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

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.  

           

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A Guardian ad Litem investigation is often a stressful and intrusive process. However, it is important to remain cooperative and informative as possible 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 mattera 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.  

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The New Hampshire Supreme Court issued an opinion on December 4, 2009 in the case of In the Matter of Adam Muchmore and Amy Jaycox, a domestic relations case pertaining to the modification of a parenting plan. In Muchmore & Jaycox, the Court holds that a parenting plan cannot be modified solely based on the best interests of the child, and instead the modification must comport with the statutory scheme laid out in RSA 461-A:11. The decision is disappointing, though not unexpected since the Court simply strictly applied the statute, because it prevents parents from modifying a parenting plan for issues such as a new schedule for the transition into kindergarten. Based on this decision, it will be important for the legislature to take action to allow modifications to a parenting schedule that do not rise to the level of the factors enumerated in the statute.

As background, Adam Muchmore and Amy Jaycox are parents of a minor child born in 2006. They previously resided in Vermont but have each since moved to New Hampshire. A June 2007 Vermont Order granted Amy Lecroix “primary legal and physical parental rights and responsibilities” for the child and allowed the petitioner, Adam Muchmore, regular weekly contact with the child.

In July 2008, Muchmore petitioned the Lebanon Family Division to modify the parenting plan pursuant to RSA 461-A:11, claiming that (1) Jaycox had “repeatedly, intentionally, and without justification” interfered with his parental responsibilities for the child and modification would be in the child’s best interests; (2) that there was clear and convincing evidence that the child’s present environment was harmful to her; and (3) because of the respondent’s conduct, the original allocation of parental rights and responsibilities was not working.

The Lebanon Family Division ruled that Muchmore had failed to meet his burden of proof with regard to each of the reasons for modification he cited, pursuant to 461-A:11; I(b), I(c), and I(d). The court went on to hold, however, that Muchmore’s petition was “sufficient to establish that modifying the parties’ parenting schedule would be in the child’s best interests, and that, pursuant to RSA 461-A:4 (Supp. 2008), proof that modification was in the child’s best interests was all that was required.” Jacox appealed to the Supreme Court.

The Supreme Court acknowledged that the circumstances under which a parent may seek modification of an existing parenting plans is governed by RSA 461-A:11, and concluded that because Muchmore did not meet his burden under that statute that he is not entitled to a modification. Muchmore argued that even if he failed to meet his burden under 461-A:11, a parent should be allowed to modify a parenting plan when the modification is in the best interests of the child, citing 461-A:4 as support for his assertion. The court held that even though 461-A:4 referenced a “proceeding to establish or modify”, that statute was aimed at the initial construction of a parenting plan while 461-A:11 governed actual modifications. 

The Court recognized in its opinion that this result was somewhat regrettable in that it prevented a court from “reassessing the best interests of a child in circumstances where the parents are not interfering and where the child’s current environment is not detrimental,” those circumstances being the majority of cases in practice. However, the Court continues, “RSA 461-A:11, I, does not grant the court discretion to modify an existing plan under any other circumstances” and that it is not up to the court to solve that problem or “to speculate as to how the legislature might choose to do so.” (Emphasis added). Simply put, the court is saying that if the legislature wanted to include a provision for the best interests of the child in 461-A:11 it could have chosen to do so. The Court, in the end, relies on strict statutory interpretation and deference to the public policy decisions of the legislature to assert that their hands were effectively tied.

However, without a provision to allow for some limited modifications based on best interests, a parenting plan that addresses the needs of a toddler may have to do for a tween. The parenting plan form itself encourages parents to view the plan as a work in progress as the children grow and their needs change from infant to teen, but the statute itself does not allow for the changes except in the case that the parents agree or major issues develop as set forth in 461-A:11. It is certainly understandable that the legislature would not include a best interests standard for change in major categories such a primary residential responsibility, as this would just encourage more litigation and allow parents to petition the court for modification whenever they might have the upper hand. However, for routine and holiday schedule changes or other issues that do not call for a change in residential responsibility, there needs to be a mechanism to allow for modification based on best interests so that the court may tweak a parenting plan as the current needs of the child dictate.  

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

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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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There is a lot of talk about the H1N1 flu and the vaccines, and rightly so. 46 states are reporting widespread flu activity, and some New Hampshire schools are reporting absence rates of up to 30% . New Hampshire has activated the 2-1-1 state info line to answer questions about the flu and the vaccine. New Hampshire’s Department of Health and Human Services has also published a FAQ about the seasonal flu and H1N1 flu.

Many parents have concerns about the H1N1 vaccine and its safety and efficacy. If you and your co-parent have joint decision making responsibilities, this is an issue that you need to discuss together. Joint decision-making responsibility is defined as equal participation in the major decisions of the children’s life regarding health, safety and welfare, including but not limited to matters pertaining to medical and psychological care, discipline, education, daycare and extracurricular activities.

 

Whether to vaccinate your children is a major decision, and therefore should be agreed upon by both parents. Speak together with your pediatrician, and consider his or her opinion about the matter. Listen to what your co-parent has to say, and talk over the pros and cons of vaccinating your children. Make every attempt to come to a decision together, taking into account the best interests of your children.

 

In the meantime while either discussing the issue with your co-parent or waiting for the vaccine to become available, take the everyday steps recommended by doctors and health care officials to keep your child flu-free:

 

• Wash hands frequently with soap and water for 20 seconds (long enough to sing the “Happy Birthday” song twice) especially after coughing or sneezing. Be sure to set a good example by doing this yourself.

