The Law Firm of Bucknam Black Davis PC

Enforcement of Family Court Orders–Vermont and New Hampshire comparison

I have written before of the frustration  I feel for my clients who do not understand why  Family Court judges in Vermont seem to be reluctant to enforce family court orders.  Recently in three separate cases  clients rightly expressed their dismay at not receiving prompt and decisive responses from the court when the opposing party flaunted a specific court order–resulting in financial distress for each client.  I can only caution patience and express sympathy for their plight. New Hampshire Courts, on the other hand, seem to be far more willing to enforce court orders and to punish miscreants in family court.

What is the difference between enforcement of Vermont Family Court orders and those in New Hampshire?  Let’s look  at the rules.   Vermont Family Rule 16 provides that a court can initiate contempt proceedings on its own motion or by motion of a party.  In my 33 years of practice, I have never seen a Vermont court issue a civil contempt proceeding on its own motion. Courts are reluctant to do so because they must not only be impartial, but they must also seem to be impartial to the parties in court.  A judge who issues a contempt citation on its own motion necessarily will seem not to be impartial to the litigant who is the subject of the contempt.

Rule 16 also provides that if a litigant files a motion for contempt, it must be accompanied by an affidavit, and the motion and affidavit, along with the notice of hearing, must be served by sheriff (or by certified mail, if the case involves minor children).  Rule 16 provides that alleged contemnor has at least 15 days to respond prior to a hearing.  This rule applies in both ongoing cases, and in closed cases.

Rule 16 also provides as follows: “The court shall issue an order initiating a proceeding only if the alleged contempt, if proven, would be a clear and substantial violation of a previous order of the court.”   Emphasis added.

Thus the rule not only requires  costly service of process of the motion on the violator, but also requires a high bar for the victim to prove contempt -and allows judicial  discretion on what is  a “clear and substantial”. violation.  As a practical matter, then, the person who is the victim of an opposing party’s defiance bears a heavy burden to bring before the court the violation and prove that the violation is clear and substantial.    Here is where I believe the Vermont rule needs to be changed.   The victim of the violation should not have such a heavy burden to prove that the alleged contemnor violated the order.  Why? Two reasons:  First, because as the survey respondents indicated,  the public believes that following court orders is of the highest priority, and shifting the burden to violators would send a message that the courts take violations of court orders seriously.  Second, when courts are reluctant to enforce orders, victims of violations of court orders must police the violators themselves, compromise their positions, or simply allow the violation to continue because of the expense and uncertainty of filing motions for contempt.  Litigants should not be put in that position.

New Hampshire’s   Family court contempt rule has less onerous procedures than Vermont’s.   Both allow punishment only after an opportunity to be heard, and require motions and affidavits in any post judgment proceeding.   However, if there is an ongoing proceeding, a New Hampshire litigant  need only file a motion with no affidavit, and service need only be by first class mail.  There is no provision for a period of time for the alleged contemnor to answer.

Substantively, there is also a large difference between the rules concerning a finding of contempt.  New Hampshire’s enforcement and contempt rule provides that the court may find a litigant in contempt  “upon a finding of the violation of any Court order”.  Thus the litigant need not prove a “clear and substantial violation”, as he or she must in Vermont;  merely that the order has been violated.

New Hampshire’s rule makes more sense.  First, if litigants are in the middle of divorce or other family law proceedings, any motion may be filed without an affidavit and served by first class mail in either state–except for a motion for contempt in Vermont.  To require  an affidavit and service for contempt motions as if the case were just starting adds an unnecessary burden on the victim of the violation, and provides no added protection for the violator.  Second, New Hampshire’s standard for a finding of contempt comports with how the public feels about violations of court orders.   Americans believe strongly that court orders should be strictly enforced.  After all, as one client said to me, if a court won’t enforce its own orders, who will?

Litigants in Vermont Family Court who are the victims of a violator of court orders deserve to have their orders enforced and to have the violator punished,  without having to shoulder the heavy  burdens  imposed by Vermont Family Rule 16.

 








Parental Rights and Responsibilities in Vermont in the Age of Facebook

 

In a contested hearing held in Vermont Family Court, Mother and Father each request sole parental rights and responsibilities of their minor children.

