New Hampshire Family Law Blog

Sukerman: Accidental disability benefits are marital property subject to equitable division

Kysa Crusco — Wed, 20 Jan 2010 10:16:26 -0500

In the last session of 2009, the New Hampshire Supreme Court issued its opinion In the Matter of Michele Sukerman and William Sukerman, in which the court held that accidental disability pension benefits are subject to equitable distribution in divorce proceedings. Court litigants should keep in mind that this case does not govern how accidental disability benefits or other marital assets will be divided, but rather holds that any property not excluded by law is thrown into “the pot.” How it will be divided is subject to the specific facts and circumstances of each case, and the factors set forth in RSA 458:16-a

William Sukerman was an employee at the Massachusetts Port Authority (MassPort) Fire and Rescue in Boston from 1991 until a heart attack forced him into retirement in 2008. Upon retirement William began receiving a pension under the Massachusetts retirement system which consisted of an ordinary pension benefit, an annuity and an accidental disability pension benefit. The final divorce decree of the Derry Family Division awarded Michele one-half of the William’s entire “pension plan which accrued between the date of the marriage . . . and the date of the filing of the petition for divorce.”

William argued on appeal that the accidental disability benefit should not have been included in the marital property distribution because it was compensation for lost earning capacity as well as pain and suffering. The court disagreed, and took a “mechanistic approach,” under which all property acquired during the marriage “without regard to title, or to when or how acquired is deemed to be marital property unless it is specifically excepted by statute.” There is no such exception for accidental disability pension benefits in RSA 458:16-a.

The court concluded that this so-called mechanistic approach “best comports with New Hampshire’s equitable distribution law,” under RSA 458:16-a, which provides that “all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title is held in the name of either or both parties” is subject to equitable distribution. Consequently, the Sukerman case stands for the proposition that so long as there is no specific statutory authority excepting accidental disability benefits from property settlement, such benefits, being acquired during marriage, are marital property and therefore subject to distribution.

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

Collecting electronic evidence in divorce and parenting cases: Is it legal and/or admissible?

Kysa Crusco — Tue, 19 Jan 2010 07:00:00 -0500

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.

Tax season tips for divorcing couples

Kysa Crusco — Tue, 12 Jan 2010 21:33:44 -0500

For the next three months, the 2009 tax season is upon us. For divorcing couples, whether to file separately or jointly, who will claim the children and how to address alimony can add even more stress to the divorce and to tax season. However, Attorney Nancy Van Tine of the Massachusets Divorce Law Montior offers these five simple tax tips:

Child support is not tax deductible. If you pay the child support, you pay the taxes.
Alimony is tax deductible to the payor, and taxable to the payee.
Property settlement, or property transfers, pursuant to a divorce decree are not taxable. However, as Attorney Van Tine points out, this is only true for opposite sex marriages. Same sex marraiges have different rules as Attorney Van Tine blogged about here.
Transfers of pensions can be transferred without any tax consquences through a Qualified Domestic Relations Order (again, only if your are in a opposite sex marriage).
The IRS has five tips for recently married or divorce taxpayers regading name changes.

I would add to Attorney Van Tine's list these tips:

If you do not have a court order regarding the child tax credit, then you must follow the IRS rules. Specifically, the parent who has residential responsiblity and parenting time more than 50% of the time is entitled to claim the child.
If your divorce decree has not been issued prior to December 31st, you may file jointly or separately. However, if your divorce is final by December 31st, you cannot file jointly. Take a look at IRS Publication 504 for more information.

What not to wear ... to court

Kysa Crusco — Tue, 05 Jan 2010 22:14:52 -0500

I came across a must read post by Robert Mues of the Ohio Family Law Blog about how to dress for court. With all the preparation going into your case, planning your attire is probably not high on your priorities. However, it is an important part of your presentation and the impression that you make on the judge can have a lasting effect.

Case in point: I was sitting in court waiting for one of my cases to be called and watching a hearing in progress. The case was a parenting action, with two pro se parents appearing before the judge on a contested temporary hearing. The mother appeared neatly groomed and dressed, and seemed reasonable and articulate when presenting her case. The father, on the other hand, was dressed in torn cargo shorts, a thin, white tank top and work boots. He appeared sloppy and careless, and despite the fact the he seemed to have some good points about his case, it was hard to overlook his exterior when assessing his credibility. A pair of slacks or khaki pants and polo shirt would have gone a long way.

Attorney Mues advises litigants to dress as they would for church or an important job interview. Good advice. I would add that you should not overdress either. If you work as a mechanic, and rarely dress in a suit, steer clear. If you are an accountant and go to work every day in a suit, it is a good choice. Pick an outfit that will give a good impression, but an outfit that you will feel comfortable with and fits your personality and profession.

So, while you are going over your testimony, reviewing your proposed orders and preparing your exhibits, take a few moments to pick out and press your clothing for court. Making that good impression will kick start a good presentation to the judge.

Sexters Beware! Evidence of infidelity in the digital age

Kysa Crusco — Thu, 17 Dec 2009 22:43:34 -0500

Unless you have been living under a rock the last few weeks, you have come across the Tiger Woods story. The car crash, the rumors of domestic violence, and, of course, the cheating. According to reports, Elin discovered the affair by going through Tiger's phone records. Jaimee Grubbs, one of Tiger's many mistresses, has come forward with more than 300 flirty, steamy text messages as evidence of the affair. As smartly phrased by Laura Holson of the New York Times, text messages are the new digital lipstick on the collar.

Tiger is not the only person of notoriety to be caught by a text message. Detroit's former major, Kwame Kilpatrick, went to jail after lying about an affair with an aide and then having sexually explicit test messages surface. Senator John Ensign was caught having an affair when his mistresses husband, who was also his aide, found text messages on Senator Ensign's phone. And the list goes on and on.

Otherwise intelligent men and women seem to believe that the digital evidence of their trysts disappear into the ether with their texts, never to be seen again. That is, until your spouse or her attorney dig it up. Daniel Clement, of the New York Divorce Report writes:

In the end, text messages are just the latest tool in the arsenal to catch cheating spouses. Telephone records, emails and charge card receipts have long provided clues to affairs. E-Z passes and Metro-card, too, provide a time stamped trail of where someone has been. It is only time until some spouse finds his significant other “tagged” in an embrace or some other compromising position on someone’s Facebook page.

So, especially in the State of New Hampshire where divorcing spouses may plead fault grounds, sexters beware! Evidence of infidelity in the digital age is easy to find, and divorce attorneys know where to look. The evidence will most likely come to light before or during your divorce. If you do not want to be caught, refrain from the affair.

How to work with a Guardian ad Litem

Kysa Crusco — Tue, 08 Dec 2009 06:00:00 -0500

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.

Muchmore & Jaycox: A parenting plan may not be modified solely on "best interests"

Kysa Crusco — Mon, 07 Dec 2009 12:00:00 -0500

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.

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

Kysa Crusco — Fri, 06 Nov 2009 23:16:18 -0500

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.

New marital master assignments coming soon

Kysa Crusco — Thu, 05 Nov 2009 08:45:58 -0500

Effective upon the opening of the new Manchester Family Division on November 12, 2009, the Administrative Office of the Courts has announced the following changes to the Family Division marital master assignments:

Marital Master Bruce Dalpra
Dover Family Division
Brentwood Family Division (2-3 days per month)

Marital Master Robert Foley
Rochester Family Division

Marital Master Nancy Geiger
Manchester Family Division

Marital Master Leonard Green
Franklin Family Division
Hooksett Family Division

New Marital Master
Manchester Family Division

Maine repeals same-sex marriage law:

Kysa Crusco — Wed, 04 Nov 2009 22:23:11 -0500

Yesterday Maine voters repealed the state’s same-sex marriage law, six months after the law was passed by the legislature. In doing so, Maine became the thirty first state to oppose same-sex unions in a popular vote. Five states, Iowa, Connecticut, New Hampshire, Massachusetts and Vermont are performing same-sex marriages, with the District of Columbia and New York recognizing the marriages but not performing them. New Jersey and California allow for civil unions.

Question 1, brought forward pursuant to the “people’s veto” process in Maine’s constitution, asked voters “Do you want to reject the new law that lets same-sex couples marry and allows individuals and religious groups to refuse to perform these marriages?" 53% of voters approved Question 1, about the same margin of victory as California’s Prop 8. Maine’s same-sex marriage law was put on hold after the proponents of Question 1 collected the required signatures to put the question to a popular vote.