 

• Cough and sneeze into a sleeve or tissue. (If a tissue is used, throw the tissue away immediately). Be sure to set a good example by doing this yourself.

 

• Stay at least six feet away from people who are sick.

 

• Stay home from school if sick, and stay away from sick people until they are better.

 

• Keep surfaces like bedside tables, bathroom surfaces, kitchen counters and toys for children clean by wiping them down with a household disinfectant according to directions on the product label.

 

Sources:

 

·         While state awaits more vaccine, 2-1-1 answers H1N1 questions, The Union Leader

 

·         Frequently asked questions from parents about seasonal flu and H1N1 influenza, New Hampshire Department of Health and Human Services

 

·         School reports more than 30 percent of students out sick, WMUR

 

·         Officials tout safety, efficacy of H1N1 vaccine, Meg Haskell, The Bangor Daily News

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If you are the non-accused, non-custodial parent of a child who is the subject of an abuse or neglect filing by the Division of Children, Youth and Families, the outcome of the case could have a substantial affect on your parental rights. Although non-accused, if a finding of true is entered, the parents of the child have an obligation to correct the conditions that led to the finding of neglect. If the conditions have not been corrected within twelve months of the finding, your parental rights could be terminated, even if you are the non-accused parent. Accordingly, it is very important to be well versed on your rights and, if possible, hire an attorney to represent you.  

Request for custody

As the parent who does not live with the child and is not alleged to have abused or neglected your child, you have the right to petition the court for a “Bill F” hearing. The hearing is titled after the New Hampshire Supreme Court case, In Re Bill F, in which the court held that parents who have not been charged with abuse or neglect must be afforded, upon demand, a hearing regarding their request for custody. At the Bill F hearing, a parent must show that he or she has the ability to provide care for the child. If shown, the court shall award custody unless the State demonstrates, by a preponderance of the evidence, that he or she has abused or neglected the child or is otherwise unfit to perform his or her parental duties.

 

Right to an attorney

A parent who has been accused of abuse or neglect has the right to have an attorney represent him or her throughout the case, and if they cannot afford an attorney, one will be appointed to represent them. Not so for the non-accused, non-household parent. Although you will have the right to hire an attorney at your own expense, RSA 169-C:10, specifically prohibits the court from appointing an attorney to represent you. The New Hampshire Supreme Court affirmed in the case of In Re Father, holding that the statute prohibiting the appointment of an attorney to represent a non-accused, non-custodial parent does not violate the Due Process Clause of the State Constitution.

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As the fall air turns crisp and cold and the days grow shorter, we are reminded that the holidays are just around the corner. Thanksgiving, Hanukkah, Christmas Eve, Christmas are often the most celebrated and traditional family holidays, and now is a good time to make sure that you and your co-parent are on the same page. Discussing the schedule early will help insure that there will be no last minute snags.

If you have a parenting plan that has specific times in place for the holidays, make sure that your plans conform to the parenting time that you are scheduled to spend with your children. If you and your co-parent would like to deviate from the schedule in the parenting plan, put it in writing and if possible, have it approved as a court order. This may seem extreme, but remember that agreements made outside of court, and especially agreements that are not in writing, may not be enforceable and come holiday time you could be left high and dry if the other parent changes their mind.  

If you do not have specific times and instead have language to the affect of “as the parties agree” or have no court orders in place, discuss the schedule now well in advance of the holidays. The sooner you discuss the schedule, the sooner you will know if there are going to be difficulties agreeing on parenting time and whether you may need to seek court orders. Remember, heading down to the courthouse on December 24^th at 2:00 pm to attempt to get an ex-parte emergency order is not the ideal way to spend your holidays.

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A recent decision in the Laconia Family Division regarding a parent's disagreement over homeschooling their daughter has been grabbing national attention., including a headline on Fox News. Unfortunately, the news articles, bloggers, and advocates for the mother paint this as a constitutional issue, one of the state interfering with parents' constitutional right to raise their child as they see fit. However, this case is not a constitutional matter or a ruling on the merits or value of homeschooling. It is an example of what happens when two parents cannot agree on what is best for their child.

The facts of the case are as follows: Martin Kurowski and Brenda Voydatch divorced in 1999. The parties were awarded joint-decision making responsibility for their daughter, Amanda, meaning that each parent would have equal say in major life decisions such as education and medical care. Although the parents disagreed about whether Amanda should be home schooled, Amanda was home schooled by her mother. The parties continued to disagree on the issue, and because they could not agree, it went to the court. A Guardian ad Litem was appointed to investigate and make recommendations to the Court. After completing her investigation, the Guardian ad Litem recommended that Amanda's best interests were served by her attendance at public school. After a evidentiary hearing, in which both parties testified and submitted evidence, the court agreed with the Guardian ad Litem, and ordered that Amanda be enrolled in public school. The court, in the lengthy decision, states:

The Court is extremely reluctant to impose on parents a decision about a child's education, which commonly emerges after sincere and thorough discussion between parents who are both committed to the child's growth and development. In the absence of effective communication between the parents whose case reflects a history of opposing opinions on a variety of issues, the Court is guided by the premises that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life. 

The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the Meredith public school system. Instead, the debate centers on whether enrollment in public school will provide Amanda with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view. Considering the testimony of both parties and the Guardian ad Litem, and by the standard of a preponderance of the evidence, the Court concludes that it would be in Amanda's best interests to attend public school.

"Parents have the fundamental rights to raise their children to the dictates of their conscience," stated the mother's attorney, John Simmons. And this is true, to a certain extent. As recently discussed on this blog, the United States Supreme Court has ruled 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.” The key word here is parents. The state may not intrude on two fit parents who jointly decide what is best for their child. That is not the case here.

Here, two fit parents did not agree on what was best for their child. Attorney Simmons argues that the court has taken away Voydatch's right, as the girl's primary-custody parent, to make decisions regarding her future. Attorney Simmons argument falls short however, as being the parent assigned primary residential responsibility has no bearing on whether that parent has the right to make unilateral decisions about the child. New Hampshire, as with most states, breaks "custody' into two categories: 1) residential and 2) decision-making. A parent could have the majority of the parenting time, called residential responsibility, but still be required to share decision-making responsibility. In this case,  Martin Kurowski and Brenda Voydatch had joint-decision making responsibility. They could not agree on whether Amanda should be home schooled, and in the absence of agreement, the court decided the issue. The father's attorney, Elizabeth Donovan, has it right when she explains: "When two parents with joint decision-making responsibility disagree and they cannot come to any common ground, we submit it to the court. The court takes all the testimony and the court renders a decision. Mrs. Voydatch didn't like the decision."

Parents should keep cases like this in mind when they are litigating issues regarding their children. Parents have two choices. Either the parents decide what is best for their children together as a family, or a judge, who the parents will meet just a few times in their life, will make the decisions for the parents and their children.

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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.

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I was reading a blog post today by photographer Samantha Warren at Samantha Warren Weddings in which she mused on a tweet by Dita Von Teese that pondered "Did you all know that I only tell you the fun & glamorous things that I do, not the boring & unpleasant things?"  Sam writes in response:

Ms. Teese's tweet summed up one of the significant snags I see with social media, and that is that while you may put your life out there through Facebook, Twitter and blogging, it's life filtered, often for a particular purpose. In musical terms, while social media claims to be a jam session, the control we have over our image through its technology makes it a best of collection.

So true! Most of us using social media from Facebook to Twitter chat and tweet about the happy goings on from our beach vacations to a new job.  However, mix a stressful divorce or parenting rights and responsibilities matter with social media and our emotions can often get the best of us. Instead of the happy face usually broadcast to the world, the anger and hurt rises up and reaches out through our fingertips, sendind out status updates or tweets best kept to ourselves.

Time Magazine's recent article, Facebook and Divorce: Airing the Dirty Laundry, warns domestic relations litigants over the dangers of social media during litigation. Post a picture of your new BMW motorcycle after claiming the poorhouse? Tweeting about your crazy Saturday night party when you were supposed to be caring for the children? Updating your status about your date night with your new girlfriend, before you have separated from your wife? While you are posting about these things, opposing counsel is downloading your personal information from Facebook and Twitter and preparing to use it in court.

The moral of the story? Think before you post. Refrain from commenting about your spouse, his lawyer, the judge, the guardian ad litem. Do not post pictures of any content that can be used against you in court, including partying, gifts to or from new signifcant others or places you should not be. You'll be better off for it, and your lawyer will thank you.

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On June 3, 2009 the New Hampshire Supreme Court released its opinion In the Matter of Kathaleen A. Dufton and Terry L. Shepard. The Court held that even where a natural parent relinquishes rights to his or her child in an adoption proceeding, she retains the right to petition a court for visitation of any grandchildren because she is the “natural” grandparent under the grandparent visitation statute. A grandparent is still subject to the requirements of the grandparent statute, and there must be an absence of a nuclear family and the grandparent must show that the proposed visitation is in the child’s best interests.

In this case, Kathaleen Dufton gave birth to her daughter, Vicki Shepard, when she was sixteen years old. She relinquished her rights to Vicki by giving her up for adoption. Vicki reunited with her biological mother when she was twenty-six year old and the two had a close relationship from that point forward. Kathaleen Dufton shared all the special occasions with her daughter including the birth of her grandchildren, vacations, baptisms and birthdays. When Vicki fell ill with cancer her mother was by her side until the end. After Vicki died, her husband, Terry Shepard, refused to allow Kathaleen to see her grandchildren. Kathaleen sought relief from the court under the grandparent visitation statute.

Parents have a constitutional right to raise their children as they see fit, including who may visit with their children. However, the legislature has crafted a grandparent visitation statute, allowing the family courts jurisdiction to order visitation over a parent’s objection when there is an absence of a nuclear family and if it is in the best interests of the child. Terry sought to have Kathaleen's petition dismissed, asserting that Kathaleen was not a “natural grandparent” of the children because she had relinquished her rights to Vicki, and therefore did not have standing to seek relief as a grandparent. However the court ruled that the plain meaning of the term “natural” was “biological” and therefore “the fact that the grandmother relinquished her parental rights to the children’s mother when the mother was an infant has no bearing, per se, upon her ability to seek visitation with the grandchildren.” Furthermore, the court found that her status as a grandparent was not derivative of her legal status as a parent to her child, and because she is related to her grandchildren, the grandparent visitation statute gives her standing to seek the visitation.
 

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

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I seem to be blogging a lot lately about co-parenting issues. In a search today on google for co-parenting communication ideas, I came across a blog titled Dad's House: Dating & Parenting by a Single Dad. David Mott recently posted Co-Parenting - How to Deal with an Ex. As a single dad who has been co-parenting his children with his ex for nine years, David offers tips on co-parenting. They are basic rules of engagement that should be followed in any co-parenting relationship, and are the rules that are offered throughout the blogosphere and by parenting experts across the country. David lists the following rules:

• Do what’s in the best interest of your kids

• Don’t talk down to each other

• Do treat the co-parenting as a business relationship Don’t fight in front of the kids

• Do use email

• Don’t badmouth the other parent in front of the kids .

• Do communicate 

Arguments, fights, blow-ups and disagreements will happen in every relationship, especially parents who have split up. (probably for good reason). However, if both parents can follow the rules of engagement, maintain a business like tone and keep lines of communication open, your kids will be healthier and happier for it. In the end, David reminds, focus on co-parenting and practice the basics.

If you would like more information regarding basic co-parenting concepts and rules, single mommy and daddy blogs abound with similar tips.  Jennifer Wolf gives similar advice in planning coparenting meetings at Tips for Succesful Co-Parenting Meetings. Aside from blogs, check out the Co-Parenting Surivival Guide: Letting Go of Conflict After a Difficult Divorce by Dr. Elizabeth and Dr. Jeffrey Zimmerman, the University of New Hampshire Cooperative Extension's Co-Parenting After Divorce.

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During the pendency of a divorce or parenting petition, when communication between parents breaks down, parents often go to their attorneys or the guardian ad litem to resolve conflicts regarding parenting issues. However, when the dust settles, the case is over and the attorneys and GAL are no longer involved, parents are left to resolve conflicts on their own. Often high-conflict parents will end up back in court over issues that they cannot agree upon.

As an alternative to heading back to court, parents should consider hiring a parenting coordinator who can assist them in resolving disputes and implementing their parenting plan. The parenting coordinator can also work with the parents on developing more effective communication skills, collaborative parenting methods and problem solving techniques. The parenting coordinator is not counseling, a guardian ad litem investigation, or a parenting education course.

The Parenting Coordinators Association of New Hampshire lists a few dozen professionals, including attorneys and mental health professionals, who serve as parenting coordinators. PCANH website provides the following information about the parenting coordinator process:

The Parenting Coordinator will typically meet with the parents, individually and/or jointly. The parents’ concerns will be identified, the family situation will be assessed with the aid of court orders and documents, and a course of action will be identified, including the setting of specific goals for resolution of conflicting issues. Emails and phone calls are used to assist the parents' work toward the goals. Additional individual or joint meetings may be scheduled and other people with information may be contacted.

For more information about parenting coordinators, the process and the price, check out the PCANH's list of FAQs.

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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.

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One of the most important things that parents in separate households can do for their children is cooperatively co-parent. Successfully co-parenting allows both parents to be involved in a child's day to day life. I recently came across a useful article published by the University of New Hampshire Cooperative Extension titled "Co-parenting after Divorce."

If you are currently going through a divorce or parenting case, take the opportunity to discuss your parenting rights and responsibilities, and the roles that each of you will play. Work those discussions into your parenting plan. The article provides a detailed chart with questions about household expectations, education and moral upbringing, peers and social considerations and health care decisions that you and the other parent can use to start the discussions.

Additionally, consider the road that you and the other parent do not want to go down. One of the most important aspects of co-parenting is keeping the children out of the middle. The article points out that:

Problems may develop if parents send messages to each other through their children. Problems also arise when a parent talks negatively about the other parent. Children may feel guilty and unsure of their parents’ love when they’re caught in the middle.

If a parent asks about a former spouse, children may report that things are fine, even if they’re not. Or children may say things to make one of the parents feel bad. Again, don’t use your children by putting them in the middle. If you want to know something about your ex-spouse, ask that person yourself. 

Explore these behaviors that you and the other parent agree you will both avoid, and work any agreements into the parenting plan as well.

 Finally, remember that you and the other parent probably will not agree on every issue. 

Accept that you and your ex-spouse may differ on key parenting issues. Try to work on finding common ground, especially on the most important issues. Communicating about a few issues is better than not having communication at all.

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On March 5, 2009 the New Hampshire Supreme Court released its opinion on In the Matter of Jamie Huff and Lawrence Huff. This is an important decision, in that it defines parental rights and plainly rules that the family courts do not have jurisdiction to award visitation to an unrelated third party over the objection of a fit parent. It is important to note that although the court may not award an unrelated third party visitation, New Hampshire does have statutory authority for awarding grandparents and step-parents visitation with children.

The facts of the case are as follows: Jamie and Lawrence married and in July of 2006 their son was born. During subsequent divorce proceedings, Lawrence was sentenced to three to six years in State Prison. At the final hearing Lawrence requested one full weekend of parenting time a month with his son  even though the prison visiting hours were only on Saturdays for a few hours. Lawrence planned to have one of two close friends facilitate visitation and have his son spend the rest of the weekend with his two other children. In other words, Lawrence wanted to essentially delegate his remaining parenting time to Kristen or Cheryl. The trial court adopted Lawrence’s proposed parenting plan, over Jamie’s objection.

Jamie appealed the decision to the NH Supreme Court arguing that the award of parenting time to a third party over her objection infringes on her fundamental right to parent her son. The NH Supreme Court first noted that the trial court did not expressly grant visitation to a third party but they granted visitation to an incarcerated father who then delegated his visitation to a third party. The court also examined the effect incarceration has upon parental abilities and whether or not this type of handing over visitation to a third party is equivalent to granting that third party visitation outright.

