Guardian ad Litem Reports are Confidential

After you receive the GAL report and read it, your first instinct might be to share the document with family, friends and perhaps professionals such as therapists or teachers. It is important to hold back on this urge because the GAL report is confidential.

Circuit Court Rule 2.15 states: “Written reports of the guardian ad litem shall be kept in an envelope marked confidential within the court file, and shall only be disclosed to parties or attorneys to the action.” The GAL Report is not part of the public court file that is accessible to any person with enough curiosity to travel to the courthouse to review the file. Thus, makes sure you obtain either agreement from any other party to the case or a court order allowing the GAL report to be disseminated.

GAL Investigation: What to Expect

The court has appointed a Guardian ad Litem, now what? While each GAL has their individual approach to an investigation, in general, this You Tube video reviews what you can expect during the investigation. 

 

 

 

When a Parent Moves - Relocation of a Child's Residence

When a parent desires to relocate, whether across the state or across the country, it can raise difficult issues for the children and the parenting schedule. This video highlights the standard for relocation set forth in NH RSA 461-A:12 and the issues encountered in petitioning for or defending against a request to relocate. 

What to Bring to a Pretrial Hearing

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

Termination of Parental Rights or Surrender of Parental Rights: What's the Difference?

I have received many questions about the similarities and differences between a surrender of parental rights and a termination of parental rights. While the end result is often the same when the parental rights and responsibilities of a parent are permanently severed, there many differences to be aware of. 

Similarities

• Both are proceedings that can end in the permanent severing of all parental rights and responsibilities of a parent.

• Parents who are surrendering or may have their parental rights terminated are entitled to an attorney, and if they cannot afford one the court will appoint an attorney to represent them.

• Both proceedings are confidential.

Differences

• In a surrender of parental rights, all the parties agree to terminate the rights of a parent; a termination of parental rights can be either contested or uncontested. A TPR petition does not always result in a termination of one or both parents parental rights. 

• A parent in a surrender is entitled to counseling at the expense of the petitioning party about the parent’s decision to place the child up for adoption.

• The court is required to appoint a guardian ad litem to represent the best interests of the child in a termination proceeding; a surrender petition does not require the appointment of a guardian ad litem.

• A surrender of parental rights requires that there be a pending adoption, where a termination of parental rights does not. An adoption does not always follow a termination of parental rights case.  

• A termination proceeding requires that the court make a finding, beyond a reasonable doubt, that grounds exist to terminate the parental rights of a parent and that it is in the best interests of the child. A surrender does not require such findings, only the agreement of the parties that the surrender take place.

• TPR cases are heard in the Circuit Court- Family Division, and surrender cases are either in the Circuit Court – Family Division or the Circuit Court – Probate Division depending on the specific facts of the case.

In Re Guardianship of Matthew L: A call for non-biological parents to secure parental rights


The Supreme Court issued an opinion In Re Guardianship of Matthew L. on December 21, 2012. 

The Facts

Mary and Joan began a committed relationship in 2004. Two years later, they began to plan for a family. Mary became pregnant in 2006 through artificial insemination, and gave birth to Matthew in April 2007. In June 2007, Mary and Joan petitioned to establish a co-guardianship to secure a legal, familial relationship between Matthew and Joan.

Mary ended her relationship with Joan in March 2008, and petitioned to terminate the co-guardianship a few months later. The motion was denied in October 2009. Mary renewed her request to terminate the co-guardianship in June 2010, and the issue went to trial in December 2011. Following the first day of trial, the Supreme Court issued its opinion In Re Guardianship of Reena D. Reena D. held that a guardianship established by consent requires the guardian to bear the burden of proof by clear and convincing evidence that substitution or supplementation of parental care and supervision is necessary to provide for the essential physical and safety needs of the minor and that terminating the guardianship will adversely affect the minor’s psychological well-being.

The trial resumed in March 2012, and the parties agreed that Reena D. applied. Joan asked for a continuance to prepare additional evidence and hire an expert since it was now her burden of proof. The trial court denied the motion, and following completion of the trial, ruled that Joan had failed to carry her burden that the continuation of the co-guardianship was necessary to provide for Matthew essential physical and safety needs. The court terminated the co-guardianship.

