Articles Posted in Family Law

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The parents of O.D., B.D., and G.D. appealed a circuit court order terminating their parental rights over their children, on the ground that they failed to correct the conditions leading to a finding of neglect. They argued the circuit court violated their due process rights by terminating their parental rights without requiring the New Hampshire Division for Children, Youth and Families (DCYF) to file new abuse or neglect petitions against them after the court issued an ex parte order removing the children from their home during ongoing neglect proceedings and by failing to appoint counsel for them during the neglect proceedings. Finding no abuse of discretion or other reversible error, the New Hampshire Supreme Court affirmed. View "In re O.D." on Justia Law

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Petitioner Steven Hoyt appealed a circuit court order reinstating his alimony obligation to respondent Lesley Hoyt, and granting an upward adjustment to his child support payments. The parties had three children. Two were over age 18. The oldest child withdrew from college and moved back in with the respondent due to a medical condition. The middle child attends college but lives with the respondent while school is not in session. The parties’ youngest child was in high school, and primarily resided with respondent. Petitioner filed a request seeking a reduction to his child support obligation because the middle child had recently turned 18. However, in June 2016, prior to receiving approval from the trial court, petitioner reduced the amount of his monthly child support payment. Thereafter, respondent requested alimony. Prior to the final hearing, respondent filed a one-page proposed order seeking to increase child support for the youngest child to $1,100 per month and requesting alimony in the amount of $600 per month. Petitioner requested that the current child support payment be reduced to $982 per month. Accompanying petitioner’s proposed order was a detailed request for factual findings along with legal citation in support of his position. The trial court ultimately renewed alimony and upwardly adjusted the child support obligation. Based on the record, the New Hampshire found no abuse of discretion in its judgment, and affirmed. View "In the Matter of Steven Hoyt and Lesley Hoyt" on Justia Law

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Petitioner Eric McAndrews appealed an order recommended by a Marital Master (DalPra, M.) and approved by the Circuit Court which dismissed his petition to modify a parenting plan on inconvenient forum grounds. The parenting plan pertained to petitioner’s child with whom he shares custody with respondent Sachet Woodson. On appeal, petitioner argued that the trial court erred in dismissing his petition because it conducted an improper and incomplete inconvenient forum analysis pursuant to RSA 458-A:18 (Supp. 2017), a provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). In vacating the circuit court's order, the New Hampshire Supreme Court found the order lacked a meaningful discussion of the factors that it relied upon in reaching its conclusion and its failure to address each specific factor required by the UCCJEA was untenable and unreasonable to the prejudice of petitioner’s case, and, therefore, its decision that Indiana is the more convenient forum constituted an unsustainable exercise of its discretion. View "In the Matter of McAndrews and Woodson" on Justia Law

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At issue before the New Hampshire Supreme Court in this matter was whether, under New Hampshire’s adoption statute, petitioner, J.P., an unmarried male, could become the adoptive father of Y.L., an adult female, without altering the legal parental status of Y.L.’s birth mother. Contrary to the finding of the Circuit Court, the Supreme Court believed that he could and, consequently, reversed and remanded. View "In re Y.L." on Justia Law

Posted in: Family Law

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Father challenged the Circuit Court’s authority to hold a hearing to determine his parental fitness to regain custody of his children, J.H. and A.H., following the dismissal of the neglect petitions filed by the New Hampshire Division for Children, Youth and Families (DCYF) against him. Father also appealed the trial court’s dispositional order imposing conditions on him before his children could be returned to his custody, after finding that the children were neglected by Mother but not by Father. Father asserted that, upon the dismissal of the neglect petitions against him, he was presumed to be a fit parent. Because he was not found to have abused or neglected his children in the adjudicatory phase of the RSA chapter 169-C proceedings, the New Hampshire Supreme Court agreed that Father was a presumptively fit parent at that stage of the proceedings. The Court disagreed, however, that the court was required to immediately return the children to Father’s custody. Instead, the Court concluded that holding an additional hearing to determine Father’s parental fitness did not violate his constitutionally protected fundamental right to parent. Although Father regained his presumption of fitness once the neglect petitions against him were dismissed, “parental rights are not absolute, but are subordinate to the State’s parens patriae power, and must yield to the welfare of the child.” Here, the neglect finding against Mother and the fact that Father and Mother lived together constituted “unusual and serious” circumstances that justified the court’s continued intervention in the relationship between Father and his children. The Supreme Court affirmed the Circuit Court's judgment. View "In re J.H.; In re A.H." on Justia Law

