Retroactive Modification of Child Support in New Hampshire

Over the years, I have had several clients come to me with issues regarding the retroactivity of a child support modification. These situations have included circumstances such as informal modifications of child support which were never filed with the court to demands from the other parent to make a modification retroactive to the date of a substantial change, such as a child turning 18 or graduating from high school, without any pending petition to modify. There is an easy answer, which often results in a difficult situation.

A child support order cannot be modified prior to the date that the party receives notice of the petition for modification. RSA 458-C:7 defines “notice” as either service as specified in the civil account or acceptance of a copy of the petition by certified mail receipt. The trial court may, however, order modification prospectively from the date of service forward. If it takes months, or even a year, to conduct a hearing and issue an order, either party runs the risk of the modification dating back to the time of service.

There is however a small narrow exception contained in the case law. In the case of In Re Nicholson the New Hampshire Supreme Court held that due to specific language in the parties divorce decree and uniform support order the child support could be modified retroactively to the time of the substantial change in circumstances (in this case a child becoming ineligible). In this case, the child support order had specific language as follows:

Unless the court ... specifies differently, the amount of a child support obligation stated in the order for support shall remain as stated in the order until all dependent children for whom support is provided in the order shall terminate their high school education or reach the age of 18 years, whichever is later, or become married, or become a member of the armed forces, at which time the child support obligation terminates without further legal action. This amount shall remain as specified unless a legal order expressly allocates the payments on a per child basis.

This language is no longer in the standard uniform support order. Now, the SO -3C reads:

The effective date of any modification shall be no earlier than the date of notice to the other party. “Notice” means either of the following: 1) service as specified in civil actions or 2) the respondent’s acceptance of a copy of the petition, as long as the petition is filed no later than 30 days following the respondent’s acceptance.

Notwithstanding the narrow exception contained in Nicholson, it is very important that any agreements to modify child support be signed and filed with the court for approval. It is likewise critical that when a substantial change occurs, the petition must be filed immediately to preserve the ability to modify child support. Without taking these steps, a party could end up owing a substantial debt in child support when the other party seeks enforcement of the order rather than the informal agreement or the obligor has sat on their right to modify and must continue to pay at the higher rate of support. 
 

Courthouse Divorce File: What's Private?

“All human beings have three lives: public, private, and secret.” 
― Gabriel Garcí­a Márquez, Gabriel García Márquez: a Life

The public thirsts for gossip, apparent in websites like TMZ and Perz Hilton. Celebrity splits are big news such as Tom Cruise and Katie Holmes to Mariah Carey and Nick Cannon. While most of us do not enjoy celebrity status, the small town rumor mill can be just as virulent as celebrity gossip. Divorce litigants should beware the rules regarding public access to their divorce file. Anyone can head down to the local courthouse and view all the happenings in the neighbor's divorce or co-worker's custody battle.  

The prominent case on this issue is the Petition of Keene Sentinel issued by the New Hampshire Supreme Court on August 27, 1992. During the 1990 political campaign for New Hampshire’s Second congressional seat, The Keene Sentinel sought to gain access to one of the incumbent’s, Charles Douglas III’s divorce records. The clerk granted the Keene Sentinel only some of the divorce records, citing privacy concerns. The Keene Sentinel brought suit and Charles Douglas III sought to intervene, asking the Superior Court to dismiss the suit. The Superior Court ultimately denied the Keene Sentinel’s request.

The Keene Sentinel appealed, arguing that “disclosure should have been permitted pursuant to RSA chapter 91-A, the Right to Know Law.” The Supreme Court held that a party in a divorce proceeding cannot have the records sealed simply for the sake of general privacy concerns.  The Court held that “[b]efore a document is ordered sealed, the trial judge must determine that no reasonable alternative to nondisclosure exists.” If a trial judge does make such a determination, it must use the least restrictive means available to secure the parties’ privacy rights.

