New Hampshire Family Law Blog

Raising Hope Custody Drama: Real or Not Real?

Kysa Crusco — Mon, 23 Apr 2012 12:47:25 -0500

One of my favorite blogs is Law and the Multiverse. The blog’s premise is to take fictional situations from movies, comic books, and televisions shows and discuss the legal ramifications by applying relevant law. Have you ever wondered whether mutants are a protected class? They have the answer. Want to know whether superheroes have a duty to rescue? Check here. Ever thought they just got the law wrong in Snakes on a Plane? You were right.

I must have had this blog on the brain while watching Fox’s comedy Raising Hope. The show ended its second season with a courtroom custody drama titled “I want my baby back, baby back, baby back.” Jimmy Chance, two year old Hope’s father, is engaged in a custody battle with Hope’s mother Lucy Carlisle, a boyfriend-murdering serial killer who survived execution. The show is very funny, and clearly this episode was going for laughs and not realism. But that didn’t stop me from rolling my eyes or yelling “come on” at some of the absurdly unrealistic depictions of family law. So I thought that I would play Katniss and Peeta’s “real or not real” game Law and the Multiverse style.

Suppressing Evidence

First up, at the start of the trial, the mother’s attorney stands and makes an oral “Motion to Suppress Evidence of My Client as a Serial Killer.” She argues that the mother’s serial killer background should be suppressed because the charges were dismissed as part of a settlement deal from Lucy’s lawsuit against the prison, and therefore technically never happened. Assuming Lucy’s attorney is making the argument based on Rule of Evidence 403, which allows the exclusion of relevant evidence if the probative value is outweighed by the prejudicial nature of the evidence. Of course the fact that Lucy is a serial killer is prejudicial to Lucy, but it is not more prejudicial than probative, and would not be excluded on this basis.

Even if the judge found that it was more prejudicial than probative, in New Hampshire family cases, the judge has the flexibility to disregard the Rules of Evidence. Pursuant to Family Division Rule 2.2, the Rules of Evidence do not apply in divorce and parenting matters. The judge may, in her discretion, apply the New Hampshire Rules of Evidence “to enhance the predictable, orderly, fair, and reliable presentation of evidence.” The evidence of Lucy’s murder spree would absolutely come in as it is critical to the determination of the child’s best interests. The verdict: not real.

Jury Trial

Next, in Raising Hope land, a jury will hear the custody trial and issue a verdict. When the evidence of Lucy’s violent past is suppressed, Jimmy and his parents are not too worried because only locals “who were living under a rock” would not recognize Lucy as the serial killer from her high-profile trial. And then they bring out a jury composed only of miners who were stuck underground during the murders and trial. The Chance’s lawyer quips that he thought it was the gentlemanly thing to do to let his opposing counsel pick the jury (The Chances should probably be looking into malpractice claims). Of course, in reality, juries do not hear family cases. In New Hampshire, a judge (RSA 490-F), marital master, or child support referee (RSA 490-F:15) preside in the family division and issue court orders. The verdict: not real.

Presence of Minors in Courtroom

The jury renders a verdict in favor of the mother, granting custody of Hope to Lucy. While the verdict is being read, Hope sits on her father’s lap. Pursuant to New Hampshire Family Division Rule 2.8 “a child shall not be brought to court as a witness, or to attend a hearing, or be involved in depositions without prior order of the Court allowing that child’s participation. To obtain permission of the Court for the presence of a child in such a proceeding, good cause must be shown.” There are some exceptions for domestic relations cases, such as adoptions (RSA 170-B:19), guardianships of children over the age of 14 (RSA 463:8 and Family Division Rule 5.4), and certain circumstances in abuse and neglect cases (Family Division Rule 4.5). However, these exceptions do not apply in parenting rights and responsibility cases like the Chance custody trial, and Hope would not be permitted in the courtroom. The verdict: not real.

Brawl in the Courtroom

Finally, after the verdict is read, Virginia and Burt, Jimmy’s parents, begin wrestling with the bailiffs and generally causing a ruckus in the courtroom. The Chances seem to remain incarceration-free despite the fracas. This kind of behavior would probably have landed Virginia and Burt in jail for direct criminal contempt. The judge must preserve and protect the dignity and authority of the court, and the Chances conduct violates such dignity and authority. The verdict: not real.

Raising Hope gets an A for laughs, but and F for realism. I’ll still tune in though.

Contempt of Court

Kysa Crusco — Wed, 11 Apr 2012 23:29:28 -0500

Throughout my years practicing law and in my role as a guardian ad litem, I often hear misconceptions about contempt. Usually I hear statements along the lines of “I don’t want a criminal record” or “if I am found in contempt I will be arrested.” This post is intended to dispel some of these misunderstandings and to set the record straight.

Contempt can be civil or criminal, direct or indirect. The difference between civil or criminal lies in the purpose of the punishment. Direct or indirect contempt contrasts between acts committed either in the presence or outside of the presence of the court.

Civil Contempt

A finding of civil contempt results in an order that is remedial, coercive and for the benefit of the other party. The punishment is intended to force the contemnor’s compliance with court orders. Examples of the consequences of a contempt finding include money fines, orders directing compliance with the court orders, or even an indefinite jail sentence until the contempt is cured. It is often said that the contemnor “holds the key to the jail in his pocket” because curing the contempt will set him free. In family matters, motions for contempt are often brought for failure to pay child support, failure to abide by the parenting schedule, or selling or encumbering property in violation of a non-hypothecation order. Jail is a remedy of last resort, and one that usually only follows repeated, intentional refusals to abide by court orders or extreme behavior. The court will usually exhaust other remedies, such as payment of the other parties’ attorney’s fees, before sending a person to jail for civil contempt. A civil finding of contempt does not appear on a person’s criminal record.

Criminal Contempt

In contrast, a person who has been found in criminal contempt does not hold the keys to the jailhouse, and remedying the contempt will not set him free. The punishment is punitive, and intended to protect and preserve the dignity and authority of the court. Indirect criminal contempt proceedings must generally follow to procedural formalities of criminal proceedings. The defendant is entitled to reasonable notice, providing a date and time for the proceeding and warning that the contempt is considered criminal. The prosecutor must prove the elements of contempt beyond a reasonable doubt, and the contemnor is entitled to counsel and holds the right against self-incrimination. If the court intends to impose a sentence of greater than six months, the defendant has the right to a jury trial.

An example of criminal contempt, and the confusion that can result between criminal and civil contempt, is the New Hampshire case of Mortgage Specialists v. Davey. Mortgage Specialists sued the defendants for violation of trade secrets. Following a preliminary injunction, the defendants destroyed documents in violation of the court order. The court found the defendants in contempt, believing that they had thumbed their noses at the trial court’s authority and thwarted the dignity of the process, and issued penalties including attorney’s fees, fines and a penalty of three times the amount of profits unjustly reaped from the violation of trade secrets. The Supreme Court vacated the finding because the defendants were not provided notice that the contempt proceedings would be criminal.

Indirect Contempt

Indirect contempt is conduct that takes place outside of the presence of the court. The court does not have first-hand knowledge. Instead, the acts of contempt must be proved through evidence. An interesting case that distinguishes direct contempt versus indirect contempt is Kristen McGuire v. Suzanne Collins. In McGuire, a litigant in a custody matter arrived at the courthouse smelling of alcohol. The court security officer approached the litigant, and a state trooper performed a preliminary breath test. The results were not provided to the litigant, or her attorney. However, when she appeared before the court for the hearing, the judge informed her that she had blown a .20, well above the legal limit. However, the litigant displayed no disorderly behavior in the courtroom. The judge sentenced to litigant to 30 days in jail for direct, criminal contempt for appearing before the court in an inebriated state. However, the sentence was overturned by the Superior Court following a filing for a writ of habeus corpus because the family division judge had not personally observed the elements of contempt. Instead, the court had to rely on the observations of the court staff and the preliminary breath test conducted by the state trooper to prove the elements of contempt. Therefore, the court did not have direct knowledge and could not conduct summary proceedings resulting in the immediate incarceration.