What does this mean for Maine residents? Same-sex partners are still vulnerable without the financial and legal protections that a civil union or marriage offers. Maine’s same-sex couples must be very detailed in their estate planning, partnership agreements, and legal status as parents of any children of the relationship. Additionally, Maine residents must carefully consider the ramifications of seeking a civil union or marriage in other states. Although New Hampshire and Massachusetts are just quick drives across the Piscataqua River, entering into a legal relationship that cannot be dissolved in your own state can have very dire consequences.

Vaccinating your children for the H1N1 flu? It is a joint decision to be made with your co-parent.

Kysa Crusco — Thu, 29 Oct 2009 06:00:00 -0500

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

Rights of the non-accused, non-custodial parent in abuse and neglect cases

Kysa Crusco — Wed, 28 Oct 2009 21:37:37 -0500

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.

Holidays are just around the corner, are you prepared?

Kysa Crusco — Tue, 27 Oct 2009 21:09:16 -0500

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.

Finally! Family Division comes to Manchester

Kysa Crusco — Wed, 23 Sep 2009 08:00:00 -0500

The Family Division is finally scheduled to open its doors in Manchester on November 12, 2009. Currently, domestic cases are scattered throughout the courts, with divorce, parenting and child support cases in Superior Court, juvenile matters in District Court and guardianships and termination of parental rights cases in Probate Court. In contrast, the Family Division courts have subject matter jurisdiction over all of these range of cases as listed in RSA 490-D:2 in one court. The family division hears actions for divorce, legal separation, civil union dissolution, parenting, domestic violence protection, delinquency, CHINS, abuse/neglect, termination of parental rights, guardianship of minors, and adoption actions which relate to any of the following: abuse/neglect, guardianship, or termination of parental rights proceedings.

Late this fall, all of these family cases from Hillsborough North Superior Court, Hillsborough Probate Court and the Manchester District Court will be consolidated into one court that will be located in the Manchester District Court at 35 Amherst Street, Manchester, New Hampshire. All Manchester cases will transferred to the Manchester Family Division, as well as cases from Amherst, Bedford, Lyndeborough, and Mont Vernon which will be heard temporarily in the Manchester Family Division until they are relocated to Merrimack or Milford in the next phase of the family division.

If you have a hearing scheduled after November 12, 2009 in a domestic case in the Hillsborough Superior or Probate Court or the Manchester District Court, make sure you check in with your court to confirm where your hearing will be.

Termination of parental rights in New Hampshire

Kysa Crusco — Fri, 04 Sep 2009 07:00:00 -0500

“Surely there can be few loses more grievous than the abrogation of parental rights.” Those words are as true today as they were when Supreme Court Justice Blackmun first wrote them in Lassiter v. Department of Social Services in 1981. Unfortunately, there are times, however grievous, when it is necessary to terminate parental rights against a parents wishes. There are also times when rigorous defense against a petition to terminate parental rights is warranted.

The United States Supreme Court has long recognized the right and the heavy responsibility of the states to terminate the parent-child relationship when there is cause to do so. In New Hampshire, RSA 170-C provides for involuntary termination of parental rights, and the probate courts, and now also the family divisions, have exclusive jurisdiction over such termination of parental rights matters. If the court orders a termination of parental rights, the effect is to sever all legal rights, privileges and duties between the parent and the child. The two become legal strangers in the eyes of the law, with neither parent or child owing any obligations to the other at any point in the future.

A termination petition may be filed, pursuant to RSA 170-C:4 by:

a. Either parent;

b. The child’s guardian or legal custodian;

c. The child’s foster parent if the child has resided with that foster parent continuously for 24 months; or

d. An “authorized agency,” which in termination of parental rights petitions would be the Division for Children, Youth and Families, or DCYF.

Additionally, the statute sets forth limited conditions on which such a petition may be brought. RSA 170-C:5 lists six circumstances under which a petition for termination of parental rights will be granted:

a. The parents have abandoned the child

b. The parents have substantially and continuously neglected to provide the child with the care necessary for mental, emotional, or physical health when they are financially able to do so

c. The parent(s) have failed to correct conditions that lead to a violation of the Child Protection Act, within twelve months of such a finding

d. The parent is, and will continue to be, mentally incapable, either by deficiency or illness, of caring for the child

e. The parent knowingly or willingly caused, or allowed to be caused, severe sexual, physical, emotional or mental abuse of the child

f. The parent has been convicted of any of the following crimes:

a. The murder of another child of the parent, a sibling or step-sibling of the child, or the child's other parent;

b. The manslaughter of another child of the parent, a sibling or step-sibling of the child, the child's other parent;

c. Attempted murder of the child, step-child, sibling or other parent; or

d. A felony assault which resulted in injury to the child, a sibling or step-sibling of the child, or the child's other parent.