Ultimately the Court held that the incarcerated parent may not designate a third-party caregiver, over the objection of the other parent, absent a finding that the non-incarcerated parent is unfit. Where both parents are fit, the trial court may only award the incarcerated parent that visitation time which he can actually exercise. In this case, neither Jamie nor Lawrence has been declared unfit. Thus, the trial court’s authority is limited to awarding visitation to the incarcerated father that he can actually use to visit with the child. Time allocated to Lawrence beyond that, which is then delegated to a third party, is equivalent to awarding an unrelated third party visitation rights.

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

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On January 30, 2009 the NH Supreme Court released the opinion for In the Matter of Joseph Goulart, Jr. and Marcia Goulart in which the Court held that parents are not free to waive the provisions of the statute that prohibit any child support order requiring a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school. The Court urged the legislature to reexamine the statutory language regarding approval or enforcement of a stipulated parenting plan in order to take into consideration a situation where the divorcing parties are fully informed, represented by counsel and mutually agree that one or both will voluntarily contribute to their adult child’s college expenses.

Joseph and Marcia divorced in 2005 while their son was still a minor. Part of their final divorce decree incorporated a Stipulated Parenting Plan, negotiated with counsel, which included a provision stating:

 

The parties are aware of the statutory provisions prohibiting the Court from ordering any parent to contribute to expenses for an adult child. Despite this prohibition the parties agree that Joseph shall be responsible for payment of the son’s college educational expenses.

 

In 2007, Joseph filed a motion to define his obligation regarding college expenses for the same reasons he cited before. There was a hearing and the family division ruled that Joseph was expected to assist with college expenses as agreed to in the Parenting Plan.

 

Joseph appealed that decision to the NH Supreme Court, contending that the family division has no authority to enforce the college education funding obligation because the court lacked subject matter jurisdiction to enter such an order under NH RSA 461-A:14, V. The statute reads: “No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school.”

 

The Court agreed with Joseph that the statute deprived both the superior court and the family division of subject matter jurisdiction to either approve or enforce a provision in a stipulated parenting plan that requires parents to contribute to their adult child’s college expenses. The family division should have modified the parenting plan by striking the college expense provision.

 

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

 

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The end of January in New England can bring about a bit of cabin fever. More than ever, if you are a parent who has supervised parenting time or visits in the community, finding fun, indoor activities that do not break the bank can be a difficult task. Even for those parents without visitation restrictions, getting out of the house during the winter on a budget can take some planning. Here are some ideas to help keep the cabin fever at bay.

Local Library: Your local library can be a great resource for fun, free programs. With a library card, you can also often obtain free passes to local museums. And of course, the library has lots and lots of books to read together as a family.

 

·         Manchester Public Library

·         Concord Public Library

·         Nashua Public Library

·         Portsmouth Public Library

·         Keene Public Library

·         Database of New Hampshire’s over 230 libraries

 

Manchester Boston Regional Airport: Kids love airplanes, and luckily you do not have to buy a plane ticket for your children to enjoy them. Manchester Boston Regional Airport has an observation deck that is the perfect place to watch the planes land and take off together. Additionally, on the airport grounds is a free aviation museum in an old 1937 airport terminal.

 

·         Manchester Boston Regional Airport

·         New Hampshire Aviation Museum  

 

Local Museums: Although most museums in the area charge an admission, many often have a free family event/night. For example, although The Children’s Museum of New Hampshire charges a $7 admission, the museum is hosting a Free Family Fun Night on Friday, February 6, 2009 from 5:30 p.m. to 8:00 p.m. Check with your local museums about their free or discounted activities.

 

·         Currier Museum of Art, Manchester, NH

·         Enfield Shaker Museum, Enfield, NH

·         Kaleidoscope Children’s Museum, Concord, NH

·         The Children’s Museum of New Hampshire, Dover, NH

·         Strawberry Banke, Portsmouth, NH

·         Millyard Museum, Manchester, NH

·         Wright Musuem, Wolfeboro, NH

 

Indoor Play Places: There are several indoor play places through the state that don’t cost a thing. The Mall of New Hampshire recently installed a new, enclosed playground in the food court with slides and puzzles. Chuck-E-Cheese’s is admission free, and has great skytubes and play areas for kids to run and jump. And of course, McDonald’s and other fast food restaurants offer play places for kids to let loose.

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Although either parent may apply for their minor child’s U.S. passport, U.S. law requires the signature of both parents, or the child’s legal guardians, prior to the issuance of the passport for a child under the age of 16. Both parents must either appear in person to request the passport, or the non-applying parent may sign a form before a notary public granting permission for the issuance of a passport. Alternatively, the parent applying for the passport must document his/her sole authority to obtain a passport for the child. In order to comply with the law, Passport Services will require evidence of one of the following:

• sole custody
• a court order allowing the parent to travel with the child
• a written statement under penalty of perjury that the other parent agrees to issuance or is unavailable
• a termination of the other parent’s parental rights
• or compelling humanitarian reasons relating to the welfare of the child

Additionally, the law provides two exceptions to the above requirements: (1) for exigent circumstances, such as those involving the health or welfare of the child, or (2) when the Secretary of State determines that issuance of a passport is warranted by special family circumstances.  

For more information, the U.S. Department of State’s website on children and family is a great resource.

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Attorney Steven Ballard's Massachusetts Divorce & Family Law Blog gave a recent shout out to Wicked Local Parents, an online parenting resource that also publishes a free monthly parenting magazine called P&K. Wicked Local Parents is filled with great content, with ideas for family fun to a wide array of parenting advice columns. You can also pick up your free copy of P&K in several locations through Massachusetts.