 Mother brings with her pictures of Father partying, drinking, and in compromising poses with the opposite sex, along with comments about how much he enjoys his night life, all posted on Facebook.

 Father is appalled, first because he doesn’t know how Mother got those pictures, and second because he is afraid that they will negatively impact his case for custody of his children. He had never “friended” Mother on Facebook; so he thought he was safe.

 This scenario is being played out more and more in the courts. Facebook has taken on an important role in many disputes, and lawyers have found Facebook postings can contain information that is useful in a court proceeding.

 For those of you involved in divorce or parentage proceedings regarding parental rights, you can be rest assured that your mutual friends and your relatives—many of whom are your “friends” on Facebook, have taken sides, and some will inevitably take the other parent’s side in any custody dispute.

 In addition, those “friends” who have taken the other parent’s side will be eager to let the other parent know about  your postings on Facebook, especially the ones that make you look like a bad parent.

 The first lesson is, then, for any litigant:  imagine the item you are posting being presented as an exhibit in court—because if it is online, it will likely be easily accessible by your courtroom opponent.  If you would be embarrassed to have a judge see what you are about to put online, do not click “post”.

 Father’s second concern—the impact of the Facebook pictures and commentary on his case—turned out to be groundless. Why? Because under Vermont law, what your nightlife is like is not admissible in evidence unless it impacts your children.

 Title 15, section 667 (a) provides as follows:

 ” Evidence of conduct of a parent not related to the [parental rights and responsibilities] factors in section 665 of this title shall only be admissible for the purposes of determining parental rights and responsibilities if it is shown that the conduct affects the parent’s relationship with the child.”

 Thus if a parent goes out partying, that evidence will only be admissible if it can be shown that the children are neglected or otherwise adversely impacted as a result.

 Facebook and other online social networks can be dangerous for any litigant.  However, if the information is only about a person’s social life not related to the care of their children, the information will not be admissible in any custody action in Vermont.

 

 








Results on custody and visitation survey

April 24, 2011adminCustody, Divorce

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We received a total of 81 responses to our survey about child custody and visitation.  You can view the results here and here(We sent out surveys to two separate lists; hence the two results.)Some preliminary comments:  first,  my comments will compare the results only with Vermont law. Second, I asked respondents about “custody” and “visitation”.  Those terms are no longer used in Vermont; “parental rights and responsibilities”  are used for custody; and “parent child contact” is used for visitation.  I used the former terms as they are generally understood by the public, and are more concise terms.  Third, there was a large response and many comments.  So these issues are important to many folks. Finally,  in three out of four questions, the majority of respondents recommended options which are not allowed or provided for in Vermont domestic relations statutes.   Domestic relations statutes are enacted based on what lawyers, judges and legislators believe is best for families–with little or no input from the families affected. This survey demonstrates that that these issues–which affect most families at some point in their lives–should be discussed with the public, and not just left to the legal community and legislators.

In the first question, respondents are asked if a child should be able to choose which parent he or she lives with.  Most said yes. In fact, the plurality said children should be able to choose at any age.  Only a small fraction said the child should never have a say.  Yet, in Vermont, the statutes do not allow children to express a preference for which parent they want to live with at any time.  Indeed, one person told me privately that they felt a sibling had been damaged as a child because the sibling did not have a say as to which parent the child could live with.  I have always thought it was best for children not to have a say as to where they live.  In my experience, there is a danger to allowing children to express a preference because I have seen children who want to take care of a needy parent, and children who want to please an abusive parent.  And even good parents can unconsciously manipulate a child.  However, my opinion has changed somewhat  based on this survey.

In the second question, respondents were asked how a child should be able to express a preference.  The vast majority said that children should be able to talk to judges in chambers.  That would not be allowed, unless the parties or their attorneys are present. It is a matter of due process for the parties to be able to at least have a representative in  chambers.  Parents have constitutional rights to the care and companionship of their children, and I do not believe allowing children to talk to a judge alone would pass constitutional muster.  In any case,  in my 32 years of experience in Vermont family courts, children have only testified once–not about their preferences, which is not allowed, but about some observations they had that no one else could testify to.  So, this answer was markedly different than what happens in Vermont family courts.

