Bar News - November 16, 2012
Family Law: New State Law Adds Protections for Deployed Parents
By: Anna Zimmerman
Familiarize Yourself with NH’s Military Parents’ Rights Act
The New Hampshire Military Parents’ Rights Act, which went into effect June 12, 2012, provides new protections to parents in the military who are divorcing or are divorced. It applies to all cases involving the deployment and/or mobilization of a military parent. (For the purposes of this article, I will use the term "deployment" broadly, to include mobilizations covered by the new law.)
The following is a brief overview of the primary provisions of the Military Parents’ Rights Act, RSA 458-E.
1. No final orders shall be issued during a military parent’s deployment. Pursuant to RSA 458-E:2, I, a court "shall not enter a final order modifying parental rights and responsibilities and parent-child contact in an existing order until 90 days after the deployment ends, unless such modification is agreed to by the deploying parent."
This does not prevent the court from making applicable temporary orders. The statute recognizes that, in many instances, a deployment necessitates a temporary modification of the parenting schedule and, potentially, other parental rights and responsibilities.
Seemingly in partial contradiction to the above, RSA 458-E:4, II reads: "Nothing in this chapter shall preclude the court from hearing a motion for permanent modification of parental rights and responsibilities or parent-child contact prior to or upon return of the deploying parent…." (emphasis added). Read together with RSA 458-E:2, I, it appears a parent can seek, and even have a hearing on, a permanent modification during a deployment, but no final order on such modification shall be issued until 90 days after the deployment ends.
If a hearing is held during a deployment and the deployed parent can’t appear in person, the court must allow him or her to present testimony and evidence by electronic means, including telephonically or by video conference. However, if you are considering seeking a hearing during a deployment, take a close look at the Servicemembers Civil Relief Act, 50 U.S.C. §501, et seq., which provides additional protections for the deployed parent.
2. Temporary modifications. RSA 458-E:3 allows either parent to request a temporary modification of parental rights and responsibility to apply during the period of deployment. Stated simply, in any case where a parent enjoys parenting time with a child, or otherwise has parenting rights that will be materially affected by a deployment, a temporary modification may be put in place during the deployment. Similarly, if there is no permanent order in place, upon motion by either party the court shall hold a hearing and establish temporary orders. RSA 458-E:6, I. When no permanent orders are yet in place, an initial pleading filed to establish parental rights and responsibilities of the deploying parent must include "the specific facts related to deployment." RSA 458-E:6, II. This should include the approximate dates and location of the deployment, but if the location of the deployment cannot be disclosed, general terms such as "out of the county," or "the Middle East" could be provided.
Temporary orders are intended to last only during the deployment and "shall include" a transition schedule by which the original orders will resume within "the shortest reasonable time period after the deployment ends…" RSA 458-E:3, III. Temporary orders shall address parenting time during periods of leave from deployment, and the uncertainty of actual leave dates "shall not be used by the non-deploying parent to prevent parent-child contact." RSA 458-E:3, V and VI.
Once the military parent has returned from deployment, either party may seek an emergency modification of the temporary orders on "the grounds that compliance with the order will result in immediate danger of irreparable harm to the child…." RSA 458-E:4, I. Interestingly, the language of the statute allows for the deployed parent to file this request prior to a return from deployment, but does not include a provision specifically allowing the non-deployed parent to file before the end of the deployment. Ex parte orders may be issued upon a finding of irreparable harm.
3. Delegation of parenting time to third parties. Recognizing that the deploying parent often has family members or other individuals in his or her life with close relationships to the child(ren), RSA 458-A:3, IV specifically allows the deploying parent to "delegate his or her parent-child contact rights, or a portion of them, to a family member, a person with whom the deploying parent cohabits, or another person with a close and substantial relationship to the minor child or children for the duration of the deployment, upon a finding that it is in the child’s best interests." It is important to note that the individuals to whom such rights may be delegated is far broader, with regard to whom such rights may be delegated, than just the grandparents and stepparents that can seek "visitation" pursuant to RSA 461-A:6, V and RSA 461-A:13. While RSA 458-E:3 allows the deploying parent to make this delegation, it does not create any new right for individuals themselves to request parenting time in the deployed parent’s absence.
4. Impact of deployment on orders of support. RSA 458-E:2, II specifies that an "absence" associated with a military deployment shall "not be the sole factor supporting a change in circumstances" for either a modification in child support (RSA 458-C:5) or in support ordered incident to a guardianship (RSA 463:13). It is too early to fully determine the practical implications of this provision. It seems that in most cases where there is either shared residential responsibility or the parent with primary residential responsibility is deployed, a temporary change in the parenting schedule will result in a change in the allocation of the child(ren)’s costs each parent bears and will be sufficient to justify a modification of support. The change in circumstances is not the absence of the deployed parent, but the temporary shift in rights and financial responsibilