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

On August 21, 2008, the New Hampshire Supreme Court released an opinion on In the Matter of Mary Beth Georgakilas and George Georgakilas holding that an approximately equal parenting schedule still entitles one parent to a “primary physical custody” designation.  

The facts of the case are as follows: the parties divorced in 2006 and entered into a permanent stipulation and a parenting plan regarding their son. The parties share joint decision making responsibility (formerly referred to as joint legal custody). The parties also agreed that their parenting time was for approximately equal time and George would have liberal and generous parenting time whenever he was not flying as a commercial airline pilot. In addition, the plan stipulated that for school purposes only, the child’s legal residence was his mother’s home.

When the divorce was finalized, the certificate of divorce entered by the court stated that Mary Beth and George had joint legal custody but that Mary Beth had physical custody. George moved to modify the certificate to reflect that the parties had joint physical custody. The trial court denied George’s motion because they interpreted the parenting plan to grant primary residential responsibility to Mary Beth. That because the plan did not state that they shared or had joint residential responsibility, the certificate of divorce correctly complied with the parenting plan and would not be revised. George appealed the ruling to the New Hampshire Supreme Court.

The Supreme Court considered the intent of the parties as expressed in their stipulation when deciding this case. Under the plain meaning of the stipulation the parties were to have “equal or approximately equal” residential responsibility of their son. However, the court stated that as a matter of law “approximately equal” is not enough to confer custodial parent status as defined by the statute.

RSA 461-A:20 states that: a “custodial parent” is “a parent with 50% or more of the residential responsibility” and a “non-custodial parent” is “a parent with less than 50% of the residential responsibility”. The court determined that a parent with 49% of the residential responsibility is a non-custodial parent by definition.

Therefore, because Mary Beth and George chose to use “approximately equal” to describe their responsibilities and George’s absences from New Hampshire due to his job, the court concluded that the trial court did not err when it declined to change certificate of divorce. Unless the parties had agreed to have 50% of the residential responsibility pursuant to 461-A:20, only one of them could be the primary residentially responsible parent.

This case boils down to the labels we place upon parenting schedules, whether they be “custody”, “residential responsibility” or “routine schedules.” Often, for a parent the label is very important and that parent wants “sole physical custody” or “joint residential responsibility.” However, what really matters is the schedule itself. Instead of questioning what kind of label has been placed upon the schedule, a parent should focus on whether the schedule allows them ample parenting time and whether the schedule is the most beneficial for their children.

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

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The NH Supreme Court released an opinion on August 21, 2008 In the Matter of Joanne Fontaine and Calvin Dunn holding that a parent who is physically or mentally incapacitated cannot be found to be voluntarily unemployed or underemployed and have income imputed to them for the purposes of child support.

The parties, who never married, are the parents of twin daughters. In 2001, the father suffered from a self-inflicted gunshot wound in the face which caused significant injury and several surgeries over the course of many years. In 2005, the mother filed a parenting and child support petition.

The trial court found that the father was physically incapacitated and was therefore limited as to the income he could earn. However, the court decided that his incapacity was caused by his own voluntary act and therefore ordered him to pay child support in an amount reflective of his past earnings. The father appealed, arguing that the ruling was contrary to the plain language of NH RSA 458-C:2, IV(a)

RSA 458-C:2, IV(a) states:   

The court, in its discretion, may consider as gross income the difference between the amount a parent is earning and the amount a parent has earned in cases where the parent voluntarily becomes unemployed or underemployed, unless the parent is physically or mentally incapacitated.

Usually, this statute is applied in situations where a child support obligor is voluntarily unemployed or has taken a lower paying job for the purposes of lowering his or her child support obligation. For example, the nurse who takes a job delivering pizzas instead of a nursing position is not employing herself consistent with her earning capacity. The court would likely order the nurse to pay child support based upon her former earnings as a nurse, instead of her income delivering pizza.  

Here, the Court held that the plain language of the statute requires the trial court to find that a parent is not incapacitated before reaching the issue of voluntary underemployment. Therefore, the trial court erred in making a finding that the father was incapacitated and then ordering him to pay child support consistent with his earnings prior to his incapacity. Pursuant to the plain language of the statute and this Court’s holding in this case, once a court finds that a party is incapacitated, the analysis stops there and the court cannot find voluntary unemployment or underemployment.

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

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I read an interesting blog post today from Attorney Shannon Cavers of the Houston Texas Divorce & Family Law Attorney Blog. The blog reviews the buyer beware issues of do-it-yourself divorce kits. Attorney Cavers warns: "If you received a medical diagnosis requiring surgical intervention, you would not opt to operate on yourself. The same holds true in law."

Just this morning in the 311^th District Court of Harris County, I personally witnessed a pro se litigant present a final decree of divorce. The source of the litigant’s forms were RapidLaw, an internet site offering divorce, adoption, and bankruptcy services across the U.S. 