The third question involved whether there should be a preference for sole custody with one parent, or joint custody.  The vast majority said it should be in the judge’s total discretion, recognizing, I think, that each family is different.  Vermont statutes do not allow any discretion when it comes to joint legal custody–the parties have to agree, or the court cannot order joint legal custody.  In regard to physical custody, in Vermont,  the statute outlines nine factors the courts must take into account when determining physical custody, and because those factors are quite general,  judges have wide discretion. So the respondent’s answers matched what the statute contemplates.  In my experience, judges used to routinely award custody to mother with every other weekend to father.  That pattern has changed in recent years, with fathers being awarded custody more often than in the past, and with visitation much more frequent. However, in my experience, mothers still have an advantage, particularly when there are small children.

The fourth question asked whether parents should be able to request modification of custody and visitation as the children got older.  The vast majority of respondents said yes, with a plurality indicating parents should go to mediation first.  In Vermont, before there can be any modification of custody or visitation, a party must show there is a “substantial unanticipated change in circumstances”.    In my experience, judges consider a child growing older not to be an unanticipated change in circumstances;  thus custody and visitation cannot be changed.  Indeed, in a recent case where a teenager had refused to stay with a parent for over a year, even though the order provided for 50/50 custody.  The parent where the child lived filed a motion to modify, citing a substantial unanticipated change in circumstances.  The judge refused to modify the order, because he found that teenagers often have a falling out with a parent, so he determined this was not an unanticipated change in circumstances!

 








Child Custody and visitation–what do you think?

April 17, 2011adminCustody, Divorce

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Last week,  Alabama legislators introduced a bill which would change child custody laws in that state mandating shared custody between divorced parents  The bill has stirred up controversy, and it is not clear it will pass.  The Alabama bill is part of a nationwide trend of legislatures reviewing and revising child custody and visitation laws.  Today, Vermont and New Hampshire have very different laws regarding custody and visitation.  In Vermont, sole physical custody has been the norm, although that is changing as a result of a Vermont Supreme Court unpublished entry order several years ago.   In New Hampshire, shared custody is encouraged.   In addition, in Vermont, there is no provision for children to  express a preference regarding custody, while in New Hampshire, the courts are allowed to take into account a child’s preferences under certain circumstances.

Because of the changes that are happening in family courts, and because of the different approaches in Vermont and New Hampshire,  I thought it would be interesting if we did a survey of the public to see what you think.

Here is the link to the survey.   Particularly for those of you whose parents were divorced or separated during your childhood, or those who are now in a divorced or separated households with minor children, we hope this survey will give voice to your concerns and opinions.

 








Guardian ad litem frustration

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Vermont’s Guardian ad litem (“GAL”) system needs review and revision.  GALs are appointed to represent the best interest of children. They are used in family court litigation between parents, and in cases where the state has either taken custody of a child in need of care and supervision, or a child who has committed a juvenile crime.  GALs are volunteers and have a limited role:  they can only give the court an opinion based on the evidence they heard in court.  While GALs are expected to  interview parents and children, and some even interview teachers and counselors, they are not allowed to use the information gathered outside of court to provide the court with an opinion as to what is in the best interest of the child. Thus the system is dysfunctional: GALs are expected to gather information that they cannot use in court.   The worst part of the system in my opinion is the fact that GALs are volunteers.  Because they are volunteers,  there are few GALs to choose from and GALs are inadequately trained.  There are many dedicated and effective GALs, but too many GALs bring prejudices to their job that they refuse to set aside.  The major prejudice I have observed  in cases involving two parents is against men. I have seen the following happen too many times over the years I have practiced: A newly appointed GAL calls the mother and the mother’s atorney and gets their side of the story. The GAL does not talk to either the father or the father’s attorney prior to the hearing.  At the courthouse, the GAL may sit in the witness room with the mother and her attorney, and may not bother to sit down with father to find out his position.  None of this, of course, is lost on the father.  The result: the GAL has made up his or her mind before the hearing starts, and —surprise!–does not change his or her mind after hearing the evidence.  GALs who are this prejudiced are not harmless.  Parties who are treated unfairly by GALs conclude that our court system is biased, and lose faith that the legal system will treat them fairly.  Those parties often become bitter, causing unecessary rifts between parents, and even between parents and children.  The party who is treated unfairly may be less inclined to follow court orders because of loss of respect for the court system.