The Appeal

Joan appealed the trial court’s decision, arguing that the trial court erred by refusing to grant her motion to continue and that the trial court misinterpreted Reena D. to require her to prove both that the guardianship continued to be necessary to provide for Matthew’s essential physical and safety needs and that terminating the guardianship would adversely affect his psychological well-being.

The Holding

On the first question regarding the continuance, the Supreme Court held that it could not conclude that the trial court’s ruling was an unsustainable exercise of discretion. Where the trial court has broad discretion over its proceedings, and the record showed that the trial court had access to the GAL’s investigation and report which included information from Matthew’s therapist and the parent’s co-parenting counselor, the Supreme Court concluded that the trial court could have reasonably concluded that neither a continuance nor a new trial was required.

On the issue interpreting Reena D., the Supreme Court held that the question had not been preserved before the trial court because the general rule requires a specific and contemporaneous objection before the trial court. The court noted that “this rule, which is based on common sense and judicial economy, recognizes that trial forums should have an opportunity to rule on issues and to correct errors before they are presented to the appellate court. Despite affirming the appeal, the opinion provides a lengthy discussion of the parties’ arguments because they raise public policy concerns that the legislature may wish to address. The resolution before the court is left to another day.

The thrust of Joan’s argument is that by requiring her to prove both parts of a conjunctive test, instead of either part, it creates a dissimilar standard between the test to obtain a guardianship over the objection of a parent and to continue a guardianship previously consented to. For example, to obtain a guardianship when a parent objects requires the petitioner to prove pursuant to RSA 463:8, III(B) that the guardianship is necessary to either provide for the physical and safety needs of the child or to avoid adverse effects to the child’s psychological well-being. Joan argues that the termination of the guardianship should also be granted only if neither of the situations is true. She argues that “having different standards for the creation and termination of guardianships would foster instability in children’s lives, thereby contravening the entire purpose of guardianships.”

Mary, on the other hand, argues that Joan is “comparing apples to oranges.” She says that it should be easier to terminate a guardianship obtained through consent then to win guardianship over the objection of a parent. Otherwise, it would be contrary to the public policy of encouraging a struggling parent to make a difficult choice and allow for a guardianship if it will be near impossible to terminate that guardianship over the objection of the guardian.

The Takeaway

This is an interesting case in that the major, important question before the court remains unanswered despite a lengthy discussion of the issue by the court. Prior to the holding in Reena D., the trial courts generally applied a standard requiring the parent to prove that neither the physical safety of the child required supplementation of care nor would the child’s psychological well-being be impacted by the termination of the guardianship. It is a significant change to then require it to be proved that both are still true. Where a parent may be able to care for the child’s physical and safety needs without the guardianship in place, it will more often be the case where there will be a significant adverse effect on the child taken away from his caregiver who he has formed an attachment. The amicus brief filed by the National Association of Social Workers aptly points out that “just as courts have recognized that children form attachment bonds with caregivers, and do so without regard to biological or legal relationships, so they have recognized that disrupting a child’s attachment bonds can severely harm him or her.” With the burden shifted by Reena D., the legislature should act to make the test for the termination of a previously consented to guardianship disjunctive.

One cannot help feeling bad for the little boy in this case who has lost the legal relationship to one of his parents at the urging of his other parent. The October 2009 trial court order found that “Mary and Joan referred to each other both as Matthew’s mother; encouraged Matthew to look to both of them as mothers; and held themselves out to others as Matthew’s mothers.” Furthermore, that “[b]oth Mary and Joan are excellent parents.  Both love Matthew tremendously and show their love for him. … [T]he GAL had no concerns with either Mary or Joan as a parent.  The GAL noted that each has different qualities for nurturing Matthew.”

