determine whether the presumption of abandonment has been rebutted. The Supreme Court reminded trial courts to consider whether the parent's conduct "evidences a willingness to take on responsibility and concern for the child's physical and emotional care and well-being." Here, although there was a six month period without contact, the evidence of father’s repeated efforts to make contact with Deven prior to his filing of a parenting petition rebutted the presumption.

The Court also considered the mother’s refusal to allow access to the child. The Court looked to its opinion in In Re Sheena B., where the court determined that there could be no abandonment where the separation between a parent and child was caused solely by the other parent. Thus, the Court held, when considering the father's efforts to see Deven and the mother's refusal to allow the contact, that there was “insufficient evidence to support a finding of a settled purpose to abandon the child.”

The Supreme Court notes that the statute does not define, nor has the Court addressed, what it means to be “financially able” to provide a child with necessary subsistence, education or other care as RSA 170-C:5,II. However, here, the Court did not need to address this issue because it found that the evidence was insufficient to prove, beyond a reasonable doubt, that father was financially able but failed to support Deven.

The Takeaway

Deven O. was third in a string of termination of parental rights cases the New Hampshire Supreme Court issued opinions on in 2013. See In re Sophia-Marie H. & In re Faith T. All were private terminations where a parent or guardian sought termination of the rights of a parent (as opposed to DCYF initiated case). In each case, the Supreme Court emphasized that parental rights are “natural, essential, and inherent” within the meaning of the Constitution of New Hampshire and refused to terminate parental rights. Parental rights cannot be ignored because a person has not been an ideal parent.  These three cases act as a large neon caution sign for trial courts in termination proceedings.

Proving your New Hampshire Petition to Terminate Parental Rights

The New Hampshire Supreme Court has often reiterated that parental rights are “natural, essential, and inherent." Such fundamental liberty interests are not easily swept aside. It is therefore imperative to understand the law and procedures for a termination of parental rights. Check out the latest You Tube video about proving your petition for termination of parental rights.

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Collecting electronic evidence: Is it Legal and/or Admissible?

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.  

           

GAL Investigation: What to Expect

The court has appointed a Guardian ad Litem, now what? While each GAL has their individual approach to an investigation, in general, this You Tube video reviews what you can expect during the investigation. 

 

 

 

When a Parent Moves - Relocation of a Child's Residence

When a parent desires to relocate, whether across the state or across the country, it can raise difficult issues for the children and the parenting schedule. This video highlights the standard for relocation set forth in NH RSA 461-A:12 and the issues encountered in petitioning for or defending against a request to relocate.