Vermont judges are professionals and treat litigants fairly and courteously.  It is rare for a client to complain that a judge appears biased.  The same cannot be said for GALs.   And because GALs are considered by parties to be representative of the court system,  they can do enormous damage to public perception of our legal system’s integrity.

What is the solution?  There should be a review of the GAL system to determine ts goals and effectiveness.  For example, other states, like New Hampshire, use professional, paid GALs who take a much more active role in determining parenting issues.  I am not sure whether Vermont should adopt such a system, but I believe that GALs should be adequately compensated to attract more GALs,  and adequately trained so that they understand their role as an impartial advocate for the children.








Preparing for the financial side of divorce

>The emotional issues associated with divorce often overshadow realistic consideration of the financial implications of the breakup of a marriage. Unfortunately, this reality may put one or both parties at financial risk because markets are always changing and financial records can become stale or lost. It is therefore important to address the financial issues early in the divorce proceeding.

First step: Preparing Financial affidavit–Form 813

In Vermont, one of the first forms a divorce client will be asked to complete is the Form 813 which provides a summary of his or her current financial condition including a listing of assets, liabilities, and a schedule of monthly income and expenses. This is a useful form that will help you determine what information the court believes is important in deciding the financial issues in your divorce. The 813 form is available online at http://www.vermontjudiciary.org/MasterPages/Court-FormsIndex.aspx. The information provided on the 813 will form the basis for discussion about the financial issues to be addressed in the divorce proceeding, but it is also a document that will become part of the record with the court. While the court does not require that the information on the 813 form be supported by documents, it is best practice to gather the documents that support the information, and keep it with your copy of the 813 form. In that way you can show your lawyer and the court how you arrived at the information on the form.

Step 2: Gathering records

The following are some of the financial records that you should gather and organize as soon as practicable in a divorce proceeding. They include documents that will support the 813 form as well as additional documents that will help you make your case in court:

  • Individual Federal Tax Returns for at least 2 years including individual W-2’s.
  • Copies of employment contracts.
  • Tax returns for corporations or LLC’s (owned or partially owned by you) for at least 2 years
  • Financial Statements for corporations, LLC’s, and/or sole proprietorships owned or partially owned by you for at least 2 years. These include income statements and balance sheets.

Bank accounts (including checking, savings, and money market accounts)

  • Copies of signature cards
  • Copies of check registers for past 2 years
  • Copies of monthly statements for at least 2 years
  • Copies of canceled checks for at least 2 years
  • Copies of all deposits including deposited items for 2 years

Investment Accounts

  • Copies of investment account contracts
  • Copies of monthly statements for at least 2 years together with related check registers
  • Copies of canceled checks for at least 2 years
  • Copies of all deposits and deposited items for last 2 years.

Loan documents

  • Copies on notes, mortgages, security agreements, and loan balances (can be obtained from your financial institution) for all outstanding loans.

Real Estate documents and information

  • 911 address
  • Current Deed
  • Valuation: listers’ cards or appraisals
  • Mortgage loan documents including notes, mortgage deeds, and bank statements showing current balances.

Retirement Accounts and social Security Entitlement

  • IRA, 401K, 403b, statements covering last 2 years and related contracts showing ownership and beneficiary information
  • Defined benefit retirement plans
  • Plan documents showing ownership and beneficiaries
  • Most recent statement showing amount of entitlement and payment options
  • Copies of Social Security Statements showing entitlement amounts, date of retirement, etc.

Credit Cards

  • Copies of monthly statements for past two years on all credit card account Insurance/Annuities Policies
  • Copies of contracts showing ownership and beneficiaries
  • Statement of cash surrender value.

While the task of gathering all of this information seems daunting, taking the time to do so early will facilitate the divorce proceeding and help control costs.

At our law firm, our motto is “Information is power”. That should be your motto when you are going through a divorce.








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