IMO Sheys and Blackburn: Can New Hampshire maintain jurisdiction over a child when it is no longer the home state?

The New Hampshire Supreme Court issued its opinion In the Matter of Mary Sheys and Eric Blackburn on July 15, 2015. 

The Facts

Mother and father married in 2005. They had two children during their marriage. When they divorced in New Hampshire in 2009, the parties agreed on a parenting plan providing mother with primary residential responsibility. Father exercised parenting time every other weekend, two afternoons per week and two weeks in the summer. In January 2013 mother told father she was relocating to Natick, Massachusetts with the children to take a new job after having been unemployed since November 2012. Mother moved the following month in February 2013. After the move, father filed in New Hampshire for primary residential responsibility and contempt. The 9th Circuit – Family Division – Manchester denied the father’s requested relief and entered a new parenting plan providing father with parenting time on alternating weekends, summers, school vacations and time in Natick as the father was available.

In December of 2013 father again asked the court to modify the parties’ parenting plan. Mother asked the court to dismiss the matter as she and the children had been residing in Massachusetts for over a year and she had already filed a motion in the Massachusetts Probate & Family Court to modify the parties’ divorce decree and parenting plan. The court granted mother’s motion to dismiss finding that it was appropriate for the court to decline continuing jurisdiction over this matter because mother and the children no longer had a significant connection with the State of New Hampshire.

The Appeal

The father appealed arguing that the trial court erred when it ruled that the children did not have a significant connection with New Hampshire

The Holding

As a matter of first impression, the New Hampshire Supreme Court held that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) New Hampshire had continuing exclusive jurisdiction to deal with the post-divorce parenting matters. The Court agreed with the majority of jurisdictions in finding a child has a “significant connection” with New Hampshire when one parent still resides in state and exercises more than de minimis parenting time in New Hampshire. The Court noted that although the mother asked the Court to affirm on the alternative grounds of inconvenient forum, this issue was never argued and the trial court never considered it.

The Takeaway

This case provides clarification that New Hampshire will continue to hear parenting matters even after New Hampshire is no longer the “home state” of the child. The UCCJEA takes a broad view. The opinion notes that most states have determined that the “significant connection” requirement in the act can be met so long as the parent that remains in the state exercises some parenting time. For example, a Georgia court found a significant connection for parenting time that was exercised every other weekend and 8 weeks in the summer. Here, the Father exercised parenting time in New Hampshire on alternating weekends, two non-consecutive weeks in the summer, five days during April vacation in even years and five days during February vacation in odd years.

This holding may make it more difficult for a custodial parent to litigate from their new state. However, the Court left open the issue of whether New Hampshire may be an inconvenient forum under RSA 458-A:18. Custodial parents may still be able to transfer the case to their new state with an inconvenient forum argument.

 

Why Same-Sex Marriage and Divorce Requires a National Solution

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

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

 

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

 

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

Hemenway: Personal jurisdiction is not required for NH court to issue domestic violence protective orders

The New Hampshire Supreme Court recently held in the case of Michelle Hemenway v. Edmund J. Hemenway, Jr. that a New Hampshire court may issue protective orders against an out of state defendant, even when the defendant committed acts from another state. This case affirms the right of the plaintiff to seek domestic violence protective orders in New Hampshire where he or she resides or is sheltered.

As background to the case, the parties resided in Florida until 2008 when Michelle moved to NH with the parties children. Michelle filed for, and subsequently received a restraining order in the Derry Family Division, pursuant to RSA 173-B. She alleged that in 2008 Edmund became verbally abusive and threatened her and her children both in Massachusetts and in Florida.

Edmund filed a special appearance contesting the jurisdiction of the family division to enter final protective orders against him. He argued on appeal that the court lacked both subject matter and personal jurisdiction over him because the underlying acts occurred in Florida and Massachusetts, not New Hampshire.

Subject Matter Jurisdiction

The court ruled that subject matter jurisdiction had been statutorily granted to the family division and that there was no territorial limitation in the statute (as there is with criminal threatening, etc in the criminal code) that would have prevented Michelle from bringing the petition where she either permanently or temporarily resides. “The fundamental logic of that statutory provision is unassailable: a victim of domestic abuse who seeks a place of refuge must be able to engage the protections of the law of the jurisdiction in which she is sheltered.”

Personal Jurisdiction

The court found that the only acts Michelle relied on in her petition occurred outside of New Hampshire. Therefore, Michelle had “failed to demonstrate facts sufficient to establish personal jurisdiction over the defendant.” However, the court held that since the protective order did not impose affirmative obligations on Edmund, instead only issuing orders protecting Michelle, personal jurisdiction is not required.  

The court recognized the principles of two landmark United States Supreme Court cases to explain the relationship between the courts and the residents of their states. Both Pennoyer v. Neff and Williams v. North Carolina provide that even if an offending party does not reside in the victim’s state, that state’s courts are not prevented from issuing orders relative to the status (whether marital status as in the above two cases or safety status as in this case) of its inhabitants. 

To require such a ruling would leave a domestic violence petitioner with two untenable choices: 1) return to the state where the abuse occurred; or, 2) “wait for the abuser to follow the victim to New Hampshire and, in the event of a new incident of abuse, seek an order from a New Hampshire court.” These two choices are clearly at odds with the purpose of RSA 173-B and New Hampshire’s interest in protecting the victims of domestic violence.

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

Uniform Child Custody Jurisdiction Enforcement Act comes to NH in December 2010

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.

Governor Lynch plans to close eight New Hampshire district courts to reduce the budget

The Union Leader's Kathryn Marchocki reports that included in Governor Lynch's budget are plans to close eight district courts across New Hampshire. Governor Lynch hopes to save 2 million dollars by closing the courthouses. However, the savings come at the cost of making access to the judicial system more difficult for families. As the Union Leader's article points out, families who would have gone to the Colebrook District Court for relief would have to drive 37 miles to the Lancaster District Court if the plan goes through.

The courts that could close are as follows:

  • Colebrook to merge with Lancaster
  • New London to merge with Newport
  • Claremont transfer operations to the Sullivan County facility in Newport
  • Plaistow to merge with Salem
  • Milford to merge with Merrimack
  • Hooksett to merge with Concord
  • Keene to transfer operations to Cheshire County facility in Keene
  • Hillsborough to merge with Henniker.

New Hampshire district courts have jurisdiction to hear domestic violence petitions, small claims, landlord tenant matters, minor crimes and violations and civil cases in which the disputed amount does not exceed $25,000. In counties that do not yet have family divisions, the district courts also hear juvenile matters. In addition, in the counties that have formed family divisions, many of the district courts house the family divisions that hear divorces, parenting petitions, child support, guardianships, termination of parental rights, abuse/neglect cases, juvenile matters, and some adoptions.

The family divisions that will be affected under Governor Lynch's plan are located in the Colebrook, Claremont and Hooksett District Courts, who will all transfer operations to other county courthouses. Additionally, families in need of a domestic violence protective order would have to travel to other courthouses to gain access to the judicial system.  

New Hampshire's Uniform Child Custody Jurisdiction Act

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.
 

 


 

[1] "Home state'' means the state where the child resides with his parent/s or a person acting as parent for at least 6 consecutive months at the time the custody proceeding starts. If the child is less than 6 months old at the time of the proceedings then “home state” means the state where the child resided for a majority of the time since birth. 

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