This year the New Hampshire Supreme Court upheld a conviction of a man for stalking, criminal threatening and witness tampering based on his Facebook posts. In the case of State of New Hampshire v. Brian Craig (https://www.courts.state.nh.us/supreme/opinions/2015/2015011craig.pdf ), Mr. Craig was found guilty of these charges after a series of posts directed at one specific victim. The victim worked as a bartender and waitress at a restaurant that Mr. Craig and his friends frequented. Mr. Craig tried to have a relationship with the victim which she declined. He began writing letters to her and the victim found the letters threatening and intimidating. The victim contacted the police and the police served Mr. Craig with a stalking warning letter. After receiving warning letter, Mr. Craig sent another written letter to the victim. The victim then obtained a domestic violence protective order. After receiving the restraining order informing him he was to have no contact with the victim, Mr. Craig began posting a series of comments on his public Facebook page. The victim had not friended Mr. Craig but found his posts through a Facebook search because the comments were public. After reading the posts, the victim called the police. Mr. Craig was arrested for the criminal charges including violations of the restraining order.
Mr. Craig defend himself by saying that he had not named the victim specifically by her name in his posts and did not send her the messages directly – the comments were merely posted on his public profile page. However, the Court found that Mr. Craig had specifically told the victim he had put comments on his Facebook page. When he did this, he was directing the communications to her. Mr. Craig had no other logical reason to make the posts on his Facebook page. The Court found that Mr. Craig was specifically trying to communicate his comments to the victim. The Court found that the comments were meaningless to anyone else except the victim and the intent was to stalk and threaten the victim.
When posting to Facebook, be aware that public comments can make a personal legally responsible for the comments made. It is best to vent any negative comments to your friends and in your private off-line diary and not on Facebook or any other social media.
Guardianships can come about in several ways, and are brought to the courts for different reasons. Guardianship over a minor person may arise as a precursor to adoption, as a challenge to a parent’s ability to care for the child, or as a result of an abuse & neglect case. While it is entirely true that a guardianship proceeding may be the last thing any parent wants to go through, it is important to understand that guardianships aren’t always a negative thing. When someone other than yourself is granted a guardianship over your child, it may be able to provide the support a parent needs to prevent any further negative consequences, and in turn, lay the foundation for a healthy and successful future for the family.
Each biological or adoptive parent inherently retains full authority over their child. This is guaranteed by our federal and state constitutions, as well as our state statutes. A parent does not lose any bit of that parental authority until the Court makes an order as such (or a court’s approval of an agreement). The basic principle of all guardianships, regardless of how they arise, rests on the finding that a child needs substitution or supplementation of parental care and supervision. The Court may grant a guardianship to a person other than the parent in order to provide that supplementation of care that the child is lacking. Sometimes, the courts will order a temporary placement for a child as the result of an abuse and neglect case. This is particularly unfortunate, as the parent against whom the abuse or neglect claim is found not only risks having their child taken from their everyday care, but also, will have a finding of abuse/neglect against them. A finding of abuse or neglect can have very serious consequences down the line, including possible termination of parental rights. If a parent recognizes that they are in need of some additional supports for themselves and/or for their children, it may be worthwhile to explore the idea of a consented-to (agreed upon) guardianship with a family member or close friend that the parent trusts and has a good relationship with the children. In this context, guardianships can be a good thing for the parent, in that they provide stability to the child, and could act as a delay or altogether preventative measure to DCYF becoming involved and potentially moving forward on an abuse and neglect claim.
Again, there is more than 1 way a guardianship can arise. It is important that you speak with an attorney at Shanelaris & Schirch, PLLC to understand all of your rights prior to entering into any agreements.