This case is an important example, at the expense of the well-being of this little boy, that a non-biological parent, whether in a same-sex relationship or heterosexual relationship, must secure unbreakable parental rights to protect their relationship with their child. Guardianship, at least under the Reena D. standard, does not adequately secure those rights since the legal relationship and rights that come with a guardianship can be severed. Adoption is the only means that will provide permanent security to the child and the parent. 

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!

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

Mission Impossible: Family Division Admin Order 2011-03

Blog posts have been sparse lately, and here's why: Administrative Order Number 2011-03. I've posted several times about the impending demise of the GAL fund, and it is finally coming to fruition. Judge Kelly's administrative order, issued on April 19, 2011, requires GALs in  all GAL fund  marital cases (this excludes abuse/neglect, TPR, guardianship and CHINs) to complete investigations, file final reports, final billing and withdrawals by June 1, 2011.

And let me tell you, that is a ridiculous amount of work to complete in just over a month. It feels like finals week in college or law school, only worse. Instead of finishing up five term papers, I have thirteen reports. It is extremely frustrating to be thrust involuntarily into such a situation because the court system cannot be properly funded by the legislature. 

In the end though, it is the children of indigent New Hampshire Families who will suffer the consequences. They will no longer have a voice in the courtroom, and judges will have to sift through pro se he said she said in trying to determine a child's best interest. And that's a shame for New Hampshire.

Guardian ad Litem fund nears extinction

The Guardian ad Litem fund took a step closer to extinction when the House Finance Committee voted last night to ok HB1 and HB2 and send it to the House for a full vote. The House budget cuts $742 million in spending from the current two-year budget. Among those cuts is the Guardian ad Litem fund, through which GALs are paid on family cases where parents cannot afford to pay upfront for GAL services and so they pay through the fund.

HB2 makes the following changes regarding the GAL Fund:

65. Guardian ad Litem Fees. Amend RSA 461-A:16, IV to read as follows:

IV. The fees for services for the guardian ad litem and others utilized by the guardian and approved by the court shall be a charge against the parties in a proportional amount as the court may determine. [ Where the parties are indigent, compensation for guardians ad litem and others utilized by the guardian and approved by the court shall be based upon the applicable fee schedule established by the supreme court for indigent defense counsel. ]

66. Liability for Expenses. RSA 461-A:17 is repealed and reenacted to read as follows:

Amendment to HB 2-FN-A-LOCAL

461-A:17 Guardians ad Litem and Mediators; Liability for Expenses. The 1 judicial council shall have no responsibility for the payment of the costs of a mediator or guardian ad litem for any party under this chapter.

67. Reference Deleted. Amend RSA 21-I:7-b to read as follows:

21-I:7-b Unit of Cost Containment. There is established within the office of the commissioner of administrative services a unit of cost containment. The unit of cost containment shall be responsible for all functions and duties authorized under RSA 604-A, regarding payment, recoupment and monitoring of indigent defense funds. [It shall also be responsible for all functions authorized under RSA 461-A:18 relative to recouping guardian ad litem funds.] The commissioner is authorized to employ personnel as necessary to accomplish the duties and functions of the unit of cost containment.

69. Repayment of Mediator and Guardian Ad Litem Fees. Amend RSA 461-A:18, I to read as follows:

I. In any case where a mediator has been appointed pursuant to RSA 461-A:7 or a guardian ad litem has been appointed pursuant to RSA 461-A:16 and the responsible party’s proportional share of the expense is ordered to be paid by the judicial council from the special fund established pursuant to RSA [461-A:17] through the unit of cost containment, office of administrative services, the fees and expenses paid on the party’s behalf as the court may order consistent with the party’s ability to pay, such ability to be determined by the unit of cost containment.

73. Child Protection Act; Guardians ad Litem. Amend RSA 169-C:10, I to read as follows:

I. In cases brought pursuant to this chapter involving a neglected or abused child, the court shall appoint a [guardian ad litem or] Court Appointed Special Advocate (CASA) or other approved program guardian ad litem for the child. If a CASA or other approved program guardian ad litem is unavailable for appointment, the court may then appoint an attorney or other guardian ad litem as the guardian ad litem for the child. The court shall not appoint an attorney for any guardian ad litem appointed for the child [, but may appoint an attorney or any other qualified individual as the guardian ad litem for the child]. The CASA or other approved program guardian ad litem shall have the same authority and access to information as any other guardian ad litem. For purposes of this paragraph, “unavailable for appointment” means that there is no CASA or other approved program guardian ad litem available for appointment by the court following a finding of reasonable cause at the preliminary hearing held under RSA 169-C:15 so that the child’s interests may effectively be represented in preparation for and at an adjudicatory hearing.

 How will the elimination of the GAL fund affect the judicial branch and families?

• When the court has safety concerns about a child and cannot appoint a GAL using the fund, the court will turn to DCYF to investigate the concerns. This will increase the work required of DCYF and expend state resources.

• Trials and hearings will take longer and require more courts resources. Currently, GALs speak to witnesses, review records and report the information to the court in a clear, concise manner. Without a GAL, litigants will bring into court teachers, therapists, family and friends to give testimony. Litigants will submit volumes of emails, medical records, school transcripts and more for the court to sift through. This will increase the time required of the court to hear the case.

• Fewer cases will settle, necessitating more hearings and trials. Currently, once a GAL issues a report or recommendation, litigants are often able to enter into settlement discussions using the opinion of the GAL as a case evaluation. Without that process, litigants will settle less often and in turn take up court resources with more motions and hearings.

• Because trials will take longer and occur more often, the court system will suffer longer delays. Currently, the wait for a two day divorce trial in the Brentwood Family Division is over one year from the time that it is scheduled. Without the GAL fund, parties will have to wait even longer for a resolution to their case.

• Indigent litigants will be denied access to justice that litigants who can afford to pay up front for a GAL will have. The court system has never discriminated on the basis of income, and it should not start now.

There are alternatives to the elimination of the GAL fund. One alternative is the state doing a better job of collecting the funds that parents owe for GAL services. My understanding is that the fund requires about 1.8 million to run each year. The judicial branch collects $240,000 in filing fees for the GAL fund. In addition, the office of cost containment collects about $350,000 from parents who use services. This leaves a shortfall of roughly 1.2 million. This gap could be closed more effectively recouping the funds from litigants.
 

If the elimination of the GAL fund concerns you, contact your House representative and ask that the GAL fund be preserved or at the very least the effects of defunding it should be studied in committee before acting.

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.

Appeal in the New Hampshire homeschooling case: Kurowski & Voydatch

Back in September 2009, the so-called New Hampshire homeschooling case (In the Matter of Martin Kurowski and Brenda Voydatch) grabbed national headlines when the court ordered the parties’ child to attend public school instead of continuing with home schooling. Home school supporters decried the decision, arguing that the order trampled the mother’s constitutional rights to raise and educate her child as she saw fit. The problem with that line of thinking is that it fails to acknowledge that the child has two parents, not one. As an equal decision maker, the father has rights too. When the parents could not agree on matters of education and religion, the family court decided.

The case is currently on appeal at the New Hampshire Supreme Court, and headed to oral arguments on January 6, 2011 at 9:00 am. The parties have submitted their briefs, including an Amicus Curiae brief from the Home School Legal Defense Association (HSLDA).  

The mother, through her attorney John Simmons, filed an appeal and brief with the New Hampshire Supreme Court, asking the court to consider the following questions:

 

  • Whether the trial court erred in modifying a parenting plan, to order a home schooled child to attend public school, by considering the “best interests of the child”, where none of the statutory circumstances permitting modification, as set forth in RSA 461-A:11, were present, and the court made such finding.
  •  Whether the trial court erroneously concluded that it was in the best interests of a home-schooled child to be sent to public school where the court’s decision was based on its own definition of the purpose of education that was unsupported by RSA 461-A:6,I or by any other law.
  •  Whether the trial court’s decision should be reversed because it committed plain error in relying on the opinion testimony of a guardian ad litem who was not qualified as an expert and who’s opinion was not based on a rational perception within the meaning of Rule 701 of the New Hampshire Rules of Evidence.
  • Whether the trial court’s order that a home schooled child attend public school to expose her to diverse points of view was erroneous because it violated the fundamental parental right to control a child’s education guaranteed by the United States Constitution, where the evidence showed that the child was already getting a superior education and the State’s purported goal could be achieved by a less restrictive means.
  •  Whether the trial court’s order that a home schooled child attend public school because she was too rigid in her religious beliefs was erroneous because it interfered with the child’s right to the free exercise of religion guaranteed by the First Amendment to the United States Constitution.
  • Whether the trial court’s order that a home schooled child attend public school should be reversed because it relief on the testimony of a guardian ad litem who was biased against the religion practiced by the child and her mother.

