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

Same-sex marriage and divorce needs a larger solution then the state’s rights approach. Texas Governor Rick Perry, a potential presidential candidate, recently discussed his views on New York’s legalization of same-sex marriage. Perry said: “You know what? That’s New York, and that’s their business, and that’s fine with me. Our federal government is engaged with far too many things they shouldn't be involved with at all." The problem with that view is that once it’s one state’s business, it’s every state’s business.

Historically, marriage has largely been left to the authority of the states. States issue marriage licenses, set the age of consent and prohibit certain family relations from entering into marriages. States also make laws regarding the dissolution of marriages, alimony, child support, property division and custody. But the federal government has its say as well. Congress enacted the Defense of Marriage Act, defining marriage for federal purposes as the union of one man and one woman. More importantly, DOMA specifically relieves states of the obligation to treat a same-sex marriage from another state as a marriage under its own laws. And that’s the trouble.

In today’s mobile society, where families easily move across state boundaries for jobs, family, retirement, and education, the failure of another state to recognize a same-sex marriage leaves families in legal limbo and without access to justice if divorce becomes necessary. A spouse, with no other means of support, may be prevented from seeking alimony. A child may be barred from seeing her non-biological parent, to her great detriment. A couple may be forced to remain legally bound to one another, long after they have separated, because their home state refuses to recognize the marriage and allow access to the family court system.

These situations and the devastating effects it can have on a family, demand remedy. I make the case for justice, setting aside the legal arguments of both sides of the same-sex marriage debate, from equal protection to the 10^th amendment to the full faith and credit clause. The federal government must mandate that same-sex families may dissolve their relationships and settle custody disputes wherever they may move in the country. Until the federal government acts, New Hampshire, which requires the person seeking the divorce to have resided in the jurisdiction for one year, must allow same-sex families who have moved from New Hampshire to access the court system to dissolve marriages entered into in New Hampshire.

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Republished here, my opinion from the recent Bar News regarding the appointment of counsel for parents in abuse and neglect proceedings:

Few rights can be argued to be more fundamental then the right to raise and care for one’s children. In recognition of that right, New Hampshire has long appointed counsel to represent indigent parents in abuse and neglect proceedings who face the removal of their children from their care by the State. The NH Supreme Court recognized in Shelby R. that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships."

Despite the constitutional protections afforded to parents, recent passage of HB2 [the budget "trailer bill"] and the issuance of Circuit Court Administrative Order 2011-01 deprives indigent parents accused of abuse and neglect of the statutory right to be represented by an attorney at all stages of the proceedings. The Administrative Order prohibits any new appointments of counsel after July 1, 2011, and orders the automatic withdrawal of counsel after the issuance of dispositional orders for attorneys appointed prior to July 1, 2011. However, legislative enactments cannot override a constitutional protection and the Courts have an affirmative duty to invalidate a statute that violates a person’s constitutional rights.

Fundamental fairness requires government conduct to conform to the community’s sense of justice, decency and fair play. Without the protections of counsel, a parent facing allegations under the Child Protection Act stands little chance of defending himself against the state. As the U.S. Supreme Court wrote in Gideon v. Wainwright, "even an intelligent and educated layman has small and sometimes no skill in the science of law." Oftentimes the parents involved in abuse and neglect cases are uneducated, unsophisticated, frightened and do not have the wherewithal to understand the process. They have no skills in asking questions, raising objections, or admitting evidence. They lack knowledge of the law and are at an extreme disadvantage when questions of law arise.

On the other hand, the State, in presenting its case, has the ability, funds and know-how to subpoena witnesses, hire expert witnesses, obtain medical or psychological evaluations of the children or the parents, and investigate the claims and allegations involved in a petition. The State employs attorneys to put on the State’s case and act on its behalf. The parent’s fundamental, natural and essential rights require that counsel be appointed to assist a parent in mounting their defense and protecting their rights.