Direct Contempt

Direct contempt takes place in the presence of the court where the judge personally observes all of the elements of contempt. The following is a perfect example of direct contempt from Maryland in the case of Patrick Smith v. State of Maryland:

THE DEFENDANT: What is the maximum on contempt, sir?

THE COURT: What is the maxim um on contempt? If I am going to give you in excess of six months, I believe I have to give you a jury trial, is that correct . . . ?

[STATE’S ATTORNEY]: Yes.

THE COURT: Mr. Smith, I am not going to give you in excess of six months.

THE DEFENDANT: Let me tell you something.

THE COURT: What?

THE DEFENDANT: You say you won’t give me in excess of six months.

THE COURT: Yes.

THE DEFENDANT: You know what? You have been sitting up there in the trial in every hearing I have had for this far, right? From day one, you have been very prejudiced to the defense. I asked you, right, a while ago, you tried to skip out on even bringing forth an allegation. You say it is only a bald allegation. I am not asking you to believe me. I am asking you to bring forth the witnesses in this case who could testify --

THE COURT: I asked you if you had anything you want to say as to what sentence the Court should impose --

THE DEFENDANT: Yeah. You know what? You can give me six more months, motherfucker, for sucking my dick, you punk ass b itch. You should have a white robe on, motherfucker, instead of a black. Fuck you.

THE COURT: I find you in contempt again.

THE DEFENDANT: Fuck you in contempt again.

THE COURT: I find you three times in contempt --

THE DEFENDANT: Fuck you. And fuck.

THE COURT: On each charge, the Court will impose a sentence of five months to run consecutive to each other and consecutive to any sentence you are now serving or obligated to serve.

THE DEFENDANT: Yeah. You better leave now, you, Ku Klux Klan.

Other examples of direct contempt include assaulting another person in the courtroom or refusing to testify when ordered to do so. When direct contempt occurs, the court may skirt procedural formalities required of indirect contempt in light of the court’s direct knowledge of the contempt. The word “summarily” does not refer to the swiftness of the punishment, but rather the dispensing with the formalities that accompany a conventional trial such as service of process, notice of hearing, and submission of evidence. Instead, the court must give the contemnor oral notice of the contempt observed, an opportunity to speak in his defense, where after the court may issue a finding of guilty and pronounce sentence.

Understanding Same-Sex Divorce

Kysa Crusco — Fri, 27 Jan 2012 14:26:05 -0500

In November, I authored an article on same-sex marriages in the New Hampshire Bar News geared towards helping practioners understand unique issues in same-sex divorces. I reprint here the full article:

Practicing family law in one of the six states that recognizes same-sex marriage requires an understanding of the unique challenges that same-sex couples face in a divorce. Usually, a divorce provides a mechanism to dissolve the legal relationship, divide property and establish parental rights and responsibilities. Although same-sex couples can dissolve their marriage in New Hampshire, reaching a fair and reasonable property division or establishing parental rights and responsibilities is much more difficult.

Marriage & Divorce

New Hampshire practitioners have limited precedent to guide them on several thorny issues that are distinctive to same-sex couples. Ironically, one of the few cases involving same-sex relationships, which is still good law, is now inconsistent with the state’s recognition of same-sex marriage. In the Matter of Blanchflower held that adultery does not include homosexual relationships. The court based its decision on the definition in New Hampshire of adultery, which excludes all non-coital sex acts, no matter the gender of the persons engaging in the act. Thus, although other fault grounds may be pursued, adultery is off the table for same-sex divorcing couples. The Blanchflower Court noted that it was not the function of the judiciary to extend past legislation to provide for present needs.

A common dispute in same-sex divorce is the calculation of the length of the marriage. In cases where the parties’ cohabitated long term prior to the marriage, one party may attempt to tack on the cohabitation to increase the length of the marriage and impact alimony and property division. This argument stems from the claim that had the parties been able to marry, they would have. Without New Hampshire precedent, the court may look to Massachusetts for guidance, where the Massachusetts Supreme Judicial Court has held that marriage benefits apply prospectively to the legalization of same-sex marriage. In addition to the cohabitation argument, the question also remains whether domestic partnerships, like those in California or New Jersey, might be similar enough to a marriage to tack on and create a long-term marriage.