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An article in the Boston Globe today exemplified why you should always follow the golden rule when posting on the internet: If you don't have anything nice to say, don't say it all. According to the Boston Globe:

A man accused of making unflattering online comments about his former lover and her attorney on Craigslist has been charged with two counts of criminal libel. The The case began when a woman told Loveland police in December 2007 about postings made about her between November and December 2007. Court records show posts that suggested she traded sexual acts for legal services from her attorney and mentioned a visit from child services because of an injury to her child. [The man], confronted by detectives at his workplace in August, said he was "just venting," according to court records.

"Just venting" can get you into a lot of trouble, not only with the police as this man found out, but also with the family court. Blogs, status updates and "rants and raves" on Myspace, Facebook and Craigslist often make their way before the court, to the detriment of the posting party. So, however tempting it is to vent to your online pals, don't.  

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Managing a family schedule from two households can be quite a chore. Online parenting software may be the answer for some separated or divorced parents to communicate and co-manage their children’s schedules. The services, which are either internet based or downloadable, offer a wide range of options for parents to choose from. The most complex have photo sharing, family journals, time-tracking, expense logs and more. These are generally fee based services. Others are simply online calendars geared towards family planning and scheduling but may not meet the needs of parents who have a difficult time communicating with each other.

 

Our Family Wizard: This particular service is geared towards separated, divorced and living apart parents. All information saved to the site is backed-up and secure. This is a service that would be useful to parents who find that their challenge is communicating with one another.

 

o   Features:

The parent account allows access to:

Private and Shared Family Calendar

Message Board

Notifications and Reminder

Journal

Information Bank

Important Documents

Expense Log

Family Resource Section

E-Coupons

The child account allows each child their own account with access to:

Shared Family Calendar

Message Board

Create and View Journal Entries

Receive Notifications and Reminders

 

o   Price:

      $55.00 for six months (approx. $9.17/month)

      $99.00 for one year (approx. $8.25/month)

                              $179.00 for two years (approx $7.46/month)

 

ParentingTime.net: This is the home of OPTIMAL which is the Online Parenting Time Information Manager and Access Log. OPTIMAL is a one year subscription based service which is geared for custody arrangements. Its central focus is on the “Tracker” module which records and tracks parenting.

 

o   Features:

Custody calendar

Child Support Tracker

Private Message Center

Graphs & Statistics

Print & Export

Tasks & Notes

Time Tracker

Private Journal

‘At a Glance’ Homepage

Contacts & Address Book

Personal Preferences

Guest User Features

 

o   Price:

$149.95 for a 1-year unlimited access subscription billed yearly

 

JointParents.com: This service is marketed as having been developed by co-parents and is said to be easy to use and readily accessible. There is a Free 30 day Trial Period for interested users.

 

o   Features:

Custody Calendar (Reminders, recurring events, email approvals for custody changes; color coded parenting days)

Daily Routine (Household rules and routines)

Contact Manager (Allow others to access)

Diary (History of occurrences between co-parents and children)

Message Board

Medical Manager

Multiple Families (Manage children with one or multiple families)

Overnight Reporting (Displays # of overnights with child)

Photos

Expense Tracking (Enter and track expenses, view total owed, show paid/not paid, email notification)

o   Price:

30 day free trial available

$9.95/monthly payments

$99.50/annually (2 months free)

 

FamilyCrossings.com: This online service is not solely directed towards separated, divorced and living apart parents, but rather a service that provides each family with its own website. You can visualize family data with maps, time lines and tag clouds. Family Crossings offers both a free and subscription service.

 

o   Features:

Free: This version offers less storage space and has sponsor   advertisements visible. Families can access a number of features that could be helpful in family organizing and information sharing.

News

Photos

Calendar

Address Book

Live IM style chat

Gift Center

Storage – 150MB

Premium: Families have more storage space and no advertisements. There are also six more features than the free version. You can also add storage space if need be.

News

Photos

Calendar

Address Book

Live IM style chat

Gift Center

Family history

Family Database

Wish List

Family Polls

Special Offers

Games

Storage – 250MB

o   Prices:

The premium version is $9.95/month

 

CustodyToolbox.com: This is a downloadable Windows program that is designed for custody situations.

 

o   Features:

Calendar

Child Information

Journal

Parenting-time Report

To-Do List

Address Book

 

o   Price:

15 day free trial available

$49.95 to purchase the software

 

Cozi.com: This is a free online service that helps manage a family’s schedule. This is not geared specifically towards divorced, separated or living apart parents.

 

o   Features:

§  Family Calendar

§  Customizable Lists

§  Reminders & Messages

§  Mobile access

§  Journal

§  Photo collage

§  Outlook sync

 

o   Price:

§  Free

 

Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.

 

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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.

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As discussed in a previous blog post, in New Hampshire every parent is required to take the Child Impact Seminar within 45 days of the date that the Respondent (formerly known as Defendant) is served with the divorce or parenting petition. I have received a few e-mails recently asking where to sign up, so I thought I would post the telephone numbers and websites for each local provider here. There is also additional information about the Child Impact Seminar available on the Family Division website.

