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.

Republished here, my opinion from the recent Bar News regarding the appointment of counsel for parents in abuse and neglect proceedings:

Few rights can be argued to be more fundamental then the right to raise and care for one’s children. In recognition of that right, New Hampshire has long appointed counsel to represent indigent parents in abuse and neglect proceedings who face the removal of their children from their care by the State. The NH Supreme Court recognized in Shelby R. that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships."

Despite the constitutional protections afforded to parents, recent passage of HB2 [the budget "trailer bill"] and the issuance of Circuit Court Administrative Order 2011-01 deprives indigent parents accused of abuse and neglect of the statutory right to be represented by an attorney at all stages of the proceedings. The Administrative Order prohibits any new appointments of counsel after July 1, 2011, and orders the automatic withdrawal of counsel after the issuance of dispositional orders for attorneys appointed prior to July 1, 2011. However, legislative enactments cannot override a constitutional protection and the Courts have an affirmative duty to invalidate a statute that violates a person’s constitutional rights.

Fundamental fairness requires government conduct to conform to the community’s sense of justice, decency and fair play. Without the protections of counsel, a parent facing allegations under the Child Protection Act stands little chance of defending himself against the state. As the U.S. Supreme Court wrote in Gideon v. Wainwright, "even an intelligent and educated layman has small and sometimes no skill in the science of law." Oftentimes the parents involved in abuse and neglect cases are uneducated, unsophisticated, frightened and do not have the wherewithal to understand the process. They have no skills in asking questions, raising objections, or admitting evidence. They lack knowledge of the law and are at an extreme disadvantage when questions of law arise.

On the other hand, the State, in presenting its case, has the ability, funds and know-how to subpoena witnesses, hire expert witnesses, obtain medical or psychological evaluations of the children or the parents, and investigate the claims and allegations involved in a petition. The State employs attorneys to put on the State’s case and act on its behalf. The parent’s fundamental, natural and essential rights require that counsel be appointed to assist a parent in mounting their defense and protecting their rights.

Additionally, abuse and neglect proceedings can have the most serious of consequences to parental rights: the termination of parental rights. As the NH Supreme Court wrote in State v. Robert H., "the loss of one’s children can be viewed as a sanction more severe than imprisonment." The abuse and neglect proceedings become the grounds upon which the state relies on in a termination of parental rights proceeding. The finding of abuse or neglect, the parent’s progress throughout the case, the status of the parent’s compliance with the dispositional orders, and the alleged failure of a parent to correct the conditions that led to the finding of neglect are the framework of the state’s TPR case. Without counsel guiding and protecting the parent in the underlying abuse and neglect proceeding, appointing counsel in the TPR is too little too late to safeguard the parent’s constitutional rights.

In contrast to other state cuts that have drawn the attention of the media and the public, the prohibition on appointed abuse and neglect counsel for indigent parents has captured little notice. Few of us can imagine the state coming into our home and removing our children, and not having the financial ability to protect our rights and family and advocate for the return of our children. The elimination of parent attorneys is shameful act by a legislature willing to sacrifice justice for the bottom line. As this opinion goes to publication, abuse and neglect parent attorneys across the state are mounting a challenge, and the support of the Bar and the public is crucial to its success. In the meantime, parents will have to navigate the abuse and neglect system without advice of counsel and try their best to advocate for themselves and their children.

Grandparent’s rights vary from state to state. In New Hampshire, grandparent’s visitation rights are specifically designated by statute. However, obtaining visitation is not as easy as filing a petition and being granted time with one’s grandchildren. In order to comply with the U.S. Supreme Court’s holding in Troxel v. Granville, which struck down a breathtakingly broad Washington state statute that allowed any third party to sue for visitation over the objection of the parents and the outcome determined solely by the judge’s estimation of the child’s best interests, New Hampshire restricts the situations in which a grandparent can petition to establish visitation.

In order to pursue grandparent visitation, there must be an absence of a nuclear family, “whether divorce, death, relinquishment or termination of parental rights, or other cause.” Prior to the recent New Hampshire Supreme Court opinion In Re Athena D., it was unsettled whether a new nuclear family, brought about by the termination of parental rights and the adoption of the child, would cut off the rights of natural grandparents to visitation. The take away from Athena D. is that “petitions for grandparent visitation in the case of termination of parental rights are to be treated in the same manner as in the case of the death of a parent, stepparent adoption, or unwed parents.”

The Athena D. holding is especially important for the protection of society’s most vulnerable children. Children who are the subject of cases brought under the Child Protection Act, and subsequently state-action termination proceedings, may have indispensable bonds with their natural grandparents that must be preserved. While the children may need to be protected from the parents, and adopted into a new family, a child’s best interest may demand continued contact with the natural grandparents over the objection of the adoptive parents. This holding allows for that, so long as the grandparents meet the other requirements of a petition for grandparent’s visitation rights as set forth in RSA 461-A:13.

I am pleased to announce that I have been accepted as a member of the Collaborative Law Alliance of New Hampshire. Collaborative practice is an alternative to the traditional, adversarial family law litigation process. Lawyers and clients agree from the beginning to keep the case out of court and settle it through a series of 4-way meetings. Instead of negotiating under the threat of court or on the eve of trial, lawyers and parties are freed from those constraints and are able to focus on alternative and creative solutions to meet each parties needs.

CLANH makes the point that the collaborative process benefits a client by:

  • Avoiding the expensive and lengthy court and litigation process.
  • Retaining a relationship of mutual respect while moving apart with dignity.
  • Reaching a settlement that both parties are comfortable with.

If the process breaks down, and the parties are not able to resolve the case, each lawyer is disqualified from representing their client in court. Each party must find a new attorney to litigate the case. This is an important aspect of the collaborative process because it gives incentive to remain committed to the collaborative process.

Both parties must have collaborative trained lawyers. Talk to your spouse or partner about collaborative practice, and have them research "collaborative law" or "collaborative practice." Download for them the free Collaborative Divorce Knowledge Kit from the International Academy of Collaborative Professionals. Ask them to speak to a lawyer trained in collaborative practice (a list of New Hampshire lawyers can be found here).

If you are interested in more information about the collaborative process, please contact my office at 603-627-3668 or through the contact form on this blog.

New Hampshire has long recognized that a parent’s right to raise and care for one’s child is a fundamental constitutional right. In recognition of that right, there has been a statutory right to counsel for parent’s facing termination of parental rights proceedings and in abuse and neglect cases. In addition to the statutory authority, the New Hampshire Supreme Court has held that stepparents who are accused of abuse or neglect, and are household members, have the right to counsel if they cannot afford one.

However, the state’s budget, which has passed the house and the senate and Governor Lynch has announced his intention to allow it to become law without his signature, changes the statutory authority and the ability of the state to pay for appointed counsel for parents in abuse and neglect cases. HB2, Section 79 strikes the portion of RSA 169-C:10, II(a) mandating the court appointment of an attorney for accused, indigent parents in abuse and neglect proceedings. On June 23, 2011, Judge Kelly, the administrative judge for the Family Division, issued an administrative order that orders as follows:

  • Until June 30, 2011, attorneys shall continue to be appointed to represent an indigent parent only where mandated by RSA169-C:10, II(a), i.e. in cases where an indigent parent is alleged to have neglected or abused his or her child.
  • Effective July 1, 2011, counsel shall not be appointed for indigent parents in abuse and neglect cases under RSA chapter 169-C.
  • Effective July 1, 2011, all appointments of counsel, including existing appointments, to represent indigent parents in abuse and neglect cases shall terminate upon the issuance of the dispositional order pursuant to RSA 169-C:19.

Though the legislature may believe that they can simply defund and eliminate the statute requiring appointed counsel for indigent parents, I would argue that they are wrong. In addition to the statutory protections that have been afforded to indigent parents in abuse and neglect case, the New Hampshire Constitution protects parents. The Shelby Court held that "due process requires the appointment of counsel to a stepparent accused of abuse or neglect under RSA chapter 169-C." The Court recognized that "abuse and neglect proceedings can harm, and in some cases irreparably damage, family and marital relationships." While the Court has consistently held that a natural parent’s role in family life is a fundamental liberty interest under the constitution, due to the statutory protections requiring the appointment of counsel for accused parents, the Court has not yet been called on to recognize the due process right of a parent to counsel in abuse and neglect proceedings. However, given the holding that accused stepparents are entitled counsel, it is difficult to imagine that a parent would not have the same due process right. 

What happens from here? I expect that a constitutional challenge will be brought, in one of a variety of methods, and the Supreme Court will be called upon to recognize a parent’s constitutional right to counsel in abuse and neglect proceedings. Until then, parents will have to navigate the abuse and neglect system without advice or counsel and try their best to advocate for themselves and their children.

Blog posts have been sparse lately, and here’s why: Administrative Order Number 2011-03. I’ve posted several times about the impending demise of the GAL fund, and it is finally coming to fruition. Judge Kelly’s administrative order, issued on April 19, 2011, requires GALs in  all GAL fund  marital cases (this excludes abuse/neglect, TPR, guardianship and CHINs) to complete investigations, file final reports, final billing and withdrawals by June 1, 2011.

And let me tell you, that is a ridiculous amount of work to complete in just over a month. It feels like finals week in college or law school, only worse. Instead of finishing up five term papers, I have thirteen reports. It is extremely frustrating to be thrust involuntarily into such a situation because the court system cannot be properly funded by the legislature. 

In the end though, it is the children of indigent New Hampshire Families who will suffer the consequences. They will no longer have a voice in the courtroom, and judges will have to sift through pro se he said she said in trying to determine a child’s best interest. And that’s a shame for New Hampshire.

Need a legal question answered? The New Hampshire Bar Association’s Lawline, a free legal advice call service, has upcoming dates in 2011. Lawline is on the second Wednesday of each month from 6:00 pm to 8:00 pm., at 800-868-1212.

Weds., June 8, 2011
Weds., July 13, 2011
Weds., Aug. 10, 2011
Weds., Sept. 14, 2011
Weds., Oct. 12, 2011
Weds., Nov. 9, 2011
Weds., Dec. 14, 2011
 

The Guardian ad Litem fund took a step closer to extinction when the House Finance Committee voted last night to ok HB1 and HB2 and send it to the House for a full vote. The House budget cuts $742 million in spending from the current two-year budget. Among those cuts is the Guardian ad Litem fund, through which GALs are paid on family cases where parents cannot afford to pay upfront for GAL services and so they pay through the fund.

HB2 makes the following changes regarding the GAL Fund:

65. Guardian ad Litem Fees. Amend RSA 461-A:16, IV to read as follows:

IV. The fees for services for the guardian ad litem and others utilized by the guardian and approved by the court shall be a charge against the parties in a proportional amount as the court may determine. [ Where the parties are indigent, compensation for guardians ad litem and others utilized by the guardian and approved by the court shall be based upon the applicable fee schedule established by the supreme court for indigent defense counsel. ]

66. Liability for Expenses. RSA 461-A:17 is repealed and reenacted to read as follows:

Amendment to HB 2-FN-A-LOCAL

461-A:17 Guardians ad Litem and Mediators; Liability for Expenses. The 1 judicial council shall have no responsibility for the payment of the costs of a mediator or guardian ad litem for any party under this chapter.

67. Reference Deleted. Amend RSA 21-I:7-b to read as follows:

21-I:7-b Unit of Cost Containment. There is established within the office of the commissioner of administrative services a unit of cost containment. The unit of cost containment shall be responsible for all functions and duties authorized under RSA 604-A, regarding payment, recoupment and monitoring of indigent defense funds. [It shall also be responsible for all functions authorized under RSA 461-A:18 relative to recouping guardian ad litem funds.] The commissioner is authorized to employ personnel as necessary to accomplish the duties and functions of the unit of cost containment.

69. Repayment of Mediator and Guardian Ad Litem Fees. Amend RSA 461-A:18, I to read as follows:

I. In any case where a mediator has been appointed pursuant to RSA 461-A:7 or a guardian ad litem has been appointed pursuant to RSA 461-A:16 and the responsible party’s proportional share of the expense is ordered to be paid by the judicial council from the special fund established pursuant to RSA [461-A:17] through the unit of cost containment, office of administrative services, the fees and expenses paid on the party’s behalf as the court may order consistent with the party’s ability to pay, such ability to be determined by the unit of cost containment.

73. Child Protection Act; Guardians ad Litem. Amend RSA 169-C:10, I to read as follows:

I. In cases brought pursuant to this chapter involving a neglected or abused child, the court shall appoint a [guardian ad litem or] Court Appointed Special Advocate (CASA) or other approved program guardian ad litem for the child. If a CASA or other approved program guardian ad litem is unavailable for appointment, the court may then appoint an attorney or other guardian ad litem as the guardian ad litem for the child. The court shall not appoint an attorney for any guardian ad litem appointed for the child [, but may appoint an attorney or any other qualified individual as the guardian ad litem for the child]. The CASA or other approved program guardian ad litem shall have the same authority and access to information as any other guardian ad litem. For purposes of this paragraph, “unavailable for appointment” means that there is no CASA or other approved program guardian ad litem available for appointment by the court following a finding of reasonable cause at the preliminary hearing held under RSA 169-C:15 so that the child’s interests may effectively be represented in preparation for and at an adjudicatory hearing.

 How will the elimination of the GAL fund affect the judicial branch and families?

• When the court has safety concerns about a child and cannot appoint a GAL using the fund, the court will turn to DCYF to investigate the concerns. This will increase the work required of DCYF and expend state resources.