Courts will consider the best interest of the child in rendering a decision, sometimes appointing a Guardian Ad Litem to represent that interest. However, even if the court determines that the child’s best interests are served by terminating a parent’s rights, that finding alone is not sufficient to order termination. A court must make an explicit finding under the statute that one or more of the above criteria has been satisfied. The United States Supreme Court states: in Santosky v. Kramer:

The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the 14th Amendment, and does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.

The Santosky court also held that, except for clear cases of abuse, the government should not separate children from their families or countermand parental authority.

Because termination affects a fundamental constitutional right for parents to raise their children as they see fit, New Hampshire courts have increased the burden on the petitioner to prove that TPR is appropriate. In State v. Robert H., the New Hampshire Supreme Court made it clear that for the termination of parental rights, the standard to be imposed is proof beyond a reasonable doubt that 170-C:5 has been satisfied. It is fitting that the petitioner must meet this highest burden as “the rights of parents (over the family) are held to be natural, essential and inherent rights, within the meaning of the New Hampshire Constitution,” the New Hampshire Supreme Court states. “The permanent termination of the rights of parents over their children is even more final than involuntary commitment or delinquency proceedings” both of which require that heightened standard; no other standard would be appropriate.

The above discussion merely scratches the surface of these intricate and complicated issues. Each case has its own set of unique facts and circumstances. The termination of parental rights is extremely serious, and for that reason, as well as those cited above, it is very important that you retain competent counsel if you are involved in a TPR action, whether as the parent or the petitioner. Contact Crusco Law Office, PLLC for further information.

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

New Hampshire court's decision regarding home schooling grabs national attention

Kysa Crusco — Wed, 02 Sep 2009 20:15:42 -0500

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.

Four new superior court judges nominated

Kysa Crusco — Tue, 18 Aug 2009 16:32:41 -0500

Governor Lynch has nominated four new superior court judges, including Hillsborough County Attorney Marguerite Wageling, Richard McNamara, a civil litigator from Wiggin & Nourie, PA, David Garfunkel of Gallagher, Callahan & Gartrell, PC, and Jacalyn Colburn of the New Hampshire Public Defender. Each nominee must be confirmed by the Judicial Counsel.

Source: Union Leader Hillsborough County Attorney prosecutor among four new judges.

Grandparents rights in New Hampshire

Kysa Crusco — Thu, 13 Aug 2009 14:39:06 -0500

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.

Divorce & Social Media: Think before you type!

Kysa Crusco — Wed, 05 Aug 2009 21:04:39 -0500

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.

Top 10 reasons a court may invalidate a prenup

Kysa Crusco — Fri, 24 Jul 2009 20:12:23 -0500

A premarital agreement, also called antenuptial agreement, is a written contract entered into in contemplation of marriage. A prenup can protect your separate property and address the division of assets in the event of divorce or death of a spouse. Findlaw has a short article listing the top 10 reasons a premarital agreement may be found invalid. The original article has more details on each point that is worth reading through, but here are the reasons in short that a prenup may be invalidated:

NO WRITTEN AGREEMENT
NOT PROPERLY EXECUTED.
YOU WERE PRESSURED.
YOU DIDN'T READ IT.
NO TIME FOR CONSIDERATION.
INVALID PROVISIONS.
FALSE INFORMATION.
INCOMPLETE INFORMATION.
NO INDEPENDENT COUNSEL.
UNCONSCIONABILITY.

Each state has very specific laws about prenuptial agreements. In New Hampshire, a prenup is generally presumed to be valid unless a party proves circumstances such as 1) fraud, undue influence, duress; 2) failure to disclose a material fact; 3) that the agreement is unconscionable; 4) or circumstances have rendered it unfair. In order to protect the validity of any prenup, parties desiring a prenuptial agreement should contact a seasoned New Hampshire attorney.

Source: Attorney Stephen Worrall's Georgia Family Law Blog post "Top Ten Reasons a Premarital Agreement May be Invalid"