This generally requires that the orders, pleadings and other materials in the file are open to the public for viewing. An exception is a financial affidavit. A party is required by the court to complete and submit a sworn financial affidavit, detailing all income, property and debts. This document usually contains very personal information such as social security numbers, bank information and paystubs. Family Division Rule 2.16 and RSA 458:15-b requires financial affidavits to be confidential for non-parties. In practice, this means that the court file contains an envelope which the clerk will remove if you are not a party to the case. Financial affidavits filed in divorce, legal separation, annulment, or parenting petition cases shall be confidential to non-parties. Access to such financial affidavits shall be pursuant to Family Division Rule 1.30. However, a person not otherwise entitled to access may file a motion under Family Division Rule 1.30 to gain access to the financial affidavit. 

The Associated Press v. NH gives some context to the rule regarding financial affidavit confidentiality. The New Hampshire Supreme Court issued its holding in this case on December 30, 2005.   After RSA 458:15-b took effect on August 10, 2004, which, inter alia, made financial affidavits in divorce proceedings only accessible to parties to the proceeding and their attorneys of record, the Associated Press filed suit claiming the law was unconstitutional. The Associated Press argued that the law “violated the public’s right of access to court records” under the State Constitution, and that it was an impermissible restraint on freedom of speech per the State and Federal Constitutions.  The trial court determined that the law was not unconstitutional, and dismissed The Associated Press’ suit. The Associated Press appealed the trial court decision, arguing that the trial court erred in finding that the law was constitutional.

 The Supreme Court agreed with the trial court, and finding RSA 458:15-b constitutional. The Court ruled that although the public has a right to access government documents, including court documents, the right is not unlimited.  It opined that "the right of access may be overcome when a sufficiently compelling interest for nondisclosure is identified,” which included the compelling interest to prevent exposing divorce litigants to identify theft and fraud. The Court’s ruling was narrow, however, and only applied to keeping financial affidavits sealed. 

In general, the Court may upon request consider keeping confidential case-related materials for collateral cases that are already confidential pursuant to New Hampshire law. These include termination of parental rights, adoption, juvenile criminal records and abuse/neglect cases and DCYF records.  

 

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.  

           

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. 

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. 

Why You Need a Coach in your Collaborative Divorce

New Hampshire collaborative practice employs an interdisciplinary model, which is fancy for saying that the professional team includes attorneys, a coach and a financial neutral. When the topic of hiring a coach comes up, I sometimes receive this feedback:

  • Why do we need a coach?
  • I already have a therapist, isn't that the same thing?
  • It's another expense in the process. 
  • Let's see how it goes without one and we can always hire one later. 

I intended to write a thorough and thoughful post about the need for a coach, and then found this article Do You Really Need a Divorce Coach in the Collaborative Process? by Helene Taylor. I really can't say it better myself, and it answers all the frequently asked questions. It's a must read if you are considering a collaborative divorce. I especially love her explanation of the difference between a therapist and a divorce coach:

A therapist is someone you bring your luggage to and she helps you open it up and decipher the contents; a divorce coach is someone you bring your luggage to and, without opening it, she helps you carry it across the street.

From my attorney perspective, a coach helps me do my job better and reach the end result quicker. The coach, who is far better trained in the emotional aspects of a divorce than I am, can facilitate the emotional discussions and keep lines of communication between the parties open so that the legal discussions can be more productive.

For more information about collaborative divorce, check out the information video from the International Academy of Collaborative Professionals. You can also download a free Collaborative Divorce Knowledge Kit

Unbundled Legal Services

Unbundled legal services, also known as limited scope representation, allow you to hire a lawyer to do certain parts of your case, instead of the traditional soup to nuts representation. Some clients choose unbundled services because they cannot afford full representation, and some advice is better than no advice. Other clients feel capable of handling certain parts of the case, but need assistance with other portions.

Unbundled services can be customized to fit your needs, and can include

  • Representation at a specific hearing, such as a temporary hearing
  • Draft proposed orders or pleadings
  • Attending mediation
  • Assisting with discovery preparations
  • Consulting during your case to provide assistance and advice  

Payment arrangements for unbundled services can be tailored to the specific service. For example, paying a small retainer for ongoing advice, or paying for an hour at the end of a meeting to prepare documents.

