Saturday, May 31, 2014

Can a Child Choose the Parent they want to live with in a New Hampshire Divorce?

There is an old "parents" tale that a child can choose the parent to live with during or after a divorce if the child is thirteen years old. In New Hampshire family law statutes, there is no bright line rule that at a certain age the child can choose. New Hampshire bases the overall decision of parental rights and responsibility (custody) on the “best interest of the child” standard N.H. Rev. Stat. § 461-A:6, I (a-l). There are twelve factors that the court must consider in making its parental rights and responsibility (custody) decision. A child’s preference and the weight given to the preference is in N.H. Rev. Stat. § 461-A:6, II, and a factor that the court can consider in making parental rights and responsibility decisions.

N.H. Rev. Stat. § 461-A:6, II provides
If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the determination of parental rights and responsibilities. Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child's preference, including whether the minor child's preference was based on undesirable or improper influences.

The statute says the child must be of “sufficient maturity to make a sound judgment” and not a preset age. The family law judge may give “substantial weight” to the child’s preference in making a decision on parental rights and responsibilities (custody). However, the court must also consider whether the child’s preference is genuine and free from influence.

It is a warning to parents not to influence the child. Improper ways a parent could influence their child is by promising them gifts like cars, i-phones, or clothes. The parent could also promise special privileges like not having to do chores, longer curfews, or more lenient rules. The parent that attempts to influence the child may also discourage a relationship with the other parent.

Instead of manipulating or bribing a child, parents should be parents by meeting the other factors that are in a child’s best interest like

  • Provide for a child’s physical needs –food, shelter, and a safe environment.
  • Provide for a child’s emotional needs-love, affection, and guidance through discipline and realistic rules.
  • Support your child in development of their talents and interests, relationships with friends and others, and a connection to their community and school.
  • And always promote your child’s relationship with the other parent.

The court will look at all these factors in addition to the child’s preference. Moreover, a child raised in an environment where the child’s best interest is the priority will mostly likely prefer it over the alternative environment.

In the end, there is no preset age when a child’s preference will be considered in making the decision on a petition for a parental rights and responsibilities (custody) in New Hampshire. The family law judge may give “substantial weight” to a mature child’s preference, but the judge must consider any factors that influence the child’s preference. In addition, all the factors concerning the best interest of child must be considered. More importantly, the family law judge makes the final decision on which parent the child lives with-it is not the child’s decision.

Sunday, April 27, 2014

NH Supreme Court Child Testimony Decisions

On April 18, 2014, the New Hampshire Supreme Court issued a slip opinion in the matter of In Re: GG. This was a Child Protection Act, RSA Chapter 169-C, case to determine whether GG was abused and neglected by her father. The state introduced a video recording of GG as evidence of abuse. The father sought to subpoena GG to provide live testimony at the proceedings. The superior court denied the father's request of the child's testimony. The issue before the New Hampshire Supreme Court was whether the father had a right to compel the testimony of the child.

The New Hampshire Supreme Court decided that the testimony of a child victim was at the discretion of the judge. There is no statutory or otherwise right to compel the child's testimony. However, the Court presented a non-exhaustive list of factors that the trial court may consider when making the decision.

The Court stated:

[W]e encourage trial courts to consider:

(1) the child’s age;
(2) the specific potential harm to the child from testifying;
(3) the indicia of reliability surrounding any admitted out- of-court statements describing the child’s allegations;
(4) evidence that may lend credibility to the allegations of abuse or neglect, such as consistency of the child’s and responding parent’s accounts, or evidence of prior injury;
(5) the incremental probative value of the child’s potential in-court testimony; and
(6) whether there are alternatives to in-court testimony that would enable meaningful examination of the child without jeopardizing the child’s well-being.
In Re: GG , No. 2012-873, slip op. at 5, (N.H. April 18, 2014).

Reliable, credible, and probative value are essential elements of evidence presented in any legal matter. If there is alternative evidence that is reliable and credible then the harm to the child may outweigh the need for direct testimony from the child. Essentially, in abuse and neglect cases, the trial court must balance the respondent’s/parent's interest in offering the child's testimony against the harm to the child. In Associate Justice Robert J. Lynn's special concurrence he offered possible ways to mitigate the harm to the testifying child.

Among the actions the trial court may take to ameliorate the impact on the child of being required to testify are the following:

(1) prohibiting overly aggressive or overtly hostile questioning by respondent’s counsel;
(2) allowing the child’s guardian (or, in appropriate circumstances, a non-accused parent) to be close to or to stand by the child while testifying;
(3) ordering that the examination take place in the more informal setting of the judge’s chambers rather than in the courtroom;
(4) limiting the persons permitted to be present during the child’s testimony, including, if the circumstances warrant, precluding the respondent from being present during the time the child testifies; and
(5) having the parties submit written questions, which the judge can then ask the child in chambers with a record but without the parties present, after which the judge shares the child’s answers with the parties.