Posted in: Family Law

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In consolidated appeals, petitioner Vivian Silva appealed two circuit court orders in her divorce from respondent Robert Silva. She argued the trial court erred when it: (1) deviated from the child support guidelines; (2) inequitably divided the marital estate; and (3) did not find the respondent in contempt for withdrawing funds from an education savings account, or “529 account,” established for their daughter’s benefit, during the pendency of the divorce, and did not consider the 529 account in its division of the marital estate. After review, the New Hampshire Supreme Court agreed with petitioner with respect to child support, and found the trial court record unclear with respect to the 529 account. The Court vacated the distribution of property decision altogether and remanded this case for the trial court to clarify its disposition of the 529 account, and if necessary, the adjust the division of marital property. The Court affirmed the trial court in all other respects. View "In the Matter of Vivian Silva and Robert Silva" on Justia Law

Posted in: Family Law

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Respondent Lauren DiGiulio appealed a circuit court order granting petitioner Gregory Neal's petition to rescind a voluntary acknowledgment of paternity. Respondent also appealed the trial court’s denial of a hearing on her request for attorney’s fees. In July 2009, the respondent gave birth to a child (the child or the first child). Although the parties lived in New Hampshire, the child was born in Portland, Maine. The day after the birth, the parties executed a Maine voluntary acknowledgment of paternity form, acknowledging that petitioner was the child’s “natural father.” The parties lived together for approximately three years, and, in 2011, they had a second child (the second child). The parties separated after the birth of the second child. In 2012, the parties voluntarily underwent paternity testing to determine the paternity of both children. The test results revealed that the petitioner was the second child’s biological father, but that he was not the biological father of the first. Despite the test results, the petitioner continued to try to have a relationship with the child and had substantial parenting time with the child until March 2014 when the child’s biological father was released from prison. At that point, respondent severed petitioner’s contact with the child in favor of the child’s biological father. Thereafter, petitioner made a number of requests to see the child, all of which were denied. However, at no time did petitioner file a parenting petition with respect to the child. In 2015, petitioner filed a parenting petition with respect to the second child, without identifying the first child as also being one of the parties’ children. In November, in that same proceeding, petitioner filed a “Motion to Rescind Paternity” of the first child, seeking to rescind the acknowledgment of paternity he executed with respect to the child and requesting that the court “[a]cknowledge that [he] is not the biological father of” the child and “order and declare that [he] is not the legal father of” the child. Following a hearing, the trial court granted the motion, rescinding the petitioner’s acknowledgment of paternity of the first child. The New Hampshire Supreme Court concluded that, under the specific circumstances of this case, the record established an objective basis sufficient to sustain the trial court’s ruling that, despite petitioner’s delay in filing the motion, it was fair to allow petitioner’s motion for rescission of paternity. View "In the Matter of Gregory Neal and Lauren DiGiulio" on Justia Law