The father, through his attorney Joshua Gordon, submitted a reply brief. HSLDA submitted an amicus curiae brief. Stay tuned for a blog post reviewing the arguments and briefs.

The Berg Case: Parents right to access medical records v. child's right to privacy

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.

How to work with a Guardian ad Litem

A Guardian ad Litem investigation is often a stressful and intrusive process. However, it is important to remain cooperative and informative during the case. Here are some tips on how you should conduct yourself during the process.

· Return the GAL Stipulation and Questionnaire Promptly: When the GAL is first appointed, he will send out to you or your attorney a Guardian ad Litem Stipulation and a questionnaire. The GAL Stipulation is an agreement between you and the GAL that sets forth the issues the GAL will investigate, how the GAL will be paid, and other matters such as access to the children’s mental health records. The questionnaire is a form that the GAL uses to gather information and background on your family and identify issues and areas of disagreement. It is very important to complete and return these items to the GAL as soon as possible.

·Set up your initial meeting with the GAL per the GAL’s instructions: When the GAL receives the appointment, she will send you a letter with instructions. Some GALs will ask that you return the stipulation and questionnaire first, and then call to set up an appointment. Others will set up an appointment right away. Read the letter from the GAL and follow instructions for setting up your first appointment. If you do not hear from the GAL after a few weeks, call the GAL to check in and see what your next steps should be.

· Provide complete contact information for references: The GAL will ask you to provide him with references to speak to regarding you and your family. These may be friends and family, or professionals such as teachers who are familiar with either you, your coparent or the children. Provide the GAL with complete contact information for these references, including an address, telephone number and email if appropriate.  

· Provide the GAL with copies of court documents, orders, and pleadings: If you do not have an attorney to manage your case for you, when the GAL is appointed make sure to provide him with copies of the court orders, pleadings or other relevant documents. It is enormously important, as the GAL only receives the GAL appointment and possibly the court order issued with that appointment. Having you provide the pleadings and court orders that necessitated the appointment of the GAL, as well as the orders for the current parenting schedule, will give the GAL important background on your case.

· Cooperate with the GAL investigation: The GAL may ask to schedule a home visit with the children, or that you bring the children to her office. The GAL may also ask for authorizations to speak to medical providers or other professionals that require a release. Respond to the GAL’s requests promptly, and provide her with information that she requests.

·  Be relevant and informative: There are probably a lot of reasons your relationship with the other parent broke down. While the GAL will want a brief overview, unless the issues have significant relevance to the children, try not to spend a lot of time on non-child issues. For example, the breakdown of your marriage may have been caused by an affair your spouse carried on. However, unless your spouse is introducing the children to their new significant other or making concerning choices about priorities between the children and the new relationship, that is an issue best left to the court and your therapist.  

Termination of parental rights in New Hampshire

“Surely there can be few loses more grievous than the abrogation of parental rights.” Those words are as true today as they were when Supreme Court Justice Blackmun first wrote them in Lassiter v. Department of Social Services in 1981. Unfortunately, there are times, however grievous, when it is necessary to terminate parental rights against a parents wishes. There are also times when rigorous defense against a petition to terminate parental rights is warranted.

