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

A principal obligation of parenthood is to claim certain rights and privileges on behalf of one’s child, as well as make decisions the child is considered incompetent to make on their own. Whether a five-year-old should have an elective tonsillectomy, for example, is more a decision for the child’s parent then for the child herself. Likewise, if a doctor engaged in malpractice while caring for one’s child, the parent would bring the claim on behalf of the injured minor.

However, the water becomes murkier when dealing with children’s medical records and a parent’s access to those records. In the Matter of Berg v. Berg, the father demanded access to his children’s medical records, arguing that his legal rights as a parent overrides the children’s right to privacy. The children’s therapists and the guardian ad litem moved to seal the children’s records, which the trial court denied. The case went to the New Hampshire Supreme Court to answer the following questions: 

1.      Do children have a right to privacy for their medical records and communications?

2.      Does the court have the authority to seal the therapy records of the parties’ minor children when one parent demands access to the records for purposes of litigation?

3.      Should the court have the authority to seal the therapy records of minor children when the parents are in conflict about the release and access to such records.

The Supreme Court overruled the trial court, and answered the three questions in the affirmative. The court found that when parents enter into an acrimonious, contested custody battle, the personal interests of the parents could become adverse to the children’s interests.  The court went on:

Where the privilege is claimed on behalf of the parent rather than that of the child, or where the welfare and interest of the minor will not be protected, a parent should not be permitted to either claim the privilege or, for that matter, to waive it.

The court further justified their holding by noting that, under some circumstances, allowing the parent unfettered access to the child’s therapy records may deny the children the right to effective medical care by destroying the “atmosphere of confidence and trust” that is fundamental for effective therapeutic counseling. 

It is also worth noting that while a parent with potentially conflicting motives cannot assert or waive the privilege on behalf of the child, a neutral GAL may do so. Furthermore, a sufficiently mature child can claim the privilege on their own behalf. In determining whether or not to allow a minor to assert the privilege, at the trial judge’s discretion, the court may consider 1) the child’s age, intelligence and maturity, 2) the intensity with which the child advances his interest, and 3) whether their stated preference is based upon improper influences.

For parents wondering, what does this mean to me, the inquiry the court will make when deciding whether a parent may access their children’s medical records will be whether allowing the parent the right to assert or waive the therapist-client privilege on behalf of their child is in that child’s best interests? If allowing such access would interfere with the child’s ability to succeed in meaningful, productive therapy then it would not be in his best interests and the parent may not waive the privilege on their behalf. If, on the other hand, there is no risk that such disclosure would harm the child, the parents retain the right to waive or claim the privilege.

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Unprecedented times call for unprecedented measures. On days where the rest of the New Hampshire government remains open for business, the entire Judicial Branch will close and its employees will take unpaid furlough days in order to accomplish expenditure reduction. The Supreme Court explains these closures in Administrative Orders 2010-03 and 2010-05. The upcoming furlough days, in addition to the three days this spring, are:

• Friday, July 2, 2010
• Friday, August 6, 2010
• Friday, September 3, 2010
• Friday, October 8, 2010
• Friday, November 12, 2010
• Thursday, December 23, 2010

In addition to the furlough days, the courts have reduced their public office hours in order to reduce delays in processing orders and pleadings. In other words, so that it would not continue to take eight weeks or more for some courts to process and mail court orders, the clerk's office will close the front desk or window and turn off the telephone lines to concentrate on processing the orders. The public will not be able to reach the court during these times, though the court will remain open for scheduled hearing and mediations. The family division closures are as follows:

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

A few years ago when the real estate market was booming, divorcing spouses had little issue refinancing with cash out to buy out the other or selling the marital home and dividing a tidy profit. Times have changed, and today, the issue is often what to do with a sinking ship. The Union Leader has published several articles lately about short sales and foreclosures, and the differences between the two.

First, there is a distinction between a homeowner being short and a short sale. A homeowner is short when he owes more on his mortgage to the bank than a sale can procure. A lender must agree to the sale of a property at a price that is less than what is owed. A short sale occurs when the closing of the property has happened.

A foreclosure, on the other hand, is the process where the bank takes your home when you have not been able to keep up with the mortgage payments. Foreclosure has a dramatic and lasting effect on credit scores, dropping scores by as much as 300 points.

If you are in the process of divorce, and your home has little to no equity, there are certain issues that you and your attorney need to keep in mind. If both spouses are borrowers for the mortgage, how will one spouse refinance to remove the other spouses name from the mortgage? Lenders are reasonably cautious about lending over 80% of the value of a home. If the home cannot be refinanced, and will be placed on the market for sale, what will happen if the home is short? Will the spouses need to come up with the money at the time of the sale, or will they negotiate a short sale with the lender? A carefully drafted proposed order or agreement will make sure that you are protected in the event of each possibility.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Tomorrow, the legislature will hold hearings about proposed state budget cuts, including cutting the judicial branch's budget by an additional 4 million dollars. The hearing begins at 11:00 am and the public testimony will begin at 1:00 pm in room 210 of the Legislative Office Building. 

The legislature needs to hear from the families that this will effect, because this is not about the lawyers, judges and court staff but rather the victim of domestic violence who may not be able to get a restraining order because the court is closed, or the child who must wait for a year to be freed for adoption in a termination of parental rights case, or a single parent who must wait for months before obtaining a child support order. If your schedule allows, please attend the hearing tomorrow to voice to the legislature your opposition these detrimental cuts to the judicial branch budget. If you cannot attend, please call your representative.

More information about the proposed budget cuts to the judicial branch:

Broderick: Latest Cuts Are Too Deep, Concord Monitor, 4/9
Gov. Lynch Unveils $85 Million in Cuts Plus Layoffs, Union Leader, 4/8
CJ Broderick: April 8 Court budget letter to Gov. Lynch, 4/8
Senate Passes Bill to Spare Local Courts, Nashua Telegraph, 4/8
Fast facts about the judicial branch, 3/29
Rockingham Prosecutor Reams: 'A disaster for justice', Foster's, 3/20
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

All too commonly, I have had parents ask me to confirm that a mother has automatic custody of a child when parents separate and that the court will side with the mother in a custody battle. This is a misconception that has persisted far past the abolition of the “tender years doctrine.” With a little historical background it is easy to understand where this notion comes from, because for over a century it was the custom in this country. 

The “tender years” doctrine held that while all other factors remained equal, custody was awarded to the mother. This was largely based on the belief that the mother was "the softest and safest nurse of infancy" and that “to grant custody of a child to a father was to hold nature in contempt, and snatch helpless, puling infancy from the bosom of an affectionate mother, and place it in the coarse hands of the father,” as the Alabama Supreme Court notes in Ex parte Devine, quoting the 1830 case Helms v. Franciscus.   

Needless to say, customs and traditions have changed a bit since 1830. Shifting social mores have cast the tender years doctrine aside in favor of more gender neutral considerations. In the middle of the twentieth century states began repealing the tender years doctrine and since that time the prevailing and well established approach is to take into consideration the overall “best interests of the child.” New Hampshire is no exception; New Hampshire Revised Statutes Annotated 461-A:6 governs the determination of parental rights and responsibilities based on what is in the best interests of each child. RSA 461-A:6. The statute is quite lengthy in setting out factors to be considered by the court, though none of them include gender.

Not only have contemporary notions of gender equality been the basis for removing the antiquated “tender years” doctrine, but so has a better understanding of the rights and freedoms granted to us by our Constitution. Some states have concluded that the tender years doctrine violates the Equal Protection Clause of the state constitution because it discriminates on the basis of sex. Such discrimination would also violate the Fourteenth Amendment to the United States Constitution as well (the federal Equal Protection Clause).

This concept is embodied in the New Hampshire law. RSA 461-A:6, III states that when “determining parental rights and responsibility[ies], the court shall not apply a preference for one parent over the other because of the sex of the child [or] the … parent.” This is an explicit rejection of the tender years doctrine. RSA 461-A:6, III. Therefore, in New Hampshire, there is no presumption that the child will be placed with the mother in a domestic relations proceeding affecting parenting rights and responsibilities. 

Crusco Law Office Law Clerk Dan McLaughlin contributed to this post.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Have a legal question that you need answered? Volunteer attorneys are available to answer your legal questions through LawLine, the New Hampshire Bar's free telephone legal advice service. LawLine is held on the SECOND Wednesday of each month from 6:00 p.m. ~ 8:00 p.m. To reach LawLine, call the NH Bar Association (toll free) at 800-868-1212.

Upcoming LawLine Dates:  
Wednesday, April 14, 2010
Wednesday, May 12, 2010
Wednesday, June 9, 2010
Wednesday, July 14, 2010
Wednesday, August 11, 2010
Wednesday, September 8, 2010
Wednesday, October 13, 2010
Wednesday, November 10, 2010
Wednesday, December 8, 2010   
 

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Jim Tenn, the President of the New Hampshire Bar Association sent the following letter to New Hampshire bar members today urging them to take action to help prevent further budget cuts to the judicial branch that would cripple the system. As a family law attorney who assists mothers, fathers and children in court everyday with critical issues such as support, domestic violence, and parenting time, I see no more room for cuts. A parent struggling to make the rent who needs child support will wait months more for that crucial court order.  A victim of domestic violence may not be able to obtain a restraining order because the court will be closed on furloughs. A child who is waiting to be freed for adoption will linger in the foster care system longer. I urge everyone, whether lawyer or layperson, to call your legislator and make your voice heard about these devastating budget cuts.    

Attorney Tenn's letter:

In a real surprise move earlier this week, the House Finance Committee made a series of budget decisions that include a disproportionate cut of $4.7 million in Judicial Branch funding for the fiscal year starting this summer.

The NH House of Representatives is likely to vote on an ADDITIONAL $47 MILLION in cuts to the state budget, including these additional, disabling justice system cuts – probably next Wednesday, March 24, 2010.

Impact: Court officials roughly estimate that this budget impact in one fiscal year, combined with reductions already absorbed by the justice system would require:

• layoffs of 90 employees throughout the courts, or

• 30 furlough days when courts will be closed.

Combined with positions already left vacant, this would deplete the judicial branch workforce of 600 by 23 percent.
 

The NHBA Board of Governors urges Bar members to

 CALL YOUR LEGISLATORS NOW and PROTEST THESE DAMAGING CUTS.

 

CRITICAL POINTS TO ADDRESS:

These cuts disproportionately impact the justice system.
The Judicial Branch is the smallest of the three branches; it accounts for 1.5 percent of the state budget, and yet is being targeted for 10 percent of these cuts. 

The justice system is fundamental to the operation of our government.
Because it is VITAL to our society, the system is MANDATED in our state Constitution. The justice system, widely dispersed so as to be ACCESSIBLE to all citizens in their communities, is part of the day-to-day working of our government.  These cuts may deny access to: families seeking protection from violence; law enforcement keeping citizens safe from wrongdoers; and businesses throughout our state depending on orderly dispute resolution.

Further cuts will be devastating.
The justice system will soon be feeling the effects of the $3.1 million in cost reductions mandated last fall, resulting in unpaid employee furloughs and the closing of courts for 19 days through this year and the next.

ADDED ON TOP OF THAT WOULD BE $4.7 million in cuts.  Massive layoffs will be required in the smallest branch of government.  The system will suffer permanent harm. 

Further court closure days will cause insurmountable backlogs, further inefficiencies, and real damage to the lives of people who depend on the justice system for timely resolutions.

Chief Justice Broderick’s March 8 letter to the Governor, written before this latest legislative action, details the current state of the courts.  It contains useful factual information. http://www.courts.state.nh.us/budget/fy-10-11-budget/letterfromcj-03-08-2010.pdf

WHAT YOU CAN DO

Attorneys must act now to contact members of the House; these citizen-legislators need to hear from you; they need to know that these cuts willbreak down the justice system.

And they need to hear from younow.  The full House is expected to act on the Finance Committee report containing these cuts NEXT WEEK. Because time is of the essence we urge you to CALL your New Hampshire House Representatives before Wednesday the 24^th. 

A phone call is PERSONAL and will enable you to communicate your concerns.

While legislators are faced with tough decisions, we must act now to preserve New Hampshire’s justice system. 

Visit the House of Representatives Web page at www.gencourt.state.nh.us, select your district, get your representative’s phone number, and make the call today: http://www.gencourt.state.nh.us/house/members/wml.aspx

Thank you!
Jim Tenn, NHBA President

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The New Hampshire Supreme Court recently held in the case of Michelle Hemenway v. Edmund J. Hemenway, Jr. that a New Hampshire court may issue protective orders against an out of state defendant, even when the defendant committed acts from another state. This case affirms the right of the plaintiff to seek domestic violence protective orders in New Hampshire where he or she resides or is sheltered.