Lawyers providing unbundled services will ask the client to sign a consent form that clearly spells out what services are, and are not, going to be provided, in addition to a fee agreement. 

New Family Division Judge and Marital Master Assignments

The following are the new judge and marital master assignments for family cases in the Circuit and Superior Court for January 2013 through March 2013:

 

1st Circuit


Colebrook

Hon. Paul D. Desjardins
(most of these hearings are held in Lancaster)


Berlin

To Be Determined 


Lancaster

Hon. J. Peter Cyr

2nd Circuit


Lebanon

Hon. Lawrence A. Macleod, Jr.


Littleton

Hon. J. Peter Cyr


Haverhill

Hon. J. Peter Cyr


Plymouth

Hon. Thomas A. Rappa

3rd Circuit


Conway

Hon. Pamela D. Albee


Ossipee

Hon. James R. Patten

4th Circuit


Laconia

Michael H. Garner, Marital Master

5th Circuit


Claremont

Hon. John J. Yazinski


Newport

Hon. Bruce A. Cardello

6th Circuit


Concord          

Nancy J. Geiger, Marital Master 
Henrietta W. Luneau, Marital Master
Michael H. Garner, Marital Master


Franklin

Nancy J. Geiger, Marital Master
Hon. Edward M. Gordon


Hillsborough

Hon. Edward B. Tenney


Hooksett

Hon. Paul S. Moore

7th Circuit


Dover

Robert J. Foley, Marital Master


Rochester

Hon. Susan W. Ashley
Robert J. Foley, Marital Master 


Cheshire Superior

Hon. John Kissinger 

9th Circuit


Manchester

Hon. Susan B. Carbon
Thomas G. Cooper, Marital Master
Hon. Sharon DeVries 
Bruce F. DalPra, Marital Master

Nashua

Hon. Julie A. Introcaso
Hon. Michael J. Ryan


Merrimack

Bruce F. DalPra, Marital Master
Hon. Clifford R. Kinghorn, Jr. 


Goffstown

Hon. Paul S. Moore

10th Circuit


Brentwood

Henrietta W. Luneau, Marital Master
Hon. David G. LeFrancois


Salem

Thomas G. Cooper, Marital Master


Derry

Hon. Lucinda V. Sadler


Portsmouth

Hon. Jennifer A. Lemire

 

Vote No on Question 2: Don't politicize our courts

Voters will be asked on Nov. 6 to approve an amendment to Part 2, Art. 73-a of the New Hampshire Constitution. If the amendment passes, the legislature would be given final say over how the New Hampshire Judicial Branch, an independent branch of government, operates. I oppose the amendment because it allows for a legislative takeover of the courts that violates separation of powers.

Allowing the legislature to dictate court procedures will politicize the courts. Court rules would be subject to change whenever the legislature meets and according to the influence of the political party in control, creating unpredictable and inconsistent procedures and outcomes.

The Nashua Telegraph opined on October 2, 2012 that “the proposed amendment makes a mockery of the system of checks and balances crucial to American government” Instead of an independent judiciary, “the Legislature would be the boss of the New Hampshire’s court system.”

I am voting no on question 2, and I hope that you will join me.

Consultation Policy

I provide free consultations to prospective clients who are interested in retaining an attorney for their legal matters. The consultation is a good opportunity to get to know each other, and see if we are a good fit. After hearing about your case, I will be able to provide you with information, feedback and likely outcomes. I can explain the fee structure and the potential costs of litigation, and answer questions that you may have. A consultation is not an appointment where I will provide court documents for your use or prepare you for a hearing.

Potential clients often ask if I will provide a phone consultation, and the answer is generally no. I like to meet with potential clients face to face, and it is often important to review paperwork such as court orders, a lease, or financial records. That is a difficult task over the phone. I will consider phone consultations for clients who live outside of the state but are looking for New Hampshire counsel on a case by case basis.

Although the consultation is free, I require a credit card to secure your appointment. Unfortunately, it has been my experience that sometimes people who schedule appointments do not show up. Therefore, my policy is to have a credit card on file at the time the appointment is scheduled, and in the event that you do not show up for the appointment, a $195 missed appointment fee will be charged to your credit card. There is a 24 hour cancellation policy; however, in the event of an emergency such as illness, inclement weather, or car trouble, exceptions will be made to the 24 hour rule so long as you call prior to the appointment time.

Please feel free to call the office at 603-627-3668 to schedule an appointment.  

New Hampshire same-sex divorce: What you need to know

Please check out my recent You Tube video on the topic of same-sex divorce in New Hampshire. We'll review length of marriage considerations, parenting rights for same-sex couples, and special property distribution issues in divorces for same-sex partners.

The temporary hearing: A critical phase of your case

Continuing the series of You Tube videos, this edition discusses a very important hearing in your case: the temporary hearing. Watch to find out why, and what you need to do to be prepared and help achieve a good result.

Here are the forms you need for a divorce temporary hearing with children:

Thanks to Jeremy Collins at Ellipsis Entertainment, you were great to work with on this series!

Tips for Completing your New Hampshire Family Division Financial Affidavit

This blog has been a great way to reach out to people who need information about divorce, parenting and family law, and it has been a great experience hearing feedback from colleagues and watching the number of readers grow throughout the years. I hadn't considered branching out into You Tube until I read a blog post on Kevin O'Keefe's Real Lawyers Have Blogs called Are Law Firms Underutilizing You Tube? The idea of a audio/visual piece to this blog appealed to me. Much like I like to hear the audio tour in an art museum instead of reading all the tags next to a painting because it is easier to absorb the information, I think that a video can help convey information in a good way.  

So without further ado, the following is my first You Tube video on the topic of completing your financial affidavit.

Click here for the Financial Affidavit form for theNew Hampshire Circuit Court, Family Division.

Thank you to Jeremy Collins at Ellipsis Entertainment for being easy to work with and producing a great product.

Second parent adoption for same-sex spouses: Is it necessary?

Second parent adoption, also referred to as co-parent adoption or stepparent adoption, is the process where two parents, one who is a legal parent and one who is a legal stranger, create a permanent and legal relationship between the child and both parents.  The American Academy of Pediatrics, which supports same-sex second parent adoption, and explains these reasons for insuring both parents have legal rights:

Children deserve to know that their relationships with both of their parents are stable and legally recognized. This applies to all children, whether their parents are of the same or opposite sex.

 

When two adults participate in parenting a child, they and the child deserve the serenity that comes with legal recognition.

 

Denying legal parent status through adoption to co-parents or second parents prevents these children from enjoying the psychologic and legal security that comes from having two willing, capable, and loving parents.

New Hampshire has allowed second parent adoption for same-sex couples who are married since 2007, where previously only opposite sex spouses or single persons could adopt. This change came about with the recognition in New Hampshire of civil unions in January 2008, and eventually same-sex marriage in January 2010. It is important to remember that in New Hampshire the parents must be married. Some hospitals in New Hampshire will list a married same-sex couple as co-parents on the birth certificate of their child.

 

However, even with both parents listed on the birth certificate, it is still important to seek an adoption by the non-bio parent. Marriage entitles a non-biological parent to a presumption of parenthood, but that presumption is rebuttable. In other words, parenthood could be contested, and without solidifying parental rights and responsibilities with an adoption, the non-biological parent is vulnerable. Second, most other states do not recognize same-sex marriage, and legal parenthood gained by marriage for a same-sex partner may not be acknowledged in a different state. Adoption creates a binding court decree that is recognized by all states, whether passing through or moving to.

 

The second parent adoption will protect the child's right to inheritance, health insurance, social security benefits and child support. The adoptive parent will have enforceable rights of custody and visitation, and parental rights and responsibilities in the event the biological parent passes away, regardless of the jurisdiction the family resides in. Additionally, when an emergency medical decision needs to be made for the child, the adoptive parent will have the ability to make the decision.