The United States Supreme Court has long recognized the right and the heavy responsibility of the states to terminate the parent-child relationship when there is cause to do so. In New Hampshire, RSA 170-C provides for involuntary termination of parental rights, and the probate courts, and now also the family divisions, have exclusive jurisdiction over such termination of parental rights matters. If the court orders a termination of parental rights, the effect is to sever all legal rights, privileges and duties between the parent and the child. The two become legal strangers in the eyes of the law, with neither parent or child owing any obligations to the other at any point in the future.

 

A termination petition may be filed, pursuant to RSA 170-C:4 by:

 

a.       Either parent;

b.      The child’s guardian or legal custodian;

c.       The child’s foster parent if the child has resided with that foster parent continuously for 24 months; or

d.      An “authorized agency,” which in termination of parental rights petitions would be the Division for Children, Youth and Families, or DCYF.

 

Additionally, the statute sets forth limited conditions on which such a petition may be brought. RSA 170-C:5 lists six circumstances under which a petition for termination of parental rights will be granted:

 

a.       The parents have abandoned the child

b.      The parents have substantially and continuously neglected to provide the child with the care necessary for mental, emotional, or physical health when they are financially able to do so

c.       The parent(s) have failed to correct conditions that lead to a violation of the Child Protection Act, within twelve months of such a finding

d.      The parent is, and will continue to be, mentally incapable, either by deficiency or illness, of caring for the child

e.       The parent knowingly or willingly caused, or allowed to be caused, severe sexual, physical, emotional or mental abuse of the child

f.       The parent has been convicted of any of the following crimes:

a.       The murder of another child of the parent, a sibling or step-sibling of the child, or the child's other parent;

b.      The manslaughter of another child of the parent, a sibling or step-sibling of the child, the child's other parent;

c.       Attempted murder of the child, step-child, sibling or other parent; or

d.      A felony assault which resulted in injury to the child, a sibling or step-sibling of the child, or the child's other parent.

 

Courts will consider the best interest of the child in rendering a decision, sometimes appointing a Guardian Ad Litem to represent that interest. However, even if the court determines that the child’s best interests are served by terminating a parent’s rights, that finding alone is not sufficient to order termination. A court must make an explicit finding under the statute that one or more of the above criteria has been satisfied. The United States Supreme Court states: in Santosky v. Kramer:

The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.

The Santosky court also held that, except for clear cases of abuse, the government should not separate children from their families or countermand parental authority.

 

Because termination affects a fundamental constitutional right for parents to raise their children as they see fit, New Hampshire courts have increased the burden on the petitioner to prove that TPR is appropriate. In State v. Robert H., the New Hampshire Supreme Court made it clear that for the termination of parental rights, the standard to be imposed is proof beyond a reasonable doubt that 170-C:5 has been satisfied. It is fitting that the petitioner must meet this highest burden as “the rights of parents (over the family) are held to be natural, essential and inherent rights, within the meaning of the New Hampshire Constitution,” the New Hampshire Supreme Court states. “The permanent termination of the rights of parents over their children is even more final than involuntary commitment or delinquency proceedings” both of which require that heightened standard; no other standard would be appropriate.  

 

The above discussion merely scratches the surface of these intricate and complicated issues. Each case has its own set of unique facts and circumstances. The termination of parental rights is extremely serious, and for that reason, as well as those cited above, it is very important that you retain competent counsel if you are involved in a TPR action, whether as the parent or the petitioner. Contact Crusco Law Office, PLLC for further information. 

 

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

Grandparents rights in New Hampshire

Most people have heard of visitation in the context of a divorce or parenting matter for a parent. However, many New Hampshire residents are unaware that New Hampshire grandparents have certain rights to visit with their grandchildren, sometimes even over the objection of the parents. Although parents have constitutional rights and responsibilities regarding how they raise their own children, including where they live, what school they go to, and who they allow to see their children, grandparents are not without their own set of rights pursuant to RSA 461-A:13.

When a conflict arises where a parent or parents of a child decide that their parents are no longer allowed to see their grandchildren, grandparents may petition for a court order provided they meet the requirements of the statute. In order to petition for these rights, there must be an absence of a nuclear family, whether by divorce, death, termination of parental rights or other reason. In other words, if a mother and father who are together decide that the grandparent may not see their grandchild, the grandparent will not have standing to seek the visitation under the statute.    

