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If I could ask parents to do one thing, it would be to not involve their children in their disputes with the other parent.
Sadly, it has become the norm that the families I work with in whatever capacity engage in a type of warfare that only causes more suffering. This suffering can range from exposing the children to constant conflict, which we know heightens anxiety and has other significant health effects, to the most severe form of parental interference, where the child aligns with one parent over another, and steadfastly refuses to see or engage with their other parent.
The problem with all of this conduct, besides the obvious, is that the problems created as a result of it are not fixable by the Court System. Courts are great at deciding whether someone stole your horse, but they are completely lacking in the ability to manage or fix anything complicated, like families. But we have a “Family Court” you say? Yes, I recognize that, and it is a place where one could go to have this sort of problem solved. But, like going to a mechanic, you’ll likely leave with the problem you came in with, that annoying moan you’ve nick-named “Moaning Myrtle”, but also learning that you have other problems with the car that need to be fixed, and an empty wallet.
The family court system is very much broken, underfunded, and operates in doling out retrospective relief that will be as short lived as a quick breeze. The court, and more often the parties by agreement as approved by the court, tells the parties what the rules are. It is up to the parties to report back to the court that one or the other or both aren’t following the rules. Then what? The court holds a hearing many months later, may order the parties to mediation to resolve their own problems (and while I am a staunch believer in mediation, these types of problems are usually not remedied by mediation), or listens to each party speak for a grand total of 15 minutes each and makes a decision that will impact them moving forward. Do the math. The court opens at 8 and closes at 4, generally taking an hour for lunch. In a given day, your judge could be hearing 14 cases a day, which equals at least 28 people reporting the sins of the other, and that is if they are truly efficient, all things being equal. There isn’t a person alive who doesn’t think their case is unique; it is unique – to you. The sad truth is that in family court, the names change, but the accusations are all the same. Your lawyer, the judge, the guardian ad litem (if you are lucky enough to have one), and the clerk have heard and seen your problem a gillion times. In any event, your overworked judge (and they are overworked) who has heard the same complaints 13 times that day will issue, after taking the matter under advisement and you waiting with bated breath at your mailbox, an order of contempt.
Big. Fricken. Woop.
While I recognize I am an officer of the court, an actor in the system, I gratefully grasp the First Amendment when I tell you, as insider, that civil contempt is more or less the equivalent of Mom or Dad yelling at you. If the parties are unrepresented, it will amount to nothing more than a stern narrative order telling the parties which one of you was the bad monkey this time around and NOT to do it again. If one party is represented, you might be granted attorneys fees, which your lawyer will then have to chase for you, and in the mean time you still have to pay them directly to your lawyer, because despite the public perception that lawyers are well off, we are all barely surviving. It is the very rare scenario that any drastic action is taken. You’re more likely to walk out of the court room receiving an order requiring co-parenting counseling that will cost time and money, since it is not usually covered by insurance because it is Court Ordered and considered forensic by most insurance companies, than you are to obtain any substantive changes.
Given my unmitigated honesty in calling life like I see it, people have asked why I have never aspired to being a judge. It’s simple. It’s a) too political, b) If appointed, I would make it through half a day before the old fashioned stage hook came to remove me from the theatre, as I simply would ignore the politics and make decisions that were unpopular, but right; and c) although I have great respect for many of our judges (because that respect is mutual), the job itself is one where you are trying to herd cats. Have you tried making Mr. Pickles do something he doesn’t want to do, if he will even listen to you? Judges that do make decisions and take definitive action are eviscerated in off political years and/or have to respond to complaints. The job of a judge is stressful, having to serve the public (ever work retail?), manage the lawyers who appear before them (and in a small state like ours in NH, are not one shot wonders), work with the clerk’s office who you do not employ directly, answer to your Administrative Judge who has an agenda all their own, answer to the Administrative Office of the Courts, who wants to be able to produce for the Chief Justice each bi-annual budget process the “right” statistics that will show that while the Court is efficiently using their resources they were given, the legislature must, must give the Court System more resources because they were not enough. Judges have an impossible case load, quasi-deadlines that they have to meet, but yet still make good decisions for the people who are relying on them to decide life’s most important things, after being given limited information. They often travel between courts. Forget being sick – can you imagine trying to reschedule an entire docket for people who have been waiting between 3-6 months for their 30 minute slot? No, you take the Imodium or the Pepto, ignore the diarrhea, eat cough drops, and suck it up. They have to avoid the appearance of impropriety, which means their personal lives are cloistered. You have be careful about what you support, where you go, who you speak with, what you speak about, and the list is utterly endless. Provided that the judge is an honorable person, I often look at them with pity. This alleged pinnacle of achievement is not for me. I can be much more effective where I am. I work with clients to solve their problems, grabbing the tool I need from a huge collection I’ve grabbed along the way.
Sometimes, solving that problem means fixing the client. When I am faced with a parent that is convinced their child, whether s/he be 8 or 16, should know about the legal troubles plaguing the family or insist that the child be able to “choose” whether to engage in parenting time with the other parent, that they simply “don’t want to” go with mom or dad, my blood boils. Almost always, the reasons used to justify the child’s perceived right to decide can only be expressed in references to wrongs that no child cares about – like child support issues or lack of agreement on issues important to the parent insisting on the choice, or even a new significant other who doesn’t bother the child until it bothers that parent. I wish I had the power to flick a switch and ever so briefly place the insisting parent in the other parent’s shoes so they could understand the pain it causes. I wish I could put the parent into the child’s shoes to understand the complicated mix of feelings they have to manage. Years ago, a now retired marital master used to do just that. She would flip the parenting plan so that the offending parent was on the receiving end of what was being doled out. But, this is a horse stealing approach, the one the Court is good at executing: you took my horse, so I take yours. Signed, dated, delivered.
In years since, there is a recognition that these divorce or parenting cases are about the people not in the room – children. Children are not horses. Extreme approaches resulting in unexpected change can hurt children. Although, ironically, the court system has absolutely no problem removing a child from care under the guise of “child protection” or “child neglect” or “child abuse”, as long as the State is the one asking. It is these concepts, child protection, neglect and abuse, that we should probably begin to think about these high conflict family disputes.
Almost every parent that I have confronted about this problem denies they do anything “wrong”. You can’t fault them – no parent wants to admit they hurt their children. But, many are clueless of the harm they do, primarily due to the fact that they are so focused on their own needs. Some play an interesting game where they treat their children as mature in select situations, if it suits them. This too, in most cases, is completely unconscious. These same parents don’t afford the child the freedom to choose and decide when that means deciding something that parent disagrees with, for example, Johnny is absolutely mature enough to make a decision to not see Parent A, but they are not mature enough to own a car, have sex, drink, come and go as they please without curfew, and any number of things. One real life example that stands out to me is the child who is punished for not cleaning their room, but who the parent believes is “mature” enough to decide whether to have parenting time with their parent. That same child told the parent that they were not going to see them until the issue with the house was settled. A parent who tells their child about their legal matter essentially turns their child into a carrier pigeon. Abuse? I think so. Neglect? Absolutely. Does the court do anything about it? Not a chance.
I have never met a mature child. Maturity implies the ability to investigate, know options, and make a conscious decision to choose an option, knowing all of the consequences that may result, and be able to handle them appropriately. If a child were mature, that child would be able to know and understand the various parenting schedules, their benefits and disadvantages, and be able to choose which schedule, even if it meant that the schedule resulted in not seeing one of their parents as frequently or at all, and knowing that this will upset the parent. That child would be able to manage the disappointment, anger, resentment, and personal hurt that they will be inflicting on their parent, because of their choice, and still be able to go about their daily affairs without depression, anxiety, engaging in cutting behaviors, or developing an eating disorder. They will realize that the choice they made will impact their future relationship and all of the things inherently part of life: birthdays, holidays, games, concerts, proms, paying for college, weddings, birth of grandchildren, and death, to name only a few; and they may be slightly disappointed, but totally okay with it. The mature child would understand why the parent doesn’t go to their sports game or plays; why they aren’t contributing to the college fund, if they are able to do so, and why the parent is angry with them.
