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

When the Massachusetts Supreme Judicial Court issued the Goodridge decision legalizing same-sex marriage in the Commonwealth, many people inside and outside the state became concerned about couples coming from other states to marry in Massachusetts. In the first few days of same-sex marriage, marriage licenses were issued to non-residents, and have resulted in decisions such as Chambers v. Ormiston which held that Rhode Island courts did not have jurisdiction to hear a divorce case between two people of the same-sex because the state did not recognize the marriage.   

However, Governor Mitt Romney quickly dusted off the Marriage Evasion Act M.G.L.A. 207 § 11. This law was enacted in 1913 and prohibits the marriage of a non-resident in Massachusetts if the marriage would be illegal in their home state. Governor Romney ordered town clerks to strictly enforce the law when handing out marriage licenses.

The original intent of the law is unknown for there is no record of the legislative history. However, the law was enacted during a time when the majority of states (30 out of 48) outlawed interracial marriage, and it is commonly believed that this law was meant to smooth relations between Massachusetts, which has allowed interracial marriage since 1843, and those states that banned such marriages. Massachusetts State Senator Harry Ney Stearns sponsored the 1913 Law on March 7, 1913 and the bill was signed three weeks later by Governor Eugene N. Foss

On July 15, 2008 the Massachusetts Senate voted to approve a bill that will repeal the 1913 law and the House is expected to vote in the near future. Repealing the law paves the way for out-of-state same-sex couples to marry in Massachusetts. Opponents argue that repealing the law meddles in the internal affairs of other states, forcing them to recognize gay marriage, and creates a legal limbo for families. On the other hand, proponents argue that the law should be repealed as a “vile and antiquated remnant of prejudice and bigotry.”

How will the repeal of this bill affect New Hampshire residents? As previously discussed on this blog, New Hampshire allows civil unions and recognizes out-of-state marriages as civil unions. If the Massachusetts house votes to repeal the law, New Hampshire residents may marry in Massachusetts, and return home to have their marriage recognized as a civil union.

There are many in-depth articles chronicling the path of Massachusetts in repealing this law and its effect on same-sex marriage. Some of these articles are below:

·         A 1913 Law Dies to Better Serve Gay Marriages

·         Will the State of Massachusetts Ever Permit Same Sex Out-of-Staters to Marry?

·         Massachusetts Senate Votes to Repeal Law Barring Out-of-State Couples From Marrying

·         Senate Votes to Repeal 1913 Law

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.

Today the Massachusetts Supreme Judicial Court issued an opinion in the case of Charron v. Amaral that held that marriage benefits for same-sex couples do not apply retroactively to the Goodridge v. Department of Public Health  decision.

The case involves a couple, Michelle Charron and Cynthia Kalish, who began dating in 1990, moved in together in 1992 and subsequently bought a house together and had a child that both partners adopted. The couple also exchanged rings in a private ceremony in 1994 and obtained a marriage license in 2004 on the first day such licenses were available to same-sex couples. Charron sought treatment for a lump in her breast in 2002, was diagnosed with breast cancer in 2003 and died in 2006. The claim arose as a malpractice case for loss of consortium.

The plaintiffs argued that, but for the ban on gay marriage, they would have been married at the time the malpractice claim arose in 2002, and therefore the loss of consortium claim should be applied retroactive to the Goodridge decision. The SJC disagreed, and held that it was clear that Goodridge was intended to apply prospectively because it was such a radical change in the law that it required time for the legislature to act. Furthermore, the court found that:

to allow Kalish to recover for a loss of consortium if she can prove she would have been married but for the ban on same-sex marriage could open numbers of cases in all areas of law to the same argument.

Although this case involves a malpractice/loss of consortium claim, the opinion has ramifications for divorce matters in Massachusetts. It is likely that, as a result of the Charron decision, same-sex couples who are divorcing will be barred from arguing that but for the ban on same-sex marriage, the couple would have had a long term marriage retroactive to Goodridge. The difference between a long term marriage and a short term marriage can have ramifications on the property division and alimony awards.

I found a great post by Michael Sherman of the Alabama Family Law Blog titled The Style of Your Divorce Lawyer: The Lamb, the Pitbull and the Fox. As Attorney Sherman discusses in his blog, I am also frequently asked by prospective clients if I will be aggressive or act like a tiger. The better question to pose is what is your style of lawyering and how will that impact my case? Attorney Sherman identifies three types or attorneys: the lamb, the pitbullI, and the fox. I prefer the fox:

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

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

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

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.

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

Child support in New Hampshire is calculated according to a formula set forth in RSA 458-C:3. The percentage of the parties’ income that will be the root of the calculation is based on how many children are receiving support.

Number of Children Percentage of Net Income 
1 = 25 percent 
2 = 33 percent 
3 = 40 percent 
4+ = 45 percent

·           The total support obligation is calculated by multiplying the parents’ total net income by the percentage allocated for each child. You can find the definition of “net income” under RSA 458-C:2 VI.

·           Once the total support obligation is determined that amount will be divided between the parents in proportion to their incomes.

·           Parents’ income is adjusted in the formula for certain expenses that are allowed under the statute, such as child support obligations for other children, health insurance paid for the child(ren), state income taxes, and daycare expenses.  

·           There is a “self-support reserve” when calculating child support. The “self-support reserve” means the poverty level standard of need as established by the department of health and human services for a single individual living alone. If the paying parent’s gross income is less than the self-support reserve and the court has determined that the parent is not voluntarily unemployed or underemployed, the court will order the minimum support order, which is $50.00. Additionally, if the paying parent’s gross income is greater than the self-support reserve, but the calculated support payment reduces the paying parent’s income below the reserve, the paying parent’s share is presumed to be the difference between the self-support reserve and the adjusted gross income but no less than the minimum $50.00 support order.