• Trials and hearings will take longer and require more courts resources. Currently, GALs speak to witnesses, review records and report the information to the court in a clear, concise manner. Without a GAL, litigants will bring into court teachers, therapists, family and friends to give testimony. Litigants will submit volumes of emails, medical records, school transcripts and more for the court to sift through. This will increase the time required of the court to hear the case.

• Fewer cases will settle, necessitating more hearings and trials. Currently, once a GAL issues a report or recommendation, litigants are often able to enter into settlement discussions using the opinion of the GAL as a case evaluation. Without that process, litigants will settle less often and in turn take up court resources with more motions and hearings.

• Because trials will take longer and occur more often, the court system will suffer longer delays. Currently, the wait for a two day divorce trial in the Brentwood Family Division is over one year from the time that it is scheduled. Without the GAL fund, parties will have to wait even longer for a resolution to their case.

• Indigent litigants will be denied access to justice that litigants who can afford to pay up front for a GAL will have. The court system has never discriminated on the basis of income, and it should not start now.

There are alternatives to the elimination of the GAL fund. One alternative is the state doing a better job of collecting the funds that parents owe for GAL services. My understanding is that the fund requires about 1.8 million to run each year. The judicial branch collects $240,000 in filing fees for the GAL fund. In addition, the office of cost containment collects about $350,000 from parents who use services. This leaves a shortfall of roughly 1.2 million. This gap could be closed more effectively recouping the funds from litigants.
 

If the elimination of the GAL fund concerns you, contact your House representative and ask that the GAL fund be preserved or at the very least the effects of defunding it should be studied in committee before acting.

Tomorrow, March 16, 2011, the New Hampshire Supreme Court will issue its opinion in the New Hampshre homeschooling case. The case of Martin Kurowski and Brenda Voydatch has grabbed national headlines and sparked much debate about the right to home-school. In this matter, a divorced mother and father could not agree on whether their daughter should be home-schooled by the mother,  and so a trial was held and a judge issued an order requiring the child to attend public school. The mother appealed, arguing, among other issues, that she has a consitutional right to home school her child.

The Supreme Court heard oral arguments in this matter on January 6, 2011. The justices asked some hard questions and made some interesting points, including:

  • On the issue of a constitutional right to home-school, Justice Lynn asked the mother’s attorney: The cases you cite were state v. parent, but in this case the state has been forced to settle a dispute between to parents, is there not a difference?
  • Justice Dalianis questioned whether the Court needed to decide the constitutional issue of home schooling if the court decides that the trial court’s order was a modification subject to the Muchmore standard.
  • Justice Duggan asked the mother’s attorney how schooling is a religious right. Further, "if there is no constitutional right to home-school, do you lose?"
  • Justice Conboy distinguished residential and decision making responsibility, and questioned whether the modification standard applies when the court has to settle a decision making dispute. She asked, "if the parents have joint decision making and they do not agree, then what happens?"

Check here on March 16th for the opinion. For links to the parents’ appellate briefs, click here.

On February 25, 2011, the New Hampshire Supreme Court issued an opinion in the matter of Leone v. Leone, which deals with a court’s discretion to hear telephonic testimony. In this case, the parties were a married couple with three children who resided together in Mississippi until the mother moved with the children to New Hampshire. About a month after the mother moved to New Hampshire, she filed a domestic violence petition requesting a restraining order against the father.

At a hearing on the restraining order, the mother appeared in person with an attorney and the father appeared telephonically with his attorney present in the courtroom. After the mother’s testimony, the father requested, through his attorney, that the Court allow him to testify telephonically. The court denied the request, and stated, on the record:

I’m having a problem with that. I do not usually allow people to testify telephonically. I have to judge their demeanor, their credibility. If they’re not in front of me, how can I do that?

 

I’m not going to allow it. I do not allow telephonic testimony. Never have, never will.

The father appealed, questioning whether the court erred in denying the father’s request to testify telephonically. The Supreme Court held that the court did err, concluding that a blanket exclusion of all telephonic testimony was an abuse of discretion. Instead, the court should have weighed and considered the specific circumstances of the case that would call for telephonic testimony, including:

  • the ability of the witness to travel to New Hampshire, weighing feasibility and cost
  • the nature of the proceedings
  • the consequences facing the party/witness
  • whether the court has the technical capability of accommodating such a request
  •  whether the other party objected to the telephonic testimony
  • alternative methods of testimony, such as teleconferencing or an offer of proof through an attorney, would

In short, the Supreme Court determined that there had to be an objective basis for denying the telephonic testimony. An interesting caution in the case is the note that the Leone case does not hold whether the telephonic testimony would be admissible, and sites the Kansas case of In the Estate of Broderick. That argument is left for another day.