BELKNAP COUNTY          Laconia 524-1100 Genesis Behavioral Health

CARROLL COUNTY          Conway 447-2111 Carroll County Mental Health Services

Wolfeboro 447-2111 Carroll County Mental Health Services

CHESHIRE COUNTY         Keene 355-3071 Cheshire Mediation

COOS COUNTY                Groveton 636-2555 Northern Human Services

GRAFTON COUNTY          Lebanon 448-0126 West Central Behavioral Health

Littleton 444-5358 Northern Human Services

Plymouth 536-1118 Genesis Behavioral Health

HILLSBOROUGH COUNTY Manchester 628-7787 The Mental Health Center

Nashua 598-7155 x 3900 Community Council of Nashua

MERRIMACK COUNTY      Concord 226-7505- x 3262 Riverbend Parent Child Center

ROCKINGHAM COUNTY    Exeter 431-6703 Seacoast Mental Health Center

Portsmouth 431-6703 Seacoast Mental Health Center

Salem 434-1577 CLM Behavioral Health

STRAFFORD COUNTY      Dover 749-3244 x732 Community Partners

SULLIVAN COUNTY          Claremont 448-0126 West Central Behavioral Health

Newport 448-0126 West Central Behavioral Health

 

 

 

 

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After going through the divorce process, for many couples the last thing that they want to do is have regular contact with their ex-spouse. However, for divorcing couples with children, it is extremely important to maintain communication to effectively co-parent your children. Successfully co-parenting means that both parents will maintain an active, stable role in their children's day to day lives and that the children will be happy and healthier for it.

One technique that parents may try is scheduling a weekly parenting phone call. Instead of several phone calls a week that occur at inconvenient times and break down into arguments, focus communication into one business-like phone call per week. Unless there is an emergency, wait to discuss all issues at the parenting call. The parent with the children should make the phone call to insure that the children are out of ear shot, such as after bedtime.

Plan an agenda for the call, including the following topics:

• Discuss the upcoming parenting schedule
• Discuss the children's extracurricular activities and school schedules
• Discuss academic issues such as homework and report cards
• Discuss any behavioral issues
• Discuss any general concerns

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

·       What you can do to help your children adjust

·       The impact of violence or chronic conflict upon children

·       Behaviors to avoid

·       Helpful communication styles

·       Effective co-parenting skills

·       How to be a role model

·       Alternative dispute resolution

·       Important points to remember

Blog Credit: Marisa Ulloa, Crusco Law Office Law Clerk

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

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

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

· Court Process

· Case Management

· Child Impact Program

· Case Manager

· Guardian ad Litem

· Mediation

· Legal Representation

· Parenting Plans

· Child Support

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

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Jurisdiction is the authority of a court to hear particular types of legal matters. If the court does not have jurisdiction, then it may not hear the case. In cases involving interstate custody disputes, New Hampshire has adopted the Uniform Child Custody Jurisdiction Act under NH RSA 458-A. The Act is designed to avoid competition and conflict between courts of different states. Also, it ensures that litigation over custody takes place in the jurisdiction where the child and family have the closest connection and where significant evidence is most available.

The provisions of 458-A:3 lay out the circumstances in which New Hampshire will assume jurisdiction over child custody determinations:

1.      New Hampshire is the child’s home state (1) or has been for six consecutive months before the custody proceeding starts and a parent or person acting as parent continues to live in New Hampshire.

2.      It is in the best interest of the child that New Hampshire assume jurisdiction if the child and parents or the child and at least one contestant have significant connection with New Hampshire and within the state there is substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

3.      New Hampshire will assume jurisdiction if the child is physically present in this state and has been abandoned or it is necessary in an emergency to protect the child.

4.      If it appears that no other state would have jurisdiction or another state has declined to exercise jurisdiction on the ground that New Hampshire is more appropriate to determine the custody of the child, and it is in the best interest of the child then New Hampshire will assume jurisdiction.

Therefore, except in emergency/abandonment  situations or when no other state would have jurisdiction, the physical presence of the child, or of the child and one of the contestants, is not alone sufficient for New Hampshire to have jurisdiction. In other words, a parent removing a child from one state and coming to New Hampshire may not be able to immediately seek custody orders from the court.  

Other significant provisions under the Act are:

·    If at the time of filing a petition in New Hampshire there is a proceeding simultaneously pending in another state, New Hampshire will not exercise jurisdiction 458-A:6.

·    New Hampshire courts shall recognize and enforce the decree of a court of another state which had assumed jurisdiction 458-A:13.  

·    If a court in another state has made a custody decree, New Hampshire will not modify it unless: (a) it appears that the state which rendered the decree no longer has jurisdiction or has declined to assume jurisdiction and (b) New Hampshire now has jurisdiction 458-A:14.
 

 

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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

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Clients often ask about including in their parenting plan a provision requiring both parents to contribute to a child’s extracurricular activity expenses and uninsured medical expenses. These issues were brought before the New Hampshire Supreme Court In the Matter of Cheryl Anne Coderre and Paul A. Coderre on September 30, 2002. The father appealed an by the trial court that ordered him to pay for his children’s uninsured medical expenses and extracurricular activity expenses in addition to the child support ordered under the child support guidelines.

First, the Court determined that uninsured medical expenses are extraordinary expenses that are not included in child support guidelines. The Court looked at the statute regulating child support RSA 458-C and determined that the calculations under the guidelines are presumed to be correct but that the court may adjust the guidelines either upward or downward if it deems this deviation is warranted. More specifically looking at RSA 458-C:5, I(a) which states that the trial court “may deviate from the guideline support amount if it finds that a child will incur ongoing extraordinary medical expenses.” Therefore, the Court upheld the trial court’s order for payment of uninsured health insurance.