As background to the case, the parties resided in Florida until 2008 when Michelle moved to NH with the parties children. Michelle filed for, and subsequently received a restraining order in the Derry Family Division, pursuant to RSA 173-B. She alleged that in 2008 Edmund became verbally abusive and threatened her and her children both in Massachusetts and in Florida.

Edmund filed a special appearance contesting the jurisdiction of the family division to enter final protective orders against him. He argued on appeal that the court lacked both subject matter and personal jurisdiction over him because the underlying acts occurred in Florida and Massachusetts, not New Hampshire.

Subject Matter Jurisdiction

The court ruled that subject matter jurisdiction had been statutorily granted to the family division and that there was no territorial limitation in the statute (as there is with criminal threatening, etc in the criminal code) that would have prevented Michelle from bringing the petition where she either permanently or temporarily resides. “The fundamental logic of that statutory provision is unassailable: a victim of domestic abuse who seeks a place of refuge must be able to engage the protections of the law of the jurisdiction in which she is sheltered.”

Personal Jurisdiction

The court found that the only acts Michelle relied on in her petition occurred outside of New Hampshire. Therefore, Michelle had “failed to demonstrate facts sufficient to establish personal jurisdiction over the defendant.” However, the court held that since the protective order did not impose affirmative obligations on Edmund, instead only issuing orders protecting Michelle, personal jurisdiction is not required.  

The court recognized the principles of two landmark United States Supreme Court cases to explain the relationship between the courts and the residents of their states. Both Pennoyer v. Neff and Williams v. North Carolina provide that even if an offending party does not reside in the victim’s state, that state’s courts are not prevented from issuing orders relative to the status (whether marital status as in the above two cases or safety status as in this case) of its inhabitants. 

To require such a ruling would leave a domestic violence petitioner with two untenable choices: 1) return to the state where the abuse occurred; or, 2) “wait for the abuser to follow the victim to New Hampshire and, in the event of a new incident of abuse, seek an order from a New Hampshire court.” These two choices are clearly at odds with the purpose of RSA 173-B and New Hampshire’s interest in protecting the victims of domestic violence.

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

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In the last session of 2009, the New Hampshire Supreme Court issued its opinion In the Matter of Michele Sukerman and William Sukerman, in which the court held that accidental disability pension benefits are subject to equitable distribution in divorce proceedings. Court litigants should keep in mind that this case does not govern how accidental disability benefits or other marital assets will be divided, but rather holds that any property not excluded by law is thrown into “the pot.” How it will be divided is subject to the specific facts and circumstances of each case, and the factors set forth in RSA 458:16-a

William Sukerman was an employee at the Massachusetts Port Authority (MassPort) Fire and Rescue in Boston from 1991 until a heart attack forced him into retirement in 2008. Upon retirement William began receiving a pension under the Massachusetts retirement system which consisted of an ordinary pension benefit, an annuity and an accidental disability pension benefit. The final divorce decree of the Derry Family Division awarded Michele one-half of the William’s entire “pension plan which accrued between the date of the marriage . . . and the date of the filing of the petition for divorce.”

William argued on appeal that the accidental disability benefit should not have been included in the marital property distribution because it was compensation for lost earning capacity as well as pain and suffering. The court disagreed, and took a “mechanistic approach,” under which all property acquired during the marriage “without regard to title, or to when or how acquired is deemed to be marital property unless it is specifically excepted by statute.” There is no such exception for accidental disability pension benefits in RSA 458:16-a.

The court concluded that this so-called mechanistic approach “best comports with New Hampshire’s equitable distribution law,” under RSA 458:16-a, which provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title is held in the name of either or both parties” is subject to equitable distribution. Consequently, the Sukerman case stands for the proposition that so long as there is no specific statutory authority excepting accidental disability benefits from property settlement, such benefits, being acquired during marriage, are marital property and therefore subject to distribution.

Crusco Law Office, PLLC law clerk Dan McLaughlin contributed to this post.

• Email This
• Print
• Comments
• Trackbacks
• Share Link