Parenting Rights & Responsibility

Nuclear families often have annual holiday traditions. A family may spend each Thanksgiving with paternal grandparents, Easter with a favorite uncle and Christmas Eve at church services with maternal grandparents. Kids look forward to these annual traditions.

However, if parents divorce, kids are split, often into alternating holidays. A traditional holiday parenting schedule may look something like this:

  • Easter: even years with mom, odd years with dad 9 am to 6 pm
  • July 4th: even years with dad, odd years with mom 9 am overnight to 9 am
  • Halloween: even years with mom, odd years with dad 9 am overnight to 9 am
  • Thanksgiving: even years with dad, odd years with mom 9 am to 6 pm
  • Christmas Eve: even years with mom, odd years with dad 12 pm overnight to 12 pm
  • Christmas Day: even years with dad, odd years with mom 12 pm overnight to 12 pm

While this schedule may provide the opportunity to have holiday time every two years with their children, it does not have the continuity the children were used to before the divorce.

I had a client suggest an idea that I thought was brilliant. Instead of alternating, each parent would have set holidays. Under this idea, the kids could enjoy 4th of July every year at mom’s family’s summer camp, host dad’s family for turkey and football on Thanksgiving and continue going to church on Christmas Eve with their maternal grandparents. The parents could still alternate the Christmas overnight, but maintain a consistent, fixed schedule for the remaining holiday time. The parent who does not have parenting time on a holiday can still plan celebrations around a holiday. For example, the non-holiday parent can bring the children to an Easter egg hunt, fireworks, or a haunted house adventure during their parenting time.


I appreciate when judges talk to the parties at the end of the hearing. Today, following a hearing regarding disagreements about unilateral decision making and information sharing, the judge told the parties to ask themselves: Would you want to know? It is the perfect question for self-reflection in co-parenting. 

  • If a doctor needed to be selected for your child, would you want to have input?
  • If your children were traveling by airplane to a different state, would you want to have the flight, lodging and contact information?
  • If your child was going to be participating on a sports team, would you want information about cost and schedule?

It comes down to the golden rule – do unto others as you would have done unto you. 


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.


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

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

A court will look to many factors under RSA 461-A:6 when making an initial determination of parental rights and responsibilities. Provided that each parent is capable of providing a safe, loving home, one of the most important factors that will be considered is the ability of each parent to support the relationship of the children with the other parent. Three specific factors under the statute read:

  • "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, including whether contact is likely to result in harm to the child or to a parent."
  • " The support of each parent for the child’s contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent."
  • "The support of each parent for the child’s relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent."

Following the Patriots amazing Superbowl victory (Yayyyyyy Pats!!!!), I came across an article commending actress Bridget Moynahan, Tom Brady’s ex-girlfriend and the mother of his oldest child, for her gracious congratulatory tweet sent out while her son was celebrating on the field with his dad, stepmother and half-siblings:

Christine Coppa, the article’s author and a single mom writes about the difficult journey a parent must go through to come out on the other side a supportive co-parent. She observes:

Moynahan has “moved past the bitter parts that most breakups create, and onto accepting their relationship as a unique family,” relationship expert Amy Spencer, author of Meeting Your Half-Orangeand Bright Side Up, tells Yahoo Parenting. “Her son should be damn proud of his dad, and that tweet is a beautiful sign that Bridget wants to support her son that way.”

Supportive co-parenting allows the child to see her parents as a team rather than as opponents, and that is critical to their adjustment and development. As mentioned above, it can also be the decisive factor for a court when determining residential responsibility. There are numerous resources available to assist parents in the co-parenting journey. Here are some of my favorites:


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

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

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

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

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

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

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

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


Miller v. Todd, a parenting case between two parties who were never married, raised the issue of whether Supreme Court Rule 3 is unconstitutional because it treats married and unmarried parents differently for the purposes of an appeal. At the time, only parents who were married were entitled to a mandatory appeal from an initial determination of parental rights and responsibilities. A mandatory appeal provides that the case “shall be accepted by the supreme court for review on the merits.” Although an appeal from a final divorce decree or final decree on legal separation is a mandatory appeal, an initial determination of parental rights and responsibilities between unmarried parents was not.

