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. 

What to Bring to a Pretrial Hearing

Before your final trial, the court will conduct a pretrial hearing. Learn here what will happen at the hearing and what needs to be prepared and filed at the hearing. 

Alimony in New Hampshire on You Tube

There's a new batch of You Tube videos about divorce and family law in New Hampshire. Here is the first, a segment about alimony. 

 

A New Hampshire Alimony Primer

I am always surprised when a potential client comes in to meet with me and says “there’s no such thing as alimony in New Hampshire, right?” Be assured, there is alimony in New Hampshire. 

Alimony is governed by RSA 458:19. The law says that the recipient must have the need for alimony, and the payor must have the ability to pay. The alimony award must take into account the lifestyle of the parties during the marriage. In determining the amount of alimony, the court must consider the length of the marriage; the age, health, social or economic status, occupation, amount and sources of income, the property awarded to either party, vocational skills, employability, estate, liabilities, and needs of each of the parties; the opportunity of each for future acquisition of capital assets and income; the fault of either party as defined in RSA 458:16-a, II(l); and the federal tax consequences of the order.

Things to know about alimony:

  • Alimony is gender neutral. Men and women can receive alimony.
  • The court has broad discretion when awarding alimony, and there is no formula in New Hampshire for either an amount or a term.
  • Alimony cannot be waived in a divorce stipulation. The law provides either spouse with the right to petition for alimony within 5 years of the date of the divorce decree, or if alimony has been ordered for a definite time period, within 5 years from the date of the last payment.
  • Alimony is tax deductible to the payor, and is taxable income to the recipient.
  • The primary purpose of alimony is rehabilitative, meaning the support is intended to allow the recipient time to become self-supporting. However, the court has the authority to order alimony for an indefinite period of time where appropriate.
  • Agreements that contain a provision for the payment of alimony often include language about the terminating alimony upon the recipient’s remarriage or cohabitation with a romantic partner. 

Parents May Agree on Enforceable Orders for Payment of College Expenses


Since 2004, the New Hampshire family courts lacked authority to order a parent to pay for college expenses, with the exception of enforcing orders and agreements made prior to 2004. As it was written then, RSA 461-A:14 (V) provided that “no child support order shall require a parent to contribute to an adult child's college expenses or other educational expenses beyond the completion of high school.” The New Hampshire Supreme Court later held in Goulart that the family court did not have subject matter jurisdiction to approve an agreement between to parents for the payment of college expenses.

 

Recent changes in the law now allow the family court to approve an agreement that provides for the payment of educational expenses beyond high school by one or both parents. Beginning on October 1, 2013, RSA 461-A:21 provides the family court with jurisdiction to approve and enforce new agreements for payment of college and educational expenses. Specifically:  

Parents may agree to contribute to their child's college expenses or other educational expenses beyond the completion of high school as part of a stipulated decree, signed by both parents and approved by the court. The agreed-on contribution may be made by one or both parents. The agreement may provide for contributions to an account to save for college, for the use of an asset, or for payment of educational expenses as incurred. Any such agreement shall specify the amount of the contribution, a percentage, or a formula to determine the amount of the contribution.

The new divorce decree court form provides sample language for an agreement in paragraph 4. However, the parenting decree court form has not been updated yet to include similar language, so parties will have to adapt their own if they want to include arrangements for college expenses. Parties must agree on whether the agreement is or is not modifiable based upon a substantial change in circumstances. The court form also requires parties to attend mediation before the court will hear a petition to modify or enforce an agreement on college expenses.  

This change is great news for New Hampshire parents. It allows parents to negotiate agreements based on their mutual shared interest in higher education for their children. Furthermore, parents can rely on their agreement and enforce when necessary. At the same time, parents who cannot agree are on equal footing with married parents and cannot be forced to pay for college for their children.