 

Other Resources:

 

Best Interest Considerations for a Parenting Schedule

New Hampshire’s “best interests” statute lists out several factors that the court should use to determine best interests. Many of the factors are little wordy, and as a whole the statute misses some of the very basic issues that must be considered when creating a parenting plan that is in the child’s best interest.

When I had the chance to reread a wonderful guide from the Massachusetts Association of Family and Conciliation Courts titled Planning for Shared Parenting: A Guide for Parents Living Apart, I loved the way that the factors were presented so simply. If I had the opportunity to rewrite RSA 461-A:6, I would use the AFCC's language:

  • The age, temperament and social adjustment of each child.
  • Any special needs of each child (medical, developmental, educational, emotional or social).
  • The quality of relationships between siblings and any other extended family members.
  • Each child’s daily schedule.
  • Caregiving responsibilities of each parent before the separation.
  • How you would like to share responsibilities both now and in the future.
  • Availability of each parent as a caregiver.
  • Potential flexibility of each parent’s work schedule.
  • Distance between each parent’s home, workplace and children’s schools.
  • The ability of parents to communicate and cooperate with each other.
  • The ability and willingness of each parent to learn basic caregiving skills such as feeding, changing and bathing a young child; preparing a child for daycare or school; taking responsibility for helping with homework; assessing and attending to each child’s special emotional and social needs.

Here are two good examples of why the basics can be so important in the determination of best interests:

1)      Both parents are good caregivers and share responsibilities for the children both before the separation and after. However, the parents live forty-five minutes from each other. Although each parent is able to adequately provide and care for the children, the distance that they live from each other prevents implementing a shared schedule during the school year. It usually is not feasible to have a parent making a forty-five minute commute with the children to school.

2)      Parents are both good parents and caregivers, each dedicated to the children and able to appropriately care for them. One parent works from 8:00 am to 4:00 pm Monday through Friday, with flexibility to work from home if the children are sick or have the day off from school. The other parent works second shift, from 2:00 pm to 10:00 pm with little flexibility to take time off from work or be available for the children during work hours. The children’s best interests require that they be with the parent who is available after school and in the evenings to prepare dinner, help with homework, and oversee baths and bedtime.

Neither of these scenarios endorses the parenting of one parent over the other or concludes that one parent is unfit; rather, it is a finding that one parent’s work schedule makes them more available or that the distance between the two homes is too much to allow for a shared schedule.

Of course, under RSA 461-A:6 courts have the ability to consider any other factor not listed that the court finds relevant, but I think that these factors from the AFCC provide a plainer picture of the considerations that a GAL might use to make recommendations, or the court might use in crafting a parenting plan

Raising Hope Custody Drama: Real or Not Real?

One of my favorite blogs is Law and the Multiverse. The blog’s premise is to take fictional situations from movies, comic books, and televisions shows and discuss the legal ramifications by applying relevant law. Have you ever wondered whether mutants are a protected class? They have the answer. Want to know whether superheroes have a duty to rescue? Check here. Ever thought they just got the law wrong in Snakes on a Plane? You were right.  

I must have had this blog on the brain while watching Fox’s comedy Raising Hope. The show ended its second season with a courtroom custody drama titled “I want my baby back, baby back, baby back.” Jimmy Chance, two year old Hope’s father, is engaged in a custody battle with Hope’s mother Lucy Carlisle, a boyfriend-murdering serial killer who survived execution. The show is very funny, and clearly this episode was going for laughs and not realism. But that didn’t stop me from rolling my eyes or yelling “come on” at some of the absurdly unrealistic depictions of family law. So I thought that I would play Katniss and Peeta’s “real or not real” game Law and the Multiverse style.

Suppressing Evidence

First up, at the start of the trial, the mother’s attorney stands and makes an oral “Motion to Suppress Evidence of My Client as a Serial Killer.” She argues that the mother’s serial killer background should be suppressed because the charges were dismissed as part of a settlement deal from Lucy’s lawsuit against the prison, and therefore technically never happened. Assuming Lucy’s attorney is making the argument based on Rule of Evidence 403, which allows the exclusion of relevant evidence if the probative value is outweighed by the prejudicial nature of the evidence. Of course the fact that Lucy is a serial killer is prejudicial to Lucy, but it is not more prejudicial than probative, and would not be excluded on this basis.