Alimony

The IRS identifies alimony as payments made between spouses or former spouses pursuant to a divorce or separation agreement. Typically, alimony is deductible to the payor and includable as income to the payee for federal income tax purposes. However, the Defense of Marriage Act prohibits the federal recognition of same-sex marriages, and in turn precludes the IRS from recognizing a same-sex spouse as such. Although the IRS has not provided specific guidance on the issue, it seems clear that alimony payments are not tax deductible to the payor and may incur a gift tax liability. The IRS might alternatively consider the payments compensation for past services, with income tax, self-employment tax and possible withholding obligations. Either treatment will incur tax consequences that could be financially devastating to the family.

Property Division

In "traditional" divorces, opposite-sex couples rarely invokes tax consequences during the division of their marital assets. Such property transfers meet specific IRS exemption rules. Same-sex couples on the other hand can be saddled with a large tax liability as a result of property division.

The Defense of Marriage Act disqualifies same-sex spouses from the tax exemptions for property transfers made pursuant to a divorce decree. Instead, same-sex couples incur a gift tax liability for most transfers made between the spouses or former spouses in excess of $13,000. For example, if one spouse transfers $30,000 to the other spouse for property settlement, $17,000 would be taxable. In addition to gift tax, same-sex couples must be aware of capital gains tax when the home is transferred from joint ownership to one spouse.

A specific part of property division is the ability of a spouse to transfer property to a spouse or former spouse by qualified domestic relations order (QDRO) pursuant to the federal Employment Retirement Income Security Act (ERISA), a portion of a retirement plan or tax sheltered annuity. The tax treatment of such transfers depends on the word "spouse." In other words, in order to qualify for the tax-free transfer benefits, the relationship must be recognized by the IRS as a marriage. Under the Defense of Marriage Act, which defines marriage as between a man and a woman, a QDRO is not a vehicle available to same-sex couples to transfer retirement assets tax-free. Instead, same-sex couples must pay taxes and early withdrawal penalties on transfers made to the other spouse, regardless of whether it is deposited into the other spouses’s retirement account.

Parental Rights & Responsibilities

New Hampshire follows the legal principal that a child born into a marriage is presumed to be the legal child of both spouses. This presumption of legitimacy may be attacked however, and if successful could drastically affect the non-biological parent’s right to seek parenting rights and responsibilities, including residential responsibilities. Although the step-parent statute might be a useful tool in this circumstance, the parenting rights accessed through this avenue could look much different than the rights of a legal parent. Co-parent adoption is the safest way to establish protected parenting rights for each spouse.

Address notification requirements and domestic violence restraining orders: How to comply with conflicting orders

Kysa Crusco — Wed, 18 Jan 2012 11:08:14 -0500

Question:

Do I still have to notify the other parent about moving pursuant to the relocation statute if there is a domestic violence restraining order and my address is confidential?

Answer:

The statute states that the notice requirement applies in all parenting rights and responsibilities cases unless specifically addressed otherwise in the parties’ existing order or agreement. If there is a court order stating that you do not have to comply with the relocation law, then no notice is needed. Similarly, if the move results in your moving closer to the other parent and there is no change in school placement, then no notice is needed pursuant to the relcoation statute. You may, however, need to provide notice of your address change pursuant to provisions in the court order requiring parents to keep each other updated on address and contact information.

If you are required to provide notice of the address change, then you must comply and provide notice of the move to the other parent. If you are concerned about releasing your address, the best approach would be to provide notice of the move by providing the town or city location only, and not the street address, and file a motion with the court to seek permission not to disclose the full address. Presumably, the other parent has the right to know what schools the children are attending, so the information about the town or city will most likely need to be disclosed.

Remember, this is a basic answer to a basic question. Each family matter is unique, and has a specific set of facts which might change the above answer. In order to make sure that you arein compliance with court orders and New Hampshire law, you should seek advice from an attorney who is able to review your situation with you.

Thompson v. D'Errico: Order your transcript for your appeal!