Adults understand that there are consequences to actions and that you can’t treat someone badly and expect help or assistance if you do. Adults understand that a decision to divorce, for example, means two homes, two sets of expenses, less time with your children than you had before, less cash flow because there is one paycheck instead of two, and less money to spend on non-essentials. A child does not.
When you involve your child in your legal disputes, you are seeking support and an ally, plain and simple. You treat your child like a peer, when they are not. This is confusing for the child, especially when “Real Parent” appears and re-emerges as an authority figure again. Children faced with negotiating this whiplash type relationship experience increased stress and anxiety. Children want to please their parents, and the parent with the two personalities makes that difficult. For parents who expose the child to the struggles associated with the break-up in a relationship or the financial difficulties, their children learn to be protective, feeling an obligation to take care of their parent (“parentified”) and that they have any control over the legal outcome of the case (“adultified”). What should be a period of discovery and learning turns into a period of worry and concern. The roles that these children assume, with the ensuing stress, disrupt their development, increase stress and anxiety, which we know changes a body on a cellular level.
How do you know if you are involving your child in legal matters? If you an answer yes to any one of these questions, you have involved your child in your legal matter and you need to stop.
1. Have you shown your child legal paperwork like motions or orders?
2. Do you tell your child the details of your meetings with your lawyer?
3. Do you tell your child about the details of court hearings?
4. Do you tell your child that they can choose what parent they want to live with?
5. Do you tell your child when child support hasn’t been paid?
6. Do you tell your child the reasons for why you can’t meet a financial want or need is because of lack of support?
7. Do you bring your child to your meetings to with your lawyer?
8. Have you listed your child on your witness list or brought them to court, mediations, or settlement discussions?
9. Do you discuss legal matters within ear shot of your child?
What do you do if your child asks you questions about your legal matter? You establish boundaries and tell your child that the child’s parents (Mom and Dad, Mom and Mom, Dad and Dad) are doing what they can to make sure that s/he is going to be well taken care of and happy, and that they shouldn’t worry because it will be okay.
Oh, your child demands to know? You have a precocious one. Yours is smarter, more mature (see above), and will be President some day. I see. Like in any other situation, children will test and push, and it is important the parent not give in by giving the child information, in other words taking the path of least resistance. You wouldn’t do it with ice cream, clothes, electronics, drugs,whether to go the doctor or school, or anything else – don’t do it here. This is a prime opportunity where the Universe calls on you to be The Parent. You restrict your child’s access to porn and violent content – treat this information the same way.
Divorce and parenting disputes no doubt help create a feeling of loneliness when one way of living abruptly changes into something else and which is seemingly worse. It is natural to want to cling to what you know and cherish. It is not natural to expose your children to the legal wranglings of your personal life, no matter how much it impacts your children. That is what friends and family are for, to talk to age appropriate, similarly mature people about life’s struggles. It is unnatural and wrong to burden your children with what are your problems, when they lack the ability to understand, appreciate, or even at times make sense of the ground shuddering impact a major life change like their foundation, their parents, no longer being married or living together means for them and for their tomorrow. You aren’t in this together. You are in it, and you need to escort your children to the other side, with your other parent, separately.
Even with the most stubborn parents, I find it useful to explain that not everyone lives forever and it is unlikely that any court will order no contact with a parent barring the big three: drugs, alcohol, or sex abuse. Therefore, it might be important to take a deep breath and consider what will happen as your casket is being lowered into the bowels of the earth and they, the other parent and the children, stand across from each other. What will that conversation be like? What will their new life be like? What will they say to each other? What will they say about you?
I am not your usual lawyer. I hate suits. I speak my mind and say the thing that is often on everyone’s minds. I am known for not sugar coating a message or blowing sunshine up a fanny, even if you pay me. Because of a preference for transparency, I will let you in on a well-kept secret: there isn’t a lawyer alive that doesn’t wake up each day and say, “the practice of law would be so much better without clients.”
