On behalf of my children, Meighan, Jamie and Erin, I want to express our unbounded appreciation to my colleagues, members of the judiciary, members of the bar and untold friends for the innumerable and overwhelming expressions of sympathy and kindness during the recent loss of my father and wife.

The kindness of all who attended the services and funerals, those who sent flowers, cards and offered their condolences, comforted and strengthened us in our time of tragedy. It is those remembrances that give us the courage to continue.

Judge James J. Barry, Jr.
NH Superior Court

Perreault Child-Custody Standard Supported
By Todd Prevett

I am writing in response to attorney Marge Hallyburton's letter (published in Jan. 17 Bar News) regarding a bill to modify the holding in Perreault v. Cook, 114 N.H. 440, 443 (1974).

I respectfully disagree with attorney Hallyburton's desire to change the Perreault standard. Although there is indeed a heavy burden placed on the party that desires a change in custody, I feel that the great majority of the time, such a burden discourages needless litigation and short-term controversy between the parties to a previously settled custody battle.

I have practiced family law in New Hampshire, Massachusetts and Maine since being admitted to each jurisdiction. I have represented fathers and mothers, both wed and unwed. From my time practicing law in Massachusetts, which uses the "best interests of the child" and "substantial change in circumstances" standards when addressing a complaint to modify physical custody, I have seen numerous cases with the following course of events:

Mother obtains custody of child in the initial proceedings. Father pays child support. Mother suffers a short-term calamity of a financial, employment or relational nature. Father immediately files to get a change in physical custody, alleging "best interests of the child." About nine months later, the court grants the father's request for a change in physical custody, which at that moment in time is probably appropri ate. Coincidentally, at about that time, the mother has solved the calamity by obtaining new employment, refinancing her debts or escaping from an abusive relationship. Hence, the parties are back in the positions they were in before the complaint for modification was filed, yet now the father has physical custody and mother now pays child support. What should mother do? File yet another complaint for modification for physical custody? What should the court do now, be forced to reverse its own prior judgment?

In my humble opinion, the Perreault standard fulfills a very real need in the family law field: to prevent the needless short-term "flip-flop" custody arrangements that I see so often in Massachusetts. Perreault still allows a party to petition for a change in physical custody when an overwhelming event occurs in the life of one of the parties. However, I think Perreault rightly forecloses on the large number of frivolous, spiteful and selfish requests for changes in custody.

Children need long-term stability, not constant and repeated upheaval of their living arrangements. Although I'm sure there are situations where Perreault may do a disservice to some litigants, I feel that this is substantially outweighed by the certainty, finality and judicial economy of the initial child custody proceedings.

Thoughts on the State's New Underage Drinking Law
By Judge Edwin W. Kelly

IN 2001, THE 37 district courts of this state handled approximately 3,500 cases involving the charge of underage possession of alcohol. The penalties prescribed by law included a minimum mandatory fine of $250 for a first offense and $500 for a second offense. The fine, by the way, is one of the few returned to the town in which the arrest took place.

In each case resulting in a conviction, the state was able to prove that the under-21 defendant had actual possession of a vessel containing alcohol.

Before Jan. 1, that was the requirement of the law based upon prior legal positions enunciated by the Attorney General's Office. In other words, prosecutors were counseled by the Attorney General's Office that the use of what is known as circumstantial evidence, or indirect evidence, to prove an under-aged person possessed alcohol was prohibited. The resulting anomaly was that although such evidence was entirely permissible, indeed probably the most commonly relied upon to prove all other offenses including homicide, it could not be used to prove the violation-level offense of possession of alcohol by a minor.

Perhaps the most significant change brought about by this new legislation is that effective Jan. 1, circumstantial evidence is admissible in these cases. The arresting officer may now consider all of the evidence available, including the presence of a vessel, the odor of alcohol, commonly observed symptoms of impairment, and the results of a voluntarily given breath test in determining whether there is sufficient reason to make an arrest.

Much has also been said about the potential for license suspension in these cases. It is important to understand that the new amendment did not create this sentencing option. The courts and the Department of Safety have had this authority and have used it judiciously since 1989 for those people under 18 at the time of the offense. This law simply expands its use to 21, updating the previous law to today's age of majority for alcohol consumption.

[In a recent letter to a local newspaper], a writer argued that the new law unfairly discriminates against those under 21. It should be borne in mind that the laws prohibiting the sale, use or possession of alcohol by minors are, indeed, directed at a limited class of individuals - that is to say those people who are not old enough to consume it. This is what is known as a status offense. It is arguably no different from laws prohibiting certain conduct by other classes of individuals such as real estate brokers, bankers, lawyers and so forth.

Finally, our New Hampshire Supreme Court and other courts around the country have consistently held that the privilege to drive is exactly that - a privilege and not a right. Our criminal sentencing laws contain a number of legislatively created restrictions on privileges and rights. For example, this state prohibits anyone convicted of a felony against a person or property from possessing a firearm; thus, one who is convicted of stealing a pair of skis valued at over $500 may not possess a firearm. An argument can certainly be made that a minor who possesses alcohol (and in most cases has been consuming it - not just possessing it) is a greater threat to operate a motor vehicle after having consumed the alcohol than a convicted thief is to use a firearm illegally.

Study after study, not to mention our everyday experience, demonstrates the dangers of the use of alcohol by minors, which include not only the obvious short-term risk of injury to themselves or others, but, also, the long-term physical and emotional impact. It is elemental that the purpose of sentencing in criminal cases is to deter future violations of the law, punish the offender and offer the possibility of rehabilitation. The creative use of these sentencing options in appropriate cases should serve all three purposes and our communities as well.

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