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

New Hampshire has recently taken steps to protect parents and children from cross border kidnapping by adopting the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1997, becomes effective in New Hampshire on December 1, 2010. Vermont and Massachusetts remain the only states that have not adopted the UCCJEA.

Prior to NH’s adoption of the UCCJEA, we were operating under the umbrella of its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA) which had been adopted in all 50 states. The UCCJA, which was written in 1968, contained broad and sometimes vague language that allowed for courts in different jurisdictions to interpret the statute differently. These difficulties were further complicated by the passage of the Parental Kidnapping Prevention Act (PKPA) in 1980 that tangled with the UCCJA in determining jurisdiction for initial custody disputes. Complications arose between states in determining a child’s “home state” and enforcing judgments across state lines, with PKPA and UCCJA having differing standards for determining what custody determination were to be given “full faith and credit” between states. The drafting and passage of the UCCJEA cleans up these conflicts and puts these statutes in order.

Exclusive continuing jurisdiction

Under the UCCJEA, once the “home state” of the child has been determined (home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding), and child custody orders have been issued, that state has “exclusive continuing jurisdiction” that is entitled to full faith and credit across the country. This prevents other jurisdictions from modifying that order in any way, unless and until the original state has relinquished jurisdiction. This is a large step forward from UCCJA, where different interpretations caused conflicting orders and simultaneous proceedings.

Best interests, jurisdiction and the substantive merits

Additionally, while the UCCJA was designed to promote “best interest of the child” over whom custody was at issue, including the “best interests” was interpreted by some courts as an summons decide the merits of custody dispute while determining jurisdiction, or even that “best interests” should override jurisdiction considerations That was not the drafter’s intention and as such, the UCCJEA eliminates the term “best interests” so that the jurisdictional issues are clearly separated from the merits of the custody dispute.

Enforcement

The UCCJEA also sets out a unified system of enforcement mechanisms which were lacking under old law. Under UCCJA, enforcement evolved differently among the states, with, for example, one state requiring a Motion to Enforce or a Motion for Full Faith and Credit to initiate enforcement proceedings, while another required a writ of habeas corpus or a Citation for Contempt. These differences in enforcement resulted in increased cost, decreased certainty in outcome, and long and drawn out enforcement proceedings, allowing one parent to hold on to custody far longer than they should otherwise be able to. In addition to unifying the process, the UCCJEA now provides specific remedies for enforcement including:

1)      Procedure for registering a custody determination with another state to allow a party to predetermine whether a custody determination will be recognized in another state,

2)      A swift habeas corpus type remedy for immediate review of custody violations or disputes to allow parents to maintain their awarded visitation or parenting time,

3)      Extraordinary remedy – meaning if the enforcing court is concerned that the parent, who has physical custody of the child, will flee or harm the child, a warrant to take physical possession of the child is available, and

4)      There is now a role for public authorities, such as prosecutors, in the enforcement process. 

As to the role of public authorities in the enforcement of custody orders, the Prefatory Note to the UCCJEA states:

If the parties know that public authorities and law enforcement officers are available to help in securing compliance with custody determinations, the parties may be deterred from interfering with the exercise of rights established by court order. The involvement of public authorities will also prove more effective in remedying violations of custody determinations. Most parties do not have the resources to enforce a custody determination in another jurisdiction. The availability of the public authorities as an enforcement agency will help ensure that this remedy can be made available regardless of income level. In addition, the public authorities may have resources to draw on that are unavailable to the average litigant.

These changes will be welcome, both among attorneys and parents, as they now bring a level of certainty to parenting rights and responsibility determinations within New Hampshire and throughout the Country.  It is unfortunate, however, that the only two states yet to adopt the UCCJEA happen to be two of the three states with which we share a border, Massachusetts and Vermont. With any luck, they will follow suit shortly.

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

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With the same-sex marriage bill about to come to Governor Lynch’s desk, it is an appropriate time to examine the future of fault grounds in New Hampshire. Currently, New Hampshire has both fault and no-fault grounds for divorce. Only about 1% of divorces in New Hampshire are granted on the basis of fault. Of the nine fault grounds, adultery is the most common.