Posted in: Family Law

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Respondent Lauren DiGiulio appealed a circuit court order granting petitioner Gregory Neal's petition to rescind a voluntary acknowledgment of paternity. Respondent also appealed the trial court’s denial of a hearing on her request for attorney’s fees. In July 2009, the respondent gave birth to a child (the child or the first child). Although the parties lived in New Hampshire, the child was born in Portland, Maine. The day after the birth, the parties executed a Maine voluntary acknowledgment of paternity form, acknowledging that petitioner was the child’s “natural father.” The parties lived together for approximately three years, and, in 2011, they had a second child (the second child). The parties separated after the birth of the second child. In 2012, the parties voluntarily underwent paternity testing to determine the paternity of both children. The test results revealed that the petitioner was the second child’s biological father, but that he was not the biological father of the first. Despite the test results, the petitioner continued to try to have a relationship with the child and had substantial parenting time with the child until March 2014 when the child’s biological father was released from prison. At that point, respondent severed petitioner’s contact with the child in favor of the child’s biological father. Thereafter, petitioner made a number of requests to see the child, all of which were denied. However, at no time did petitioner file a parenting petition with respect to the child. In 2015, petitioner filed a parenting petition with respect to the second child, without identifying the first child as also being one of the parties’ children. In November, in that same proceeding, petitioner filed a “Motion to Rescind Paternity” of the first child, seeking to rescind the acknowledgment of paternity he executed with respect to the child and requesting that the court “[a]cknowledge that [he] is not the biological father of” the child and “order and declare that [he] is not the legal father of” the child. Following a hearing, the trial court granted the motion, rescinding the petitioner’s acknowledgment of paternity of the first child. The New Hampshire Supreme Court concluded that, under the specific circumstances of this case, the record established an objective basis sufficient to sustain the trial court’s ruling that, despite petitioner’s delay in filing the motion, it was fair to allow petitioner’s motion for rescission of paternity. View "In the Matter of Gregory Neal and Lauren DiGiulio" on Justia Law

Posted in: Family Law

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The New Hampshire Division for Children, Youth and Families (DCYF) sought to challenge a circuit court order closing a child protection case. In November 2014, DCYF filed a petition for neglect under RSA chapter 169-C against the respondent-mother alleging that she neglected her child by engaging in drug use and exposing the child to domestic violence in the home. The child was found to be neglected; in January 2015, the trial court held a dispositional hearing and issued orders requiring, among other things, that the mother: attend and meaningfully participate in substance abuse and/or mental health counseling; attend and meaningfully participate in visits with the child; follow the terms of her release from incarceration and remain free from incarceration; and obtain and maintain a home free from untreated substance abuse, mental health issues, and/or domestic violence. At a three-month review hearing in April, the mother was found to be in “partial compliance.” At a six-month review hearing in August, the mother failed to appear and was found to be “not in compliance.” At a permanency hearing in December, the mother was again found to be “not in compliance,” at which time DCYF recommended and the court ordered a change in the permanency plan from reunification to adoption and that DCYF file a termination of parental rights petition under RSA chapter 170-C to enable adoption to occur. In October 2016, a hearing was held on DCYF’s petition for termination of parental rights, but the court denied it, finding DCYF did not present evidence of the mother’s failure to correct the conditions that led to the finding of neglect despite DCYF’s provision of reasonable efforts. In February, however, the court, sua sponte, issued an order concluding that “the New Hampshire legislature has determined that guardianship should be awarded for a child, pursuant to RSA 170-C:11, IV, when a termination proceeding fails, but the Court nonetheless believes that the child’s parental care requires substitution or supplementation.” The court found the language of the statute mandatory, and that “[n]o discretion is provided in this context, assuming that the Court finds a need for substitution or supplementation.” The New Hampshire Supreme Court held the circuit court erred as a matter of law in ruling that RSA 170-C:11, IV mandated closure of the child’s RSA chapter 169-C child protection case and guardianship with DHHS as the child’s permanency plan. Accordingly, the case was remanded for further proceedings. View "Petition of New Hampshire Division for Children, Youth & Families" on Justia Law

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This appeal arose in the wake of the New Hampshire Supreme Court’s decision in In the Matter of Mortner & Mortner, 168 N.H. 424, 429 (2015), in which the Court held that the death of Theodore Mortner (Husband) prior to issuance of a divorce decree abated the divorce action instituted by his then-wife, defendant Lindsay Thompson (Wife). The Supreme Court declined on preservation grounds in that case to address whether a property settlement agreement entered into by Husband and Wife during the divorce action’s pendency survived the action’s abatement as an independently enforceable contract. Following that decision, plaintiffs Husband’s estate (the “Estate”) and his daughter Judith Mortner (“Judith”), filed this action against Wife, alleging breach of the property settlement agreement and unjust enrichment. The Estate and Judith appealed the superior court’s dismissal of their claims. Finding no reversible error in that dismissal, the Supreme Court affirmed. View "Estate of Theodore R. Mortner v. Thompson" on Justia Law

Posted in: Family Law