As we approach the holidays, tensions can run high amongst family members; that may be especially true for divorced or separated parents. As parents we want the holiday season to be filled with joy for our children as well as for ourselves. We reflect back on our holidays during our own childhood and strive to replicate the joy or replace what may be our own difficult memories with beautiful memories for our own children. For parents that are newly divorced or separated this time of year may be even more stressful as the pain of loss of the once intact family feels ever present. One of the best gifts that divorced parents can give their children is a peaceful holiday season. As difficult as it may be for you, the parent, it is more difficult for your children. They feel the painful loss as well, and want nothing more than to be able to spend time with both parents as well as extended family and friends. Those events and activities that make up our holiday traditions are important to them as well. So, while it may be difficult it is likely best if you are able to negotiate the holiday schedule well in advance of the holiday itself. Respect both families and extended families and their traditions, and above all, remember that your children are a piece of both parents and an appreciation and respect for all family members will show your children how to negotiate and resolve conflict in the most positive way.
Divorce and separation can be a difficult process for spouses to endure, particularly given that it uniquely requires true bravery, but also restraint. In cases where a spouse suspects infidelity, addiction or other dishonesties, it is not uncommon they feel they want or need to get proof of their spouse’s wrongdoing. All potential clients should heed this warning: the truth may not outweigh the risks, especially when those risks include possible state and federal criminal charges.
When considering recording telephone calls, attaching a GPS monitoring device to a vehicle, or perusing another’s email inbox, it should be stressed that even if a spouse is able to “catch” the other person in their wrongdoing, the evidence of that wrong doing may not be admissible in court if it was obtained illegally. In general, in order to record telephone or in-person conversations, there must be consent. Under federal wiretapping laws, at least one party to the conversation must consent. This one party can include you, the person recording. But, this State has gone one step further, and require “two-party consent” under our wiretapping laws. This means that all parties must consent to the recording of the conversation. There are some intricate caveats and nuances, but generally speaking, to discretely record a telephone conversation of other parties without their knowledge and consent will likely not be admissible in court to prove the very thing you are attempting to prove. Furthermore, by violating these privacy and wiretapping laws you could face criminal prosecution and expose you to a civil lawsuit for damages.
Lastly, even if a spouse is successful on proving adultery, the family courts in New Hampshire are unlikely to deviate so far from an equal split in assets/debts that would make the trouble of potential criminal prosecution, worthwhile in the long run. Reference the wiretapping and privacy laws applicable to you, for more specific information on the topic.
Attorney Cathy Shanelaris participated in teaching an educational class for the New Hampshire Bar Association’s Lawyer Referral Service to explain the court process and procedures for obtaining a child support order from the court. Please click on the link to see the video:
Alimony it is one of the most difficult issues that we grapple with in a divorce. If a case is appropriate for alimony (meaning one spouse has a need for financial support to get to a point of self-sufficiency and the other spouse has the ability to meet that need) the most difficult questions for spouses, lawyers and judges is how much alimony should be paid, and for how long. Unlike child support, there is no formula to determine what is appropriate, rather it is a judgment made based on the specific facts of the individual case.
Alimony can also be modified; in New Hampshire in order to modify an alimony award an individual must prove that there has been a substantial and unforeseeable change of circumstances that makes the current alimony award either improper or unfair. That is a standard that has been described as difficult, and a high burden to meet. The New Hampshire Supreme Court has recently clarified that this standard for modification does not apply to cases where an extension or renewal of alimony is being requested. Rather, if an individual is asking the court to extend the length of time an alimony award will last, the standard is lower and is described by the Court as “to establish that justice requires a renewal or extension” See, In the matter of John Lyon and Kimberly Lyon, 2013-401, slip op. (May, 2014). https://www.courts.state.nh.us/supreme/opinions/2014/2014039lyon.pdf
Our very own Cathy Shanelaris is 2014’s recipient of the Ted Jordan Award! This award is given in memory of Ted Jordan, a member of the Nashua Bar Association from 1967 to 2002. Ted is remembered for his adventurous spirit and lifelong concern for helping to improve the local bar association and community, and the award is presented annually to an individual who embodies Ted’s same ideals. This award is particularly special because Cathy was selected by her fellow Nashua Bar Association members in recognition of her efforts and contributions to the practice of law, and to the community she serves. We congratulate Cathy on this well-deserved honor!
The Affordable Care Act (“ACA”) went into effect on January 1, 2014 and requires that all parents must provide health insurance coverage for themselves and for their children. Failure to maintain health insurance for yourself and your children will result in having to pay a penalty to the IRS. The ACA has provisions that affect how divorced or separated parents provide health insurance for their children.
The ACA provides that the parent who claims the child as a dependent on their federal income tax return is the one required to provide proof of health insurance coverage to the IRS when the tax return is filed. The responsibility of reporting the health care coverage for the child cannot be assigned by a court order or divorce decree. For example, if you are the custodial parent with the tax deduction for your children and the non-custodial parent is ordered to pay for health insurance for the kids, the custodial parent remains liable to the IRS to show proof of insurance coverage or pay a penalty. If the non-custodial parent has not complied with the court order and has failed to provide the insurance, the custodial parent claiming the deduction for the children will still be the one to pay the penalty.
The ACA may create the possibility for problems among parents where cooperation and communication is difficult if the dependency exemption switches between parents from year to year or the non-insuring parent always claims the children as an exemption. The parent with the dependency exemption may find it difficult to provide proof of insurance to the IRS because the other parent carries the health insurance and refuses to provide that proof. In high-conflict relationships between separated or divorced parents the issues of medical insurance coverage and tax penalties could drive them back to court.
The law does provide a mechanism for individuals to file for an exemption from having to provide insurance for various reasons such as religious reasons, incarceration of the parent who was providing health coverage, if coverage is deemed “unaffordable” or for some other hardship under the law. Parents who are currently in the divorce process may need to have an order or agreement that the person who covers health insurance be ordered to provide proof of insurance or reimburse the custodial parent for penalties incurred from the IRS for failure to provide proof of insurance. Parents should seek advice from their tax preparer, accountant or CPA when preparing their taxes.
If you are modifying a child support order in New Hampshire, chances are when you go to court you will appear before a child support referee. What is a child support referee and what types of authority do they have are questions that many people have when they first arrive in court. The first thing you will notice is that the Child Support Referee does not wear a black robe, and does not sit on the judges bench. In fact, most child support referee hearings are held in the courtroom, but sitting at a table. The authority of the child support referee comes from RSA 490-F:15. Referee’s are attorney’s who have been appointed by the Court to hear cases of child support, medical support, paternity and other child support related matters. The child support referee hearing proceeds much like any other hearing in a Family Division courtroom – both parties have an opportunity to speak, to present their case with testimony and evidence then the child support referee will make a decision. A decision is not made that day, but the information is taken in by the child support referee, considered and then they make a recommendation to a marital master or judge and the Court Order is entered. If you are dissatisfied with the Court’s order, you cannot appeal to a judge or a marital master. Like any other family division case, you are entitled to file for a reconsideration of the order within 10 days, and if you are still dissatisfied an appeal to the NH Supreme Court is your recourse.
If you are being charged with a criminal offense, you usually don’t have notice of that until an officer or Sherriff is knocking on your front door. But, in some circumstances, if the police department is still in the preliminary stages of their investigation and have yet to decide whether or not they are going to charge you with an offense, you may find yourself in a unique position. The earlier you cooperate with the investigating police department, depending on the charged offense(s), it may be more likely that you will be able to reach a favorable settlement. If a police officer contacts you in an effort to collect information related to an incident, contact an attorney right away. Your attorney may be able to find out ahead of time if complaints against you will issue, therefore, may have the opportunity to accompany you to the police department to turn yourself in. This will not only spare you the stress of being arrested in front of your family or coworkers, but also, will demonstrate to the prosecuting officials that you are willing to cooperate in an effort to resolve the issues at hand.