I operate a small law firm, in a society that demands instantaneous gratification, and I work in a legal system, particularly in Live Free or Die New Hampshire, that has yet to catch up to the age of industry. The tension between these two very different things is demonstrated when folks expect to treat their legal matters like ordering a Quad-Venti-Cinnamon dolce-Mocha w/ whip. They want it now, and they want it the way they want it. One problem: I am not a café, a grocery store, or a fast food drive thru.
Even if lawyers are the butt of late night monologues, everyone understands that a relationship with one’s lawyer is special. It’s the one relationship where you can speak your mind and no one can tell your secrets (except a few very rare and isolated circumstances). The technical term for this secrecy is “privilege”.
Nonetheless, I am challenged with enough frequency by potential clients who want to bring another person into their meetings with a lawyer.
I get it. It’s frightening, you are under stress, and the person who you brought is a support, comforting, and someone you know. Many times, the person is also the one who will be footing the bill for legal services and you may feel, however denied if asked, a sense of obligation to include them.
Here’s the problem: that privilege only extends between the client and the lawyer and anyone employed by the lawyer. It’s like a tight seal formed around a bowl; if the cling wrap has a gap, then the sauce falls all over the kitchen floor while you are on your way to work wearing white. Yes, I am going to say it: your significant other is that Gap of cling wrap that you miserably struggle with to stick to the bowl.
Without knowing anything about you I can foresee a number of situations which would throw a wrench into your case: what if you break up? What if a problem arises and the Gap says something or does something detrimental to the case, such as lie, mistakenly say something or what the Gap says is in conflict with what you say, or you and the Gap have a fleeting dispute with you that involves handcuffs and restraining orders? These aren’t even the weird circumstances that can arise. They are very common.
There is no doubt that significant others can provide valuable information in many circumstances, but bringing the Gap to your meeting can create havoc which may result in your accommodating lawyer having to quit your case, at the least opportune time or may result in you regretting that you included this person at all. Did you know that a good opposing lawyer will ask your Gap in a deposition or on the witness stand how many times they met with your lawyer and what you talked about to find information that can’t normally be obtained or to discredit your significant other as a witness? Can you imagine when your latest legal matter is put to bed, your relationship falls apart and you find yourself in court again, this time having things that no one would have known except for those conversations with your lawyer, thrown in your face?
It should come as no surprise that good family law practitioners are trained in identifying weird situations. We specialize in weird. For example, when I run across this problem, I think about who is pushing to be in the room – is it the client or the significant other? Depending on the answer to that question, I may become concerned about controlling or possibly abusive behavior, the form which is a hindrance to representation and the latter which is never good in any situation. Many times I observe people who are struggling with a legal matter involving a person they label as abusive, and arrive to the office with someone who is equally as controlling.
In a recent interaction, despite the client doing an excellent job at talking about the problem, the facts, and the outcome they sought, the meeting was interrupted by staff telling me that the Gap, who had been denied entrance to the conference room, and was practically pacing in the waiting room, was insistent on talking to the client. I was happy to stop the meeting, and allow this to play out, except the client didn’t want to, and wanted to keep talking. The client wanted to retain the firm, but immediately after talking to the Gap, they wanted to “think about it”. Subsequently, I received an email to allow the Gap into the room for future meetings, looking for a waiver of what was perceived to be a policy. We said no. I’ve learned over the years that when I try to accommodate the weirdness that we often face in this area of practice, that it will back fire. Did I not retain a client? Yes. Am I upset about it? No. Ultimately, I avoided a lot of aggravation over who was my client and who was really giving me instructions, also very important for lawyers. If the relationship begins this way, it won’t last long, and will be an ugly end.
While the necessary aggravation lawyers experience having to explain to people why they can’t do what they want the way they want runs like a subway under a city street, a constant rumbling that is heightened by situations like this one, lawyers do want to help you. We really do know what we are doing. If we tell you that we can’t do something, or that you shouldn’t do something, listen and follow our instructions. Otherwise, why are seeking our help?