Additionally, the Court held that “extracurricular activity expenses are part of basic guidelines support” because they fall into the same category of such basic support as food, shelter and recreation. Because there is no language to the contrary in the guidelines the Court concluded that extracurricular activity expenses are included in the parties’ total support obligation. Therefore, the Court reversed the trial court’s decision on this matter.

In sum, a court has discretion to award uninsured medical expenses that are separate from the child support award determined by the guidelines. On the other hand, extracurricular activity expenses are considered to be included in the child support guidelines and may not be awarded separately.

Blog credit: Marisa L. Ulloa, Crusco Law Office Law Clerk

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Summer is finally here with vacation plans, summer camps and trips to the grandparents in the works.  I read a great blog today by Attorney Robert L. Mues of the Ohio Family Law Blog reminding parents who will be away from their children to sign a medical authorization for caregivers. Although doctors may provide treatment in a truly life threatening situation, the medical authorization will insure that your child will receive the medical treatment he or she needs in a timely manner without lots of red tape.

Attorney Mues was kind enough to share his emergency medical authorization with readers.

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On this blog, we review new domestic relations cases that are issued by the New Hampshire Supreme Court such as the recent Lemieux and Gendron and Plaistek opinions. However, there are many older opinions which are worth reviewing periodically. Here, we will review the case In the Matter of Tatjana A. Donovan and Robert F. Donovan which was issued on April 1, 2005.

The major crux of the case deals with a section of the stipulation which required both parties to contribute to their children’s educational expenses through college in an amount proportionate to their respective incomes. Robert asked the trial court to strike this portion of the parties divorce decree in light of the passage of House Bill 299, which provided: "No child support order shall require a parent to contribute to an adult child’s college expenses or other educational expenses beyond the completion of high school." RSA 461-A-14, V. The trial court refused, and Robert appealed the order.

The New Hampshire Supreme Court determined that as general rule statutes apply prospectively rather than retroactively. In other words, orders made prior to February 2, 2004, the day that the new statute became effective, that required a parent to contribute to a child’s college expenses were enforceable. Therefore, although no new orders may require contribution by a parent to a child’s college expenses, orders made prior to February 2, 2004 remain effective.

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

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Can a same-sex couple adopt a child together in New Hampshire? The question, although simple, does not have a simple answer. Currently, the laws in New Hampshire leave the question open to interpretation.

As I have blogged about previously, New Hampshire is one of four states that recognizes a civil union. New Hampshire's civil union statute confers "all the rights and [is] subject to all the obligations and responsibilities provided for in state law that apply to parties who are joined together" in marriage.  However, the adoption statute allows for a "husband and wife together" or an "unmarried adult" to adopt. The adoption statue, when strictly interpreted, does not reflect the changes in the law regarding civil unions.

At this point, different judges have different interpretations of the adoption and civil union statutes. Until the legislature addresses the issue and revises the adoption statute to reflect the new civil union law or a case goes up to the supreme court, a same-sex couple may encounter a bump in the road towards adoption. For those proactive about such issues, you can contact your local state representative and bring the issue to their attention.

 

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New Hampshire law categorizes parenting rights and responsibilities into two groups: decision making responsibility and residential responsibility. These are the new terms for what used to be called "legal custody" and "physical custody," and have been called such since October 1, 2005 when the new statue went into effect.

Decision making is defined as the "responsibility to make decisions for the child." Basically, they are the major decisions about how the child will be brought up. The decisions include the choices a parent makes about a child's education, medical care, religion. Parents may be awarded joint decision making responsibility, so that the parents should agree on the care and upbringing of their child. Alternatively, one parent may be awarded sole decision making responsibility.

Residential responsibility means "a parent's responsibility to provide a home for the child." The parenting schedule will determine what type of responsibility each parent has, whether sole, primary or shared responsibility. The day to day decision making, including the ability to make emergency medical care decisions, rest with the parent the child is with at that time.

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The New Hampshire Supreme Court released an opinion today In the Matter of Kevin Gendron and Jody Plaistek that held that a voluntary acknowledgement of paternity executed in Massachusetts must be given full faith and credit and that the trial court erred in ordering genetic marker testing. The voluntary acknowledgement of paternity signed by both parents had all ready established the father as the legal father to the child, and therefore there was no need for further proof of paternity to establish parenting rights and responsibilities.

The court noted that it had made similar rulings in Watts v. Watts, which held that a father was precluded from seeking blood tests to disprove his paternity fifteen years after the children's births. In Watts, the court found that to allow the father to escape liability for support by blood tests would ignore his lengthy, voluntary acknowledgement of paternity. Here, the court noted that although the mother was seeking to disprove paternity, the result should not be any different than that in Watts.

Today's opinion should serve as a warning to anyone who voluntarily signs an acknowledgement of paternity. If there are any doubts or questions regarding paternity, seek legal counsel prior to signing the acknowledgment  because it may preclude the ability to reopen the issue of paternity in the future.

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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.

 

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Besides baseball and daffodils, spring is also the time for college financial aid applications. A recent post from Jennifer Weisberg Millner on the NJ Family Legal Blog regarding the responsibility of parents for their children's college expenses highlighted how different laws are from state to state. Although parents in New Jersey may be ordered to pay for their children's college tuition and expenses, in New Hampshire, no court order shall require a parent to pay for educational expenses beyond high school. However, under the NH Supreme Court's decision in Donovan, a court may enforce orders made prior to February 2, 2004 (the date that the law went into effect) that required a parent to to pay for college.

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