In Miller v. Todd the Supreme Court declined to address the issue by declaring it moot. In other words, because the Supreme Court had accepted the father’s discretionary appeal for review, the issue was purely academic because he had not been harmed by having his appeal declined. The Court noted, however, that “any consideration regarding amending Rule 3 should be accomplished in accordance with the rule-making procedures set forth in Supreme Court Rule 51, thereby providing the public, the bench and the bar an opportunity to offer comments and suggestions.”

On April 4, 2014, the Supreme Court adopted new rules, including an amendment to Supreme Court Rule 3 that now provides a mandatory appeal for “the first final order issued in, or arising out of, a domestic relations matter filed under RSA Title XLIII (RSA chapters 457 to 461-A).” The comments to the new rules identify the change results from the claim raised in Miller v. Todd that “providing for mandatory review of appeals involving married parents but discretionary review of appeals involving non-married parents raises constitutional concerns."

The Supreme Court issued In Re Deven O. on November 7, 2013.

The Facts

Deven was born in June 2006 and lived with his parents until they split up in December 2006. Deven lived with his mother and visited with his father a few days each month until December 2007, when father was arrested and incarcerated for armed robbery. Mother visited father in prison, but Deven visited just once. When father was released to a half-way house in June 2010, father visited with Deven multiple times per week over the next three months. In September 2010, mother told father that she did not want him visiting with Deven until he “straightened out his life.”

In October 2010, mother filed a petition to change Deven’s name. Although she knew father had been released from prison, she listed father’s address as the prison. Father found out about the name change in December 2010 after she posted about it online. Father contacted mother that month to arrange for Christmas gifts. In March 2011, father began to attempt to arrange for parenting time with Deven by calling mother. He also contacted mother’s father for help try to arrange visits. When these efforts failed, he filed a parenting petition in December 2011. Mother countered by filing a petition to terminate father’s parental rights.

Following a trial, the court terminated the father’s parental rights on the grounds of abandonment and failure to support, and made a finding that the termination was in Deven’s best interest. 

The Appeal

The father appealed the trial court’s decision, arguing that the evidence was insufficient to show, beyond a reasonable doubt, that there were grounds to terminate his parental rights. The father also asserted that he had no legal obligation to support the child because he was not listed on the birth certificate and there was no child support order. 

The Holding

The Supreme Court held that the mother failed to sustain her heavy burden and that there was insufficient evidence to support the termination of father’s parental rights. Parental rights are a fundamental liberty interest that cannot be pushed aside because a person has not been a model parent. The Court emphasized that a finding that six months passed without communication between the parent and child is only the first step in the analysis, and the trial court must consider the totality of the circumstances to determine whether the presumption of abandonment has been rebutted. The Supreme Court reminded trial courts to consider whether the parent’s conduct "evidences a willingness to take on responsibility and concern for the child’s physical and emotional care and well-being." Here, although there was a six month period without contact, the evidence of father’s repeated efforts to make contact with Deven prior to his filing of a parenting petition rebutted the presumption.

The Court also considered the mother’s refusal to allow access to the child. The Court looked to its opinion in In Re Sheena B., where the court determined that there could be no abandonment where the separation between a parent and child was caused solely by the other parent. Thus, the Court held, when considering the father’s efforts to see Deven and the mother’s refusal to allow the contact, that there was “insufficient evidence to support a finding of a settled purpose to abandon the child.”

The Supreme Court notes that the statute does not define, nor has the Court addressed, what it means to be “financially able” to provide a child with necessary subsistence, education or other care as RSA 170-C:5,II. However, here, the Court did not need to address this issue because it found that the evidence was insufficient to prove, beyond a reasonable doubt, that father was financially able but failed to support Deven.

The Takeaway

Deven O. was third in a string of termination of parental rights cases the New Hampshire Supreme Court issued opinions on in 2013. See In re Sophia-Marie H. & In re Faith T. All were private terminations where a parent or guardian sought termination of the rights of a parent (as opposed to DCYF initiated case). In each case, the Supreme Court emphasized that parental rights are “natural, essential, and inherent” within the meaning of the Constitution of New Hampshire and refused to terminate parental rights. Parental rights cannot be ignored because a person has not been an ideal parent.  These three cases act as a large neon caution sign for trial courts in termination proceedings.

The New Hampshire Supreme Court has often reiterated that parental rights are “natural, essential, and inherent." Such fundamental liberty interests are not easily swept aside. It is therefore imperative to understand the law and procedures for a termination of parental rights. Check out the latest You Tube video about proving your petition for termination of parental rights.


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.