You can always talk to the people close to you about your legal matter (except if prohibited by court order). But, you don’t have to do it with your lawyer in the room. Ask the love of your life to go get you coffee. It will all be okay.
Everyday I meet with new clients who are seeking help with their family or other legal matters. Some are able to afford to write a check without a hesitation. Others borrow. Others even still scrimp and save to be able to pay the retainer that is required in order to secure the services they seek.
As part of this representation, in family matters involving children, I attend the First Appearance scheduled by the Court. A First Appearance is the first event for families entering into the NH Court System. It is where the judge addresses everyone who has filed or received court paperwork, and where court staff schedules these parties for their first legal event, usually a mediation. I attend these meetings for several reasons: first, most clients are scared, having never been to court before, and they feel reassurance by my being able to lead them through this legal event, however short and inconsequential to their individual case; second, in order to avoid scheduling malfunctions, my participation in scheduling mediation helps to avoid delays due to rescheduling; and third, like my clients, I am able to hear the court speak about their philosophies on processing these cases, and always learn something new, which ultimately helps me direct my client’s message to the Court in more efficient ways.
The fact that emerges from the Court’s presentation and that remains the most shocking to me is that only about 30% of people in the Family Court System hire attorneys. That is, 70% try to do it by themselves. This fact often explains why many of my clients are people who have been in court before, but come to me to try to “fix” what isn’t working or what is a real problem. Sometimes I can help, sometimes I can’t. But I always wish these client’s came in sooner. Inevitably, the expense of a lawyer is always more when we are fixing a problem, rather than being involved from the beginning.
But, before I meet with these clients, my paralegal, an amazing resource to our clients, is often asked by potential clients calling whether they really need an attorney. In trying to help her respond to this question, my answer is simple:
“If your appendix were rupturing, would you go to your kitchen, pull out a knife, and operate? No. You would go to a professional who has medical training and license to take out your appendix in a facility that has all the right equipment to keep you alive..”
Years ago, I saw a commercial for some insurance company, I think, although I can’t be too sure. And, in every version there was a person on the phone in their home, with various medical instruments strewn on their dining room table, taking instructions from a doctor on the other end of the telephone. I remind people of the absurdity of that commercial. I tell clients that I wouldn’t attempt to fix my car, my pipes, appliances, or anything else, but instead hire the right person for the job. While it costs money, in the long run, it costs more if I try to do it myself and it considerably reduces the chance that I will do significant damage to the item needing fixing, to myself, and to everyone else around me.
One area where a lawyer can help is to tell you whether your circumstances are appropriate to bring before the court in the first place. A good lawyer will ask you questions, listen to your concerns, and give you an honest evaluation of whether you might prevail in Court. Lawyers who are regularly in court and very busy are the lawyers to hire. While you may wait for an appointment, they are the lawyers who have the experience to determine how the Court will approach your case. Your lawyer should also not be afraid to tell you something you don’t want to hear. If you aren’t going to be successful, your lawyer should tell you that, and you should be open to hearing and accepting their criticism. People who proceed forward without a lawyer, when they have been warned against bringing a case should not be surprised when they don’t prevail. In addition, in our office, we keep our relationships honest: we charge for consults. We will give you real information and don’t have to worry about a sales pitch. If I only meet with you for an hour, you at least get an hour’s worth of real information and advice, and no fluff as to why our office is good. We don’t need to tell you, we show you. We also reduce the number of appointments with the time wasting person who has no intention of hiring us, thereby allowing us to focus all of our energies on the people who have. When have you ever gotten anything for free that was worth something? I haven’t.