The family law judges and court staff in Harris County bend over backwards to assist pro se litigants. However, they may not give legal advice to pro se parties. The forms were not prepared to properly dispense with the parties’ 401-K and retirement benefits. Apparently, the documents were insufficient enough to spur the judge urge the litigant to reconsider presentation of the decree as-is. The Judge asked the pro se party where she received the forms. Her response was Rapid Law. The Judge next asked the party if she paid for the forms, and she answered yes. Finally, the Judge directed the bailiff to photocopy the instructions from RapidLaw – presumably to present the information to the State Bar of Texas.

Whether you are downloading forms from one of the myriad of websites offering divorce documents or buying a kit from Barnes & Noble, the consumer should beware that a generic form usually cannot adequately address your unique situation within the confines of your state's specific rules and laws.

If you cannot afford an attorney, consider the following alternatives: 1) Hire an attorney for unbundled services to review or prepare documents for your case; 2) Utilize the New Hampshire Judicial Branch's self-help center for forms and information; or, 3) Call the New Hampshire Bar Association's law line held on the second Wednesday of each month from 6:00 p.m. to 8:00 p.m. at 800-868-1212.

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The New Hampshire Supreme Court released the opinion for In the Matter of J.B. and J.G. on August 6, 2008 holding that a man, who is not the biological father of a child, has standing to seek parental rights and responsibilities under the New Hampshire statute.

The facts of the case are as follows: The respondent, J.G., gave birth to a child, A.B., in 2001. The petitioner, J.B., was listed as the father on the birth certificate. In addition both parties executed an Affidavit of Paternity at the time of the child’s birth which stated that J.B. was the father. While the parties had never married and did not live together, J.B. had consistently maintained contact with the A.B. and in 2004 J.G. sought and obtained an order of child support against J.B.

After a disagreement about the A.B.’s schooling, J.B. filed a parenting petition in the family division to establish his parental rights and responsibilities. In response, J.G. alleged that J.B. was not the A.B.’s father. The trial court ordered a paternity test which showed that J.B. was not A.B.’s biological father.

Based on the test results J.G. moved to dismiss J.B.’s petition because he was not the biological father and therefore did not have rights under RSA 461-A and that granting him parental rights would violate her constitutional right as a natural parent. The trial court granted her motion to dismiss and then later reversed which prompted J.G. to file this appeal of that decision.

Therefore, the meat of the opinion is the question of whether J.B. may maintain a parenting petition under the parental rights and responsibilities act, when he is neither a stepparent, biological parent, or grandparent to the child? The court examines 461-A:1, IV which states that parental rights and responsibilities are defined as: “all rights and responsibilities parents have concerning their child”. However, it does not specifically define the term “parent”. The court determined that while the DNA testing proves that J.B. is not the biological father that in itself is not fatal to his request for parental rights under the statute so long as he alleges sufficient facts to establish his status as a parent by other means.

The court holds that J.B. meets the threshold to establish himself as a parent for two reasons.

1)      In order to impose an obligation of child support there needs to be an establishment of paternity. Therefore, when J.G. sought and received a child support order she acknowledged that J.B was A.B.’s parent.

2)      Also, according to RSA 5-C:24 paternity may be established when an affidavit is filed with the clerk of the town where the birth occurred. This has a legal effect of establishing paternity without requiring further action.

Finally, the court holds that there is no unconstitutional intrusion of J.G.’s right to raise and care for A.B. because J.B. is also A.B.’s parent and enjoys rights equal to J.G.’s.

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

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In 1993 the New Hampshire legislature enacted a law  requiring divorcing couples with minor children or parties in a parenting case to complete a Child Impact Seminar. This seminar, a four hour course, is called “Children First” and addresses the issues of divorce or separation and how they effect the children involved.

As explained on the NH Family Division website, Parents are required to complete the seminar and show the court a certificate of attendance from the program before a divorce decree is issued. The seminar is offered at multiple locations during weekend and evening hours. Parties who do not attend the seminar may be subject to sanctions by the court.

As found on the “Children First” website detailing the course, the seminar discusses several topics, including:

·       Ways to promote self-esteem in your child during this difficult time

·       What you can do to help your children adjust

·       The impact of violence or chronic conflict upon children

·       Behaviors to avoid

·       Helpful communication styles

·       Effective co-parenting skills

·       How to be a role model

·       Alternative dispute resolution

·       Important points to remember

Blog Credit: Marisa Ulloa, Crusco Law Office Law Clerk

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A “First Appearance” occurs in a New Hampshire Family Division court in a divorce involving children or in a parenting petition case. The judge or marital master will talk about the court process, what to expect, and how the parties might settle their issues without litigation. At this time the court may refer individual cases to mediation. Mediation is an alternative process to litigation where a trained neutral third party helps negotiate and resolve disputed issues.

The court will hand out a First Appearance Highlights form that summarizes all of the information given at the First Appearance.

Below are some of the topics covered in a First Appearance:

· Court Process

· Case Management

· Child Impact Program

· Case Manager

· Guardian ad Litem

· Mediation

· Legal Representation

· Parenting Plans

· Child Support

Blog Credit: Marissa L. Ulloa, Crusco Law Office Law Clerk

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