Even if the judge found that it was more prejudicial than probative, in New Hampshire family cases, the judge has the flexibility to disregard the Rules of Evidence. Pursuant to Family Division Rule 2.2, the Rules of Evidence do not apply in divorce and parenting matters. The judge may, in her discretion, apply the New Hampshire Rules of Evidence “to enhance the predictable, orderly, fair, and reliable presentation of evidence.” The evidence of Lucy’s murder spree would absolutely come in as it is critical to the determination of the child’s best interests. The verdict: not real.

Jury Trial

Next, in Raising Hope land, a jury will hear the custody trial and issue a verdict. When the evidence of Lucy’s violent past is suppressed, Jimmy and his parents are not too worried because only locals “who were living under a rock” would not recognize Lucy as the serial killer from her high-profile trial. And then they bring out a jury composed only of miners who were stuck underground during the murders and trial. The Chance’s lawyer quips that he thought it was the gentlemanly thing to do to let his opposing counsel pick the jury (The Chances should probably be looking into malpractice claims). Of course, in reality, juries do not hear family cases. In New Hampshire, a judge (RSA 490-F), marital master, or child support referee (RSA 490-F:15) preside in the family division and issue court orders. The verdict: not real.

Presence of Minors in Courtroom

The jury renders a verdict in favor of the mother, granting custody of Hope to Lucy. While the verdict is being read, Hope sits on her father’s lap. Pursuant to New Hampshire Family Division Rule 2.8 “a child shall not be brought to court as a witness, or to attend a hearing, or be involved in depositions without prior order of the Court allowing that child’s participation. To obtain permission of the Court for the presence of a child in such a proceeding, good cause must be shown.” There are some exceptions for domestic relations cases, such as adoptions (RSA 170-B:19), guardianships of children over the age of 14 (RSA 463:8 and Family Division Rule 5.4), and certain circumstances in abuse and neglect cases (Family Division Rule 4.5). However, these exceptions do not apply in parenting rights and responsibility cases like the Chance custody trial, and Hope would not be permitted in the courtroom. The verdict: not real.

Brawl in the Courtroom

Finally, after the verdict is read, Virginia and Burt, Jimmy’s parents, begin wrestling with the bailiffs and generally causing a ruckus in the courtroom. The Chances seem to remain incarceration-free despite the fracas. This kind of behavior would probably have landed Virginia and Burt in jail for direct criminal contempt. The judge must preserve and protect the dignity and authority of the court, and the Chances conduct violates such dignity and authority. The verdict: not real.

Raising Hope gets an A for laughs, but and F for realism. I’ll still tune in though.

Representation of Accused Parents is Fundamental Right

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.

Have you considered collaborative law?

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.

2011 Lawline Dates

Need a legal question answered? The New Hampshire Bar Association's Lawline, a free legal advice call service, has upcoming dates in 2011. Lawline is on the second Wednesday of each month from 6:00 pm to 8:00 pm., at 800-868-1212.

Weds., June 8, 2011
Weds., July 13, 2011
Weds., Aug. 10, 2011
Weds., Sept. 14, 2011
Weds., Oct. 12, 2011
Weds., Nov. 9, 2011
Weds., Dec. 14, 2011
 

Concord, we have a problem!

Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.  

Pending Legislation

 

The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.

  • HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.
  • HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.
  •  HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.

If you have comments or concerns about these bills, contact your legislature to make your voice heard. You can find the contact information for your representative or senator on the state website.  

 

Impeachment of Master Cross

 

For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."

 

Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration."  The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.

 

Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.

 

The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.

 

State Budget

 

Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.

 

Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.

In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.

 

The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.

 

I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.

 

Please write to Governor Lynch, and tell him how his proposed budget affects your family.

Moving on after your divorce

As a divorce attorney, my job does not often focus on the healing or grieving aspect of the divorce process. My roll focuses on giving legal advice and representing my clients to help them achieve their goals for their case. For those cases that must be litigated, I spend a lot of time during the course of a case, sometimes years, getting to know a client and helping them get through the legal process. Eventually the court case will end though, and it will be time for the party to move on emotionally as well. But how?

While procrastinating on Facebook the other day, I came across a link to an article called Newly Divorced? Don’t Forget to Grieve written by high school classmate of mine, Mary Darling Montero. Mary is a psychotherapist in San Jose, California who specializes in relationships and life transitions.  Mary offers great advice to help grieve a relationship and move on.

Mary writes that the end of a relationship can often look similar to the grief stages an end-of-life loss might have. She explains them as follows:

• Denial-- We don't believe or accept that the relationship is over. If we initiated the split, we might feel ambivalent; we might believe that maybe our significant other is capable of change, after all. If the split was not our decision, we might believe that it's only temporary, that our significant other will realize that he or she made a mistake, and that reconciliation is possible. Denial can also be a general feeling of not believing that a relationship is over, even if we know that reconciliation isn't likely.

• Anger-- We're, well, angry. We're angry at the other person or we're angry at ourselves. We might be angry about what we perceive as wasted time, or how the other person is handling the relationship breakup. This stage can also be exacerbated and prolonged as we deal with legal issues related to divorce or child custody/support.

• Bargaining-- We might try to bargain with a higher power ("I'll never do such and such again if you bring him back to me") or literal bargaining with our ex ("I'll never do such and such again if you come back"). This could also be figurative bargaining ("I'll change this and that about my lifestyle and she'll come back when she realizes I've changed").

• Depression-- We understand that the relationship is over, and we face the reality that we have lost not only our significant other, but also the dreams attached to the relationship. Oftentimes the dreams are the hardest aspect of a relationship to let go.

• Acceptance-- We acknowledge that the relationship is over and begin to feel that we are capable of dealing with it, healing from it, and moving forward.

Most importantly, Mary notes that the grieving process at the end of a relationship will affect the couple’s children. Stay tuned into their feelings, she says, and do not pressure them to get over it quickly. Mary advises to trust your support system, try writing a journal to come to grips with your feelings, and make sure that you are taking care of yourself (eating, sleeping, exercising).

So, while your attorney will be a very important part of your divorce, so too is the professional that can help with the grieving process and emotional healing of the breakup. If you need help in the New Hampshire area, feel free to call Crusco Law Office, PLLC for a referral.

 

NH Bar's Lawline: Free Legal Advice

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   
 

Lexblog Q&A with Kysa Crusco of New Hampshire Family Law Blog

Recently, Lexblog interviewed me about blogging and my New Hampshire Family Law Blog in a post on Kevin O'Keefe's Real Lawyers Have Blogs. Take a look if you are interested in blogging, how I got started and the rewards and challenges of blogging.

Source: "Kysa Crusco of New Hampshire Family Law Blog: Lexblog Q&A" by Lisa Kennelly at  Kevin O'Keefe's Real Lawyers Have Blogs.

Massachusetts Divorce Law Monitor: New blog adds its voice to the blogosphere

A new divorce and family law blog written by Nancy Van Tine joins the blogosphere just over the border in Massachusetts. The Massachusetts Divorce Law Monitor has so far covered topics on the lawyer/client relationship, domestic violence, and Massachusett's new child support guidelines. It is good to see new voices added to the discussion of divorce and family law issues, especially in a state with new and emerging family law topics at hand. We will read Attorney Van Tine's blog with interest.

Alabama Family Law Blog: The lamb, the pitbull and the fox

I found a great post by Michael Sherman of the Alabama Family Law Blog titled The Style of Your Divorce Lawyer: The Lamb, the Pitbull and the Fox. As Attorney Sherman discusses in his blog, I am also frequently asked by prospective clients if I will be aggressive or act like a tiger. The better question to pose is what is your style of lawyering and how will that impact my case? Attorney Sherman identifies three types or attorneys: the lamb, the pitbullI, and the fox. I prefer the fox:

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.