If you read the newspapers these days, you will find that lawyers and the legal profession are being attacked regularly. It’s a long standing tradition in my profession, so I try to ignore it as much as possible and not take it personally; the attacks are almost as vanilla as the two dominant political parties picking fights with one another during campaign season – they blend into the background until they sound like Charlie Brown’s school teacher (Wahh. Wah. Wah. Wahhhh). Nonetheless, it is apparently necessary that I point out that there is this misunderstanding that if you can think, can write, and can speak that you should be able to be your own lawyer effectively. After all, real lawyers make it look easy, don’t we? Nothing can be further from the truth.
For every hour of court appearance, I can remember, at times fondly and at other times with a shudder, the countless hours I spent reading cases in my textbooks, briefing them, discussing them in my three years of coursework, without confidence applying them in my externships and summer jobs, reviewing and honing principles of law in my bar review courses (2), and regurgitating on command during my two day exam which involved nasty, tricky multiple choice questions and state specific, subject specific essay questions. Those hours also included learning, understanding, and applying the rules of ethics for a required exam, these same rules that guide a lawyers daily actions with everyone, even when we are not wearing our lawyer hats. Finally, those hours also include the years – years – of daily practice, hearing people’s real problems, learning the nuances in the law, adjusting to the local practice rules which seem to change regularly, attending continuing education classes which advance my knowledge, and hearing and filing away snippets of information from every encounter and appearance in court in front of a Judge or Master. By the time we are engaged in active practices as primary lawyers on our client’s cases, we have an encyclopedia of knowledge that informs our every question, strategy, and action. We have learned to package information in a special way, in a special format, which calls on the same, time honored education that all lawyers and judges receive, so that one particular word can direct a Judge in the direction I want to take them, by calling on settled concepts of law or a particular series of cases.
The reality of the disparity between the effectiveness of my training and skill and the lack thereof of my opponent 70% of the time, the unrepresented litigant, is never so stark as when I sit in the back of the courtroom and watch people who are unrepresented try to tread water against a lawyer, even a bad one. It shows in the way they are dressed, the way they speak, the way they handle evidence; it is the difference between Tom Brady and Pop Warner. However, the message that is broadcast to the public is that the lawyers are the problem, when the lawyer is just doing the job they were trained to do against an opponent who simply doesn’t have the same encyclopedia of knowledge, and who shouldn’t be trying to represent themselves in the first place. It is almost like an unintended blood sport, where an unsuspecting citizen is struck repeatedly by the weapon of knowledge and skill. The result of course being that the unrepresented party walks away feeling like the system failed, blaming the court, the lawyers, and anyone else in striking distance. In many of these situations, as I have personally seen, the unrepresented person would have prevailed if the Judge could have been taught the right set of facts, with the right legal references, with the right documents, following the right procedure. But, the Judge can only make decisions based on what is presented in the courtroom, and can’t help the unrepresented person “try their case”.
Lawyers aren’t the problem. Judges aren’t the problem. Our system in NH works. Like any system, it works when you have all the right parts, including a lawyer knowledgeable and experienced in the area of law for which you require assistance, who can answer your questions, guide and advise you, and communicate with the court, when all else fails.
So, yes, you do need a lawyer.
In NH, the Family Court looks to a statute, legislature made law, to decide whether a parent can move. The law is located at NH RSA 461-A:12 Relocation of a Residence of a Child.
Generally, in order to relocate, a parent must prove by a preponderance of the evidence (more likely than not) that the location is for a legitimate purpose and that the proposed location is reasonable in light of that purpose. If the parent who wishes to move can prove these two requirements, then the burden shifts to the other parent, opposing the move, that the proposed relocation is not in the best interest of the child.
There are several cases, decided by the NH Supreme Court, outlining factors which help guide the Family Courts in deciding whether something is legitimate or reasonable. However, the factors the court will consider can be best summarized in the following list:
As you can see, there is no litmus test for deciding these cases. They are very fact and family specific. Many times, the Court finds in favor of the non-moving parent, in order to maintain the relationship to the child.
As always, this information is not meant to replace legal advice from a licensed attorney who has had the opportunity to hear all of the facts and ask important questions in order to form their opinions. If you are facing a relocation, either as the moving parent or the non-moving parent, call a lawyer.