Additionally, abuse and neglect proceedings can have the most serious of consequences to parental rights: the termination of parental rights. As the NH Supreme Court wrote in State v. Robert H., "the loss of one’s children can be viewed as a sanction more severe than imprisonment." The abuse and neglect proceedings become the grounds upon which the state relies on in a termination of parental rights proceeding. The finding of abuse or neglect, the parent’s progress throughout the case, the status of the parent’s compliance with the dispositional orders, and the alleged failure of a parent to correct the conditions that led to the finding of neglect are the framework of the state’s TPR case. Without counsel guiding and protecting the parent in the underlying abuse and neglect proceeding, appointing counsel in the TPR is too little too late to safeguard the parent’s constitutional rights.

In contrast to other state cuts that have drawn the attention of the media and the public, the prohibition on appointed abuse and neglect counsel for indigent parents has captured little notice. Few of us can imagine the state coming into our home and removing our children, and not having the financial ability to protect our rights and family and advocate for the return of our children. The elimination of parent attorneys is shameful act by a legislature willing to sacrifice justice for the bottom line. As this opinion goes to publication, abuse and neglect parent attorneys across the state are mounting a challenge, and the support of the Bar and the public is crucial to its success. In the meantime, parents will have to navigate the abuse and neglect system without advice of counsel and try their best to advocate for themselves and their children.

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Grandparent’s rights vary from state to state. In New Hampshire, grandparent’s visitation rights are specifically designated by statute. However, obtaining visitation is not as easy as filing a petition and being granted time with one’s grandchildren. In order to comply with the U.S. Supreme Court’s holding in Troxel v. Granville, which struck down a breathtakingly broad Washington state statute that allowed any third party to sue for visitation over the objection of the parents and the outcome determined solely by the judge’s estimation of the child’s best interests, New Hampshire restricts the situations in which a grandparent can petition to establish visitation.

In order to pursue grandparent visitation, there must be an absence of a nuclear family, “whether divorce, death, relinquishment or termination of parental rights, or other cause.” Prior to the recent New Hampshire Supreme Court opinion In Re Athena D., it was unsettled whether a new nuclear family, brought about by the termination of parental rights and the adoption of the child, would cut off the rights of natural grandparents to visitation. The take away from Athena D. is that “petitions for grandparent visitation in the case of termination of parental rights are to be treated in the same manner as in the case of the death of a parent, stepparent adoption, or unwed parents.”

The Athena D. holding is especially important for the protection of society’s most vulnerable children. Children who are the subject of cases brought under the Child Protection Act, and subsequently state-action termination proceedings, may have indispensable bonds with their natural grandparents that must be preserved. While the children may need to be protected from the parents, and adopted into a new family, a child’s best interest may demand continued contact with the natural grandparents over the objection of the adoptive parents. This holding allows for that, so long as the grandparents meet the other requirements of a petition for grandparent’s visitation rights as set forth in RSA 461-A:13.

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I am pleased to announce that I have been accepted as a member of the Collaborative Law Alliance of New Hampshire. Collaborative practice is an alternative to the traditional, adversarial family law litigation process. Lawyers and clients agree from the beginning to keep the case out of court and settle it through a series of 4-way meetings. Instead of negotiating under the threat of court or on the eve of trial, lawyers and parties are freed from those constraints and are able to focus on alternative and creative solutions to meet each parties needs.

CLANH makes the point that the collaborative process benefits a client by:

• Avoiding the expensive and lengthy court and litigation process.
• Retaining a relationship of mutual respect while moving apart with dignity.
• Reaching a settlement that both parties are comfortable with.

If the process breaks down, and the parties are not able to resolve the case, each lawyer is disqualified from representing their client in court. Each party must find a new attorney to litigate the case. This is an important aspect of the collaborative process because it gives incentive to remain committed to the collaborative process.

Both parties must have collaborative trained lawyers. Talk to your spouse or partner about collaborative practice, and have them research "collaborative law" or "collaborative practice." Download for them the free Collaborative Divorce Knowledge Kit from the International Academy of Collaborative Professionals. Ask them to speak to a lawyer trained in collaborative practice (a list of New Hampshire lawyers can be found here).

If you are interested in more information about the collaborative process, please contact my office at 603-627-3668 or through the contact form on this blog.

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