If an absence of the nuclear family exists, the Court will examine the factors enumerated in the statute to determine whether the visitation should be granted. The factors include:

  • whether visitation with the grandparent would be in the best interest of the child,
  • whether it would interfere with any parent-child relationship, or with that parent’s authority over the child,
  • the nature of the relationship between the grandparent and the child, including the frequency of contact between them, whether they have resided together in the past, and whether there would be an emotional blow to the child by visitation or a lack thereof, and
  • the impact of the relationship between the parents and grandparents on the child, including whether any friction resulting from visitation would have a negative impact on the child.

In addition to examining the above factors, the court will often also appoint a Guardian Ad Litem and listen to her recommendations regarding the proposed grandparent visitation carefully.  If the child is emotionally mature, the court may consider the child’s opinion about the matter as well.   

While New Hampshire grandparents may seek visitation under New Hampshire law, not all states protect the grandparent-grandchild relationship. Additionally, the United States Supreme Court, in Troxel v. Granville, overturned a Washington statute allowing grandparents the right to petition the courts for visitation of children over parental objections. The court stated that parents have a constitutional right to rear their children as they see fit. The court also affirmed that there is “a presumption that fit parents act in the best interests of their children.”

In spite of the Troxel ruling, New Hampshire courts have continued to grant grandparents rights because the statute contains safeguards for a parents rights over their children. Even if grandparents are in some way infringing on parental rights, what is most important is the best interest of the children. Sometimes, those interests are best served by maintaining a healthy grandparent-grandchild relationship, even over the objection of the parents. 

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

How do I relocate with my children out of state?

Q: I have primary residential responsibility for my children, and I want to move out of state with them, what do I need to do to move?

A: The relocation statute (NH RSA 461-A:12) requires that the relocating parent shall provide reasonable notice to the other parent of the move. While “reasonable notice” may vary depending on special factors present in your case, in most cases 60 days is presumed reasonable notice. This notice requirement applies in all parenting rights and responsibilities cases unless specifically addressed otherwise in the parties’ existing order or agreement. However, it does not apply when the relocation will move the parent and children closer to the other parent or within the same school district.

 

If the non-relocating parent objects, the court will hold a hearing on the matter at the request of either parent. Often, the court will appoint a guardian ad litem to investigate the issues and make a recommendation to the court regarding the relocation.

 

In order for the relocating parent’s request to be approved, that parent must show that their relocation is for a legitimate purpose and that the proposed relocation is reasonable in light of that purpose. In other words, if the relocating parent is moving to be near her family that lives in Florida, the proposed move should be to Florida and not North Dakota. A legitimate purpose may be for a variety of different reasons, including economic opportunities such as employment or the ability to be self-supportive, to be close to a support network of friends and family, or for an educational opportunity for the parent or children.

 

If the relocating parent proves, by a preponderance of the evidence (more probable than not), that the relocation is for a legitimate purpose, then the burden shifts to the non-relocating parent who must show the court that the proposed relocating is not in the best interests of the children. Even if the relocating parent has a legitimate purpose, and is not moving for nefarious purposes such as interfering in the other parent’s relationship with the children, the court may find that it is not in the children’s best interests and deny to relocation.

 

When considering the relocation, the court may consider several factors enumerated in the NH Supreme Court cases Tomasko and Pfeuffer:

 

·         Each parent’s reasons for seeking or opposing the move;

·         The quality of the relationships between the child and the custodial and noncustodial parents;

·         The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent;

·         The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move;

·         The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements;

·         Any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and

·         The effect that the move may have on any extended family relations.

 

No single factor is presumed to be dispositive, and the court may consider additional factors as the case demands.

What is the difference between a CASA and a GAL?

I had a conversation today in which the person stated that most Guardian ad Litem's are volunteers, and that it is very unusual to have a GAL who is paid for his services. I thought this topic was worth a blog post to clear up this misconception that seems to derive from the common mix up between a CASA and a GAL.