In Re: GG , No. 2012-873, slip op. at 7, fn. 2, (N.H. April 18, 2014).

Two of these are alternatives to open court testimony, testimony in the judge's chambers and written questions asked by the judge to the child. These are examples of the Court's factor six above, "alternative to in-court testimony". Abuse and neglect cases are civil proceedings. Moreover, abuse and neglect allegations can also have criminal implications with criminal charges against parents/abusers. Thus, for the same conduct there is a civil matter to protect the child from future abuse and neglect, and a criminal matter to punish the offender. In criminal proceedings, the child's relevant and material testimony occurs through live testimony. Another possible alternative as the Court noted was to allow the child's criminal trial testimony be offered into evidence in the abuse and neglect case, so the child only testifies one time.

Testimony by a child that has suffered alleged abuse or neglect is very sensitive. The best possible options will not alleviate the emotional impact of giving such testimony. A judge making the difficult decision of whether to grant or deny a respondent’s/parent's request for child testimony in civil abuse and neglect cases must balance the interests of the parents against the harm to child. The New Hampshire Supreme Court’s guidance will help make these difficult decisions in the future.

Lake Massabesic New Rules for Recreational Use

Despite the great effort of the equine community, on April 24, 2014 the Manchester Water Works Board voted to enact the following new rules for Lake Massabesic watershed. The rules will be effective on or before June 1, 2014.

The new rules:
  • Allow horses on gravel fire roads, as long as they wear some kind of diaper or waste-collection device.
  • Allow horses on nearly all watershed property if part of a commission-approved, organized riding event. Event plans must include immediate removal of horse droppings.
  • Prohibit horses in the water or on the shoreline, beaches, boat launches or public parks.
Source: Hayward, "Riders can't convince Manchester Water Works of horse sense", NH Union Leader, April 24, 2014.

Thursday, April 24, 2014

Meeting Location change

The April 24, 2014 meeting of the Manchester Water Board will be held at 1581 Lake Shore Road, Manchester, NH in the conference room. The meeting will begin at 4:25 pm.

Wednesday, April 16, 2014

New Horse Rules for Lake Massabesic

Everyone should be concerned about and contribute to the protection of clean water resources in New Hampshire. But what should we do? What strategies are necessary to protect and what strategies are overly restrictive? We often rely upon scientific evidence to tell us what is harmful and what strategies can be implemented to mitigate any harm. There is an environmental debate over the harmfulness of horse manure and what strategies should be implemented to mitigate any such harm.

The issue involves the Lake Massabesic watershed property that supplies water to homes and businesses in Manchester, New Hampshire, and the use of the land by horses for recreational purposes. On April 24, 2014, the Manchester Board of Water Commissioners will decide on new rules restricting recreational horse use on Lake Massabesic watershed property. The proposed rules allows horses to be on gravel fire roads as long as they wear a "diaper" and excludes horses from the water, beaches, boat launches and public parks. The lack of scientific evidence showing any direct casual effect of horse use and water quality of the lake make the decisions in this debate even harder to decide.

Is horse manure harmful? Some say no. Some say it does not matter if it is really harmful or not, if there is a small possibility that horse manure could be harmful then it should be protected against. Horse manure left on a trail is affected by many environmental forces before it ever reaches the fifteen billion gallons of water in Lake Massabesic and into our faucets at home. Sun, soil, air, and water work to decompose the manure in the environment. Sand, gravel, and rock wash containments from water as it flows. Plants and vegetation along the trails use the manure nutrients to grow. Plants and vegetation act as a buffer to the edges of the lake. Horse manure has been dropped and spread on the lands of New Hampshire since the first settlers.

These proposed new rules are important and not just to recreational horse use at Lake Massabesic. It is a precedent that could spread to other watersheds and non-watershed property in New Hampshire. One possible strategy is to require horse owners to spread the manure on the trail to help the natural environment process it quicker. It appears the Manchester Board of Water Commissioners does not support this strategy. The Board is proposing rules that suggest horse manure is a harmful threat to water resources that must be dealt with by the strictest of restraints - requiring horses to wear diapers. There is no direct evidence to support the Board’s conclusion. If there is (or will be) a water quality issue at Lake Massabesic, then a study should be done to determine the causes of why the water quality is (or will be) deteriorating.

Instead, these rule changes are blind attempts to solve a perceived problem when the real problem is not even known. Moreover, to single out one possible contributing factor and implement the most restrictive mitigating strategy gives us all a false hope that the problem has been solved. In the future after the restrictive strategy has been implemented, but the water quality has still deteriorated, we will look back at this debate and say "It was not the horses." We all support clean water. However, strategies to protect water resources and mitigate harm should be based on scientific evidence and not perceived threats.

On April 24, 2014 come out and support a less restrictive strategy for recreational horse use at the Manchester Board of Water Commissioners Board Meeting. The meeting is at 4:30 p.m. at 281 Lincoln Street, Manchester, NH.