Kysa Crusco — Wed, 28 Dec 2011 00:01:02 -0500

The Facts

The plaintiff, Linda Thompson, filed a domestic violence petition against the defendant, Christopher D’Errico requesting an order of protection. After an evidentiary hearing, the Court issued a final order of protection, and made findings that the defendant had on a daily basis sent text messages to the plaintiff using “extraordinarily foul language”, that the defendant had made reference to a having a loaded shotgun, and that a family friend had to interfere to stop the defendant from putting his hands around the plaintiff neck. The defendant moved for reconsideration, arguing that the evidence did not support a finding that he posed a credible threat to the plaintiff’s safety. The trial court conducted a further hearing, and issued an order detailing the text messages sent by the defendant at extremely inconvenient hours, using such language as “bills asshole die bitch,” sent in the days leading up to the filing of the domestic violence petition. The court found these texts to be a “credible present threat, considering the defendant’s previous threat of the loaded shotgun and the defendant’s previous attempt to put his hands around the plaintiff’s neck.”

The Appeal

The defendant appealed the order, arguing that:

(1) his non-threatening foul language is protected by the First Amendment;

(2) there is no evidence to support the plaintiff’s allegations against him;

(3) the text messages might have been sent by a third party having access to his phone;

(4) the trial court erred by admitting evidence of certain text messages; and

(5) the evidence does not support the finding of a credible present threat to the plaintiff’s safety.

The Holding

The evidence supported a finding of a credible threat to the plaintiff’s safety. The Supreme Court came to this conclusion because the defendant, who was the appealing party, failed to provide a transcript, and absent a transcript, the court must assume that the evidence was sufficient to support the trial court’s ruling. The court refused to consider other questions presented on appeal for this same reason, finding that the defendant had failed to demonstrate that he had preserved issues for appeal without a transcript evidencing his objections to evidence.

The First Amendment does not protect the defendant’s non-threatening foul language because the definition of harassment, which requires repeated communications with offensively coarse language that is made with the purpose to annoy or alarm, is narrowly tailored to the illegal communication it seeks to prevent.

The Takeaway

Provide a transcript for your appeal. The transcript is the written record of what happened during your hearing or trial. Without a transcript, the Supreme Court has no way of knowing whether you brought an issue to the attention of the trial court for consideration. For example, did you object when the other side submitted a tax return to the judge? If your appeal alleges that the trial court improperly allowed the tax return into evidence, the Supreme Court needs to confrim that you objected and preserved that issue for their review. Similarly, without a transcript, the Supreme Court must assume that the conclusions or findings reached by the trial court were supported by the evidence. In this case, the defendant failed to provide a transcript, and many of his arguments brought before the Supreme Court, including whether the trial court had sufficient evidence to reach the conclusion that he presented a credible threat to the plaintiff’s safety, failed for that reason. The results might have been different if he had ordered and paid for the transcript.

As the Occupy Wall Street movement recently learned, free speech as limits. The statute defining harassment requires a repeated course of conduct, where communication occurs at extremely inconvenient hours or with extremely coarse language. The calls must also be made with the purpose to annoy or alarm. Harassment cannot be conjured from a single call made to anyone, anywhere, at any time. Here, the defendant sent repeated texts, at inconvenient hours, and with extremely coarse language. The texts were clearly designed the alarm the plaintiff, rather than expressive conduct made for a legitimate purpose. This communication is the exact type of illegal behavior the statute is designed to prevent.

Nashua Family Division Opens

Kysa Crusco — Thu, 03 Nov 2011 21:33:57 -0500

The 9th Circuit Family Division at Nashua is now open. The Nashua Family Division will serve the Hudson, Hollis and Nashua communities.The family division has jurisdiction over divorce, parenting, child support, guardianship, termination of parental rights, abuse/neglect, CHINS, and some adoptions. The courthouse is located at 30 Springs Street, and the phone number is 603-882-1231. For other family division locations, check the court website.

Post Divorce To-Do List

Kysa Crusco — Fri, 28 Oct 2011 08:37:32 -0500

The divorce is finally over, and it is time to move on. There are still some loose ends to tie up though, even after the divorce decree has issued. Not every item may apply to your case, but here are the most common things that should be on a newly single person's to-do list.

1. Update your life insurance and retirement account beneficiaries
2. Prepare a new will
3. Execute a quitclaim deed and record it at the registry of deeds to transfer the title of the house
4. Draft a QDRO, submit it to the court for approval and provide the order to the plan administrator
5. Resume your maiden name, and obtain a new social security card, driver’s license and debit and credit cards
6. Complete required paperwork to implement child support orders
7. Change your vehicle titles
8. Close all joint bank and credit card accounts
9. Make sure that COBRA benefits are in place and the necessary paperwork has been completed
10. Exchange personal property awarded to you or your former spouse

New Mandatory Self-Disclosure Rule takes effect December 1st in Family Division

Kysa Crusco — Thu, 27 Oct 2011 09:29:43 -0500

A much needed mandatory self-disclosure rule is coming to New Hampshire on December 1, 2011. The concept of the rule is to streamline the discovery process by exchanging required financial documents early in the litigation process so that each party has the information they need to be prepared for mediation and a temporary hearing. The rule should also reduce common disputes, such as relevancy, that unnecessarily take up court time and increase litigation costs.

Family Division Rule 1.25-A applies to all new actions in the family division for:

· divorce

· legal separation

· annulment

· civil union dissolution

An abbreviated version of the rules applies that requires disclosure of documents described sections (a) through (e) in the following cases:

· parenting petitions

· child support petitions

· petitions to enforce or change court orders in parenting, divorce, legal separation, or civil union dissolution cases

Parties must provide the above documents no later than either forty-five (45) days from the date of service/delivery of the petition or ten (10) days prior to the temporary hearing or initial hearing on the petition, whichever is earlier. A First Appearance does not qualify as an initial hearing.

The rule obligates each party to provide the following documents to the other party:

(a) A current financial affidavit in the format required by family division rule 2.16, including the monthly expense form.

(b) The past three (3) years’ personal and business federal and state income tax returns and partnership and corporate returns for any non-public entity in which either party has an interest, together with all tax return schedules, including but not limited to W-2s, 1099s, 1098s, K-1s, Schedule C, Schedule E and any other schedules filed with the IRS.

(c) The four (4) most recent pay stubs (or equivalent documentation) from each current employer, and the year-end pay stub (or equivalent documentation) for the calendar year that concluded prior to the filing of the action.

(d) For business owners or self-employed parties, all monthly, quarterly and year-to-date financial statements to include profit and loss, balance sheet and income statements for the year in which the action was filed; and all year-end financial statements for the calendar year that concluded prior to the filing of the action.

(e) Documentation confirming the cost and status of enrollment of employer provided medical and dental insurance coverage for:

i. The party,

ii. The party's spouse, and

iii. The party's dependent child(ren).

(f) For the twelve (12) months prior to the filing of the action, any credit, loan and/or mortgage applications, or other sworn statement of assets and/or liabilities, prepared by or on behalf of either party.

(g) For the twelve (12) months prior to the filing of the action, documentation related to employee benefits such as but not limited to stock options, retirement, pension, travel, housing, use of company car, mileage reimbursement, profit sharing, bonuses, commissions, membership dues, or any other payments to or on behalf of either party.

(h) For the twelve (12) months prior to the filing of the action, statements for all bank accounts held in the name of either party individually or jointly, or any business owned by either party, or in the name of another person for the benefit of either party, or held by either party for the benefit of the parties' minor child(ren).

(i) For the twelve (12) months prior to the filing of the action, statements for all financial assets, including but not limited to all investment accounts, retirement accounts, securities, stocks, bonds, notes or obligations, certificates of deposit owned or held by either party or held by either party for the benefit of the parties' minor child(ren), 401K statements, individual retirement account (IRA) statements, and pension-plan statements.

(j) For the twelve (12) months prior to the filing of the action, any and all life insurance declaration pages, beneficiary designation forms and the most recent statements of cash, surrender and loan value.

(k) For the six (6) months prior to the filing of the action, statements for all credit cards held by either party, whether individually or jointly.

(l) Any written prenuptial or written postnuptial agreements signed by the parties.

NH Supreme Court requests amicus briefs on topic of right to counsel in abuse and neglect cases

Kysa Crusco — Thu, 20 Oct 2011 22:33:49 -0500

Since July 2011, indigent parents accused of abuse or neglect have had to manage the court system without an attorney. Recent legislative changes removed the statutory requirement contained in RSA 169-C:10, II(a) that counsel be appointed for requiring appointed counsel for indigent parents. However, the question still remains whether the parents have a constitutional right to counsel under the New Hampshire constitution.

The New Hampshire Supreme Court is now faced with that question, and has called for amicus briefs or memorandum on the following question:

Does the Due Process Clause of the New Hampshire Constitution (Part 1, Articles 2 and 15) or the Fourteenth Amendment of the Federal Constitution require the appointment of counsel for an indigent parent from whom the State seeks to take custody of a minor child based on allegations of neglect or abuse?

I believe the civil right to counsel for parents accused of abuse or neglect is a fundamental right, as basic as the right to an attorney in criminal matters. My New Hampshire Bar News opinion and blog post provide a more detailed analysis. I am interested to hear your opinion so feel free to leave a comment.

Why Same-Sex Marriage and Divorce Requires a National Solution

Kysa Crusco — Wed, 27 Jul 2011 08:00:00 -0500

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 10^th 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.

Representation of Accused Parents is Fundamental Right

Kysa Crusco — Fri, 22 Jul 2011 00:10:00 -0500

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.

After TPR & Adoption: Grandparents may petition for visitation rights

Kysa Crusco — Fri, 22 Jul 2011 00:01:01 -0500

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.

Have you considered collaborative law?

Kysa Crusco — Mon, 11 Jul 2011 20:50:27 -0500

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.

Coming Changes and Challenges to New Hampshire Parents' Right to Counsel in Abuse and Neglect Proceedings

Kysa Crusco — Thu, 23 Jun 2011 22:53:18 -0500

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.

Mission Impossible: Family Division Admin Order 2011-03

Kysa Crusco — Tue, 24 May 2011 22:23:36 -0500

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.

2011 Lawline Dates

Kysa Crusco — Sun, 01 May 2011 20:46:39 -0500

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

Guardian ad Litem fund nears extinction

Kysa Crusco — Fri, 25 Mar 2011 11:39:46 -0500

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.

New Hampshire Supreme Court to release opinion in New Hampshire home-school case tomorrow

Kysa Crusco — Tue, 15 Mar 2011 11:45:58 -0500

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.

Leone v. Leone: Testifying Telephonically

Kysa Crusco — Mon, 28 Feb 2011 13:33:41 -0500

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.

Concord, we have a problem!

Kysa Crusco — Tue, 22 Feb 2011 07:00:00 -0500

Crazy things are going on in Concord that needs your attention. Currently, there are several bills that would dramatically change the practice of family law in New Hampshire, and not for the better. A group of disgruntled litigants are attempting for the third time to remove a distinguished marital master from the bench. Finally, Governor Lynch’s proposed budget eliminates the guardian ad litem fund and appointed counsel for parents in abuse and neglect cases, a proposal that would be disastrous for the overburdened court system and children they protect.

Pending Legislation

The New Hampshire family court system is not perfect and I am sure that there is room for improvement. Unlike other areas of the law, which are black and white, the grey nature of family law requires the vesting of discretion within the court to allow a result based on the unique facts of each case. However, the legislature seems intent on radical change that removes discretion from the courts, and mandates certain outcomes.

HB 587 proposes that no fault divorces be granted only to couples who do not have children under the age of 18. Instead, divorcing couples with minor children must prove one of the fault grounds, such as adultery, extreme cruelty, endangerment of health or reason, habitual drunkenness, or abandonment. Though the aim may be to keep families together by requiring a person seeking a divorce to prove fault, the end result would be increased litigation, expense and animosity in cases involving children. Such a result is in no one’s best interests.

HB 538 would require the family division to report a vast amount of information to the state registrar about parental rights and responsibilities matters. The bill proposes that the court must report statistics on every temporary or permanent order on parental rights and responsibilities, including tallying whether mothers or fathers were awarded decision making and residential responsibility. The bill also requires the Supreme Court to implement standards of practice and oversight of GALs. This bill creates an extreme amount of work for an all ready underfunded court system, and duplicates oversight and discipline provided by the GAL Board. In today’s tough times, it’s the least important thing on the plate.

HB 563 would discard the current child support calculations and set child support to either the net income multiplied by the applicable percentage or the foster care reimbursement rates, whichever is less. Where to start with what is wrong with this bill? It drastically reduces all child support rates by basing child support on net income instead of gross income and tying child support to the foster care reimbursement rates. For example, the most that any obligor would ever have to pay for a child age 0 to 5 would be $474. That amount does not even cover daycare for one child, let alone diapers, formula, clothing, food and shelter.

If you have comments or concerns about these bills, contact your legislature to make your voice heard. You can find the contact information for your representative or senator on the state website.

Impeachment of Master Cross

For three years, family court litigants David Johnson and Michael Puia have waged a public war against Marital Master Philip Cross through the legislature. Despite the legislature's vote against the Bill of Address seeking to remove Master Cross from the bench, Rep Itse has sponsored a house resolution seeking to direct the the house judiciary committee "to investigate whether grounds exist to impeach marital master Phillip Cross and/or any justice of the New Hampshire superior court."

Such a maneuver is a dangerous, slippery slope for the legislature. In its 235 year history, the State of New Hampshire has impeached two judges. Impeachment is reserved for the most serious of offenses, defined by the Constitution as "bribery, corruption, malpractice or maladministration." The nature of the allegations enumerated in the resolution cannot on its face be characterized as one of these four acts.

Instead, the allegations evidence unhappy litigants who do not understand the court system. Therein is the slippery slope. If every litigant who received an adverse decision were able to bring their grievance to the legislature and initiate impeachment proceedings, the State of New Hampshire would have no judges left. Master Cross alone heard over 6,000 cases last year. Add in the 90 plus judges and masters across the state, and the legislature would have their hands full.

The hearing before the Resolution Committee on this matter will occur at the Legislative Office Building, 30 North State Street, Concord, on Tuesday, the 22nd, @ 3:30pm.

State Budget

Governor Lynch has proposed a budget that eliminates both the GAL Fund and assigned counsel for parents accused of abuse and neglect. This proposed change would go into effect on July 1, 2011.

Currently, the GAL Fund works as follows: The court assigns a Guardian ad Litem to a case to represent the best interests of a child. These cases include divorce, parenting petitions, termination of parental rights, guardianships and other family matters. In the event that one or both of the litigants qualifies under certain income guidelines, the court orders that the qualifying parent’s portion of the payment owed to the GAL will go through the GAL fund. The parties are then required to contact the Office of Cost Containment and set up a payment schedule. Services rendered by GALs through the GAL fund are not free, and the parents must pay back the funds.

In abuse and neglect cases, the Division of Children, Youth and Families files a petition against a parent alleging that a child is abused or neglected. A possible consequence of an abuse or neglect petition can be the filing of a petition to terminate a parent’s parental rights. Parental rights are constitutional rights, similar to a defendant charged in a criminal case. Additionally, assigned counsel is subject to reimbursement from the parents. In other words, a parent does not get a free attorney, and may have to pay back some or all of the funds.

The results of the Governor’s proposed cuts would be disastrous. Eliminating the GAL fund would deny access to the court system to low income families. Judges would be unable to make informed decisions regarding custody of children without the services of a guardian ad litem, and children would be put in harm’s way. In abuse and neglect cases, a flood of litigants who are unfamiliar with the court system and the law will wash through and muddy an all ready overburdened court. Then, eventually, when a parent who has not been afforded counsel has their constitutional right to parent terminated will win an appeal on those grounds and children who need permanent homes will continue to live in limbo.

I get that the state is looking to eliminate entitlement programs, but these programs are not free and are about access to justice and the protection of constitutional rights. Instead of eliminating the programs, the state should implement a better system to insure that more parents are paying into the system as they have been court ordered to do.

Please write to Governor Lynch, and tell him how his proposed budget affects your family.