As discussed previously on this blog, a GAL is a professional appointed by the court to perform an independent investigation and to make recommendations to the court regarding the best interests of a child. A GAL may be appointed in all types of family law cases, from divorces to guardianships, and is paid for her services. GALs are not volunteers, although most GALs work for drastically reduced rates and work far more hours on a case than are billed.

On the other hand, a Court Appointed Special Advocate or CASA is a trained volunteer who serves as an advocate for children in abuse or neglect cases. An abuse or neglect case is a type of case brought to the court by the Division of Children, Youth and Families under the Child Protection Act to protect the health, safety and welfare of a child. Although a CASA's role is very similar to that of a GAL, a CASA only works on abuse or neglect cases or derivative termination of parental rights.

How will the court determine what my parenting rights and responsibilities will be?

The court uses a “best interests of the child” standard as set forth in RSA 461-A, and specifically RSA 461-A:6. The statute does more than just identify a grocery list of twelve factors to guide a court’s evaluation of parenting rights and responsibilities. It sets forth an assessment designed to determine the best interests of the child or children involved in such a proceeding.

It also gives courts the ability to: consider what the child wants; take certain steps to protect victims of sexual abuse or assault from a parent; grant reasonable visitation privileges to stepparents and grandparents; and appoint a guardian ad litem (GAL) to represent the child. Additionally, RSA 461-A:6 prevents the court from including the sex of the child or parent or even the parent’s financial means as part of its evaluation.

With that said, the factors are important and cover a spectrum of considerations as follows:

a)      The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.

b)      The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.

c)      The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.

d)     The quality of the child's adjustment to the child's school and community and the potential effect of any change.

e)      The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, except where contact will result in harm to the child or to a parent.

f)       The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.

g)      The support of each parent for the child's relationship with the other parent.

h)      The relationship of the child with any other person who may significantly affect the child.

i)        The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children.

j)        Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

k)      If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.

l)        Any other additional factors the court deems relevant.

These factors are a guide for the court, and no single factor is determinative for an award of parenting rights and responsibilities. In the end, it is at the discretion of the court as to how heavily it will weigh each factor and be guided by a guardian ad litem's recommendation.

Blog Credit: Tara Moore, Crusco Law Office Law Clerk

Guardian Ad Litem fees in New Hampshire

When parties disagree about the parenting rights and responsibilities of each parent, often the court appoints a Guardian Ad Litem. This adds an additional time and cost to a divorce or parenting case. As with attorney fees, the cost of GAL can vary depending on the rate that he charges and the time demanded by the complexity of the case. 

A GAL can be paid through "private pay" or through the "court fund."  When a GAL is paid through a"private pay" case, the court's order of appointment apportions the payment of the GAL's retainer. The cost is not always split 50/50, and the division of the fees is reviewable at a final hearing. In New Hampshire, the retainer usually ranges between $1,000 and $1,500. Additionally, the hourly rate varies from $60 to $100 per hour.

When one or both parties cannot afford to pay for the GAL, the court may order the payment of services from the Guardian ad Litem court fund. When a party qualifies to use the court fund, the GAL is paid for her fees through the court's fund. However, a party is required to contact the New Hampshire Office of Cost Containment to determine their ability to repay the fund for their share of the GAL services in their case.

 

What is a Guardian ad Litem?

A guardian ad litem, often referred to as a "GAL," is a person appointed by the court to represent the best interests of an individual. Unlike a guardian, a GAL does not manage the affairs of of persons, nor do they act as their attorney.  

In a divorce or parenting petition proceedings, the GAL is usually appointed to represent the best interests of the children. The court charges the GAL with the responsibility of investigating designated issues and making recommendations to the court. Issues can include parenting responsibility, parenting schedules, ability of either parent, influence of significant others, and special needs of the children. The GAL is a valuable tool for the court since the GAL can gather a lot of information to provide to the court and aid in making a decision regarding parenting rights and responsibilities.

For more information on Guardian ad Litems, the New Hampshire guardian ad litem board has useful information on their site.