Adultery in New Hampshire has a very narrow definition. For the purposes of the fault ground statute, under the Blanchflower decision,

“the term “adultery” excludes all non-coital sex acts, whether between persons of the same or opposite gender. The only distinction is that person of the same gender cannot, by definition, engage in the one act that constitutes adultery under the state.”

Furthermore, the court rejected the notion that it should expand the definition of adultery to include sexual acts other than intercourse between a man and a woman because doing so would revise the established definition of adultery beyond recognition, and “it is not the function of the judiciary to provide for present needs by an extension of past legislation.”

I was before a marital master on a temporary hearing the other day, and when the issue of fault grounds came up, he pointed out that if same-sex marriage becomes law, there will be married same-sex couples who, by virtue of their sexuality, cannot commit adultery according to the law (unless they were to cheat with an opposite-sex partner). It is an interesting predicament, and something that the legislature will need to address. The legislature will need to either revise the definition of adultery to include an expanded array of sexual acts between same-sex or opposite-sex couples, or abolish fault grounds all together. Many family law attorneys would argue for the later, pointing out that fault ground divorces cost more, take longer and interfere with parents moving forward with a good co-parenting relationship. Either way, it is time for the legislature to take action on the issue.

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Today the New Hampshire House voted to approve HB 0436, which would legalize gay marriage in New Hampshire, by a vote of 186 to 179. The bill also includes provisions allowing clergy the freedom to determine whether or not to marry a gay couple. The bill will now move to the Senate for debate and vote.

Governor Lynch is opposed to gay marriage, and it is expected that he will veto the legislation. The Union Leader reports that his press secretary Colin Manning said:

The civil unions bill he signed into law prevents discrimination and provides the same legal protections to all New Hampshire families to the extent that is possible under federal law.

Source: Union Leader "NH House endorses gay marriage"

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This week the New Hampshire House will vote on HB 436, a bill that would legalize same sex marriage in New Hampshire and allow any civil unioned couples to obtain the legal status of marriage. Currently, Massachusetts and Connecticut are the only states that allow same sex marriage. Several states, including New Hampshire, allow same sex couples to enter into civil unions. According to a recent article in the Union Leader, Govenor Lynch, who supported civil unions, opposes gay marriage.

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My health insurance coverage is through my spouse’s employer. Will I be able to stay on the health insurance plan after I am divorced?

You may be able to continue coverage through a new law (RSA 415:18, VII b) that became effective on January 1, 2008 that allows a former spouse to continue coverage on the subscriber employee’s group health insurance policy for up to three years following the final decree of divorce. The law applies to both medical and dental coverage. Under the provisions, of the new law, a former spouse remains eligible for coverage until one of the following events occurs, whichever is earliest:

1)      Three (3) years from the final decree of divorce or legal separation;

2)      Remarriage of either the covered employee of the former spouse;

3)      Death of the covered employee; or

4)      Such earlier time as provided in the final decree.

The former spouse has the right to continue coverage under this law only for so long as the employee subscriber maintains coverage under the same group health insurance plan. If the employee is terminated or leaves employment, the former spouse’s eligibility is not transferrable to the new employer.

Unlike COBRA and New Hampshire’s continuation coverage statute which allows additional premiums to be charged, the insurers are required to make the health insurance coverage available without additional premiums as if the divorce had not occurred. This is a key aspect of the law, since often times COBRA premiums are cost prohibitive and unaffordable to the family member who needs to continue coverage. Additionally, the employer is required to continue to contribute to the former spouse’s coverage as if the divorce had not occurred. The court may assign or the parties may agree as to how the employee’s portion of the premiums will be paid, either by the employee, by the former spouse, or shared by the parties.

As a caveat, the law applies only to group health insurance policies, and employer plans that are self-insured are not subject to the law’s continuation requirements. Several large private and state and federal government employers, such as Wal-Mart, Fidelity, and the State of New Hampshire, are self-insured and so those with former spouses who work for these self-insured employers will not be able to continue coverage under RSA 458:18, VII.

This new law supplements the COBRA benefits and continuing coverage statute that are all ready in place. If a former spouse is not eligible, e.g. remarriage of either party or the court has not allowed coverage under this statute, COBRA benefits may still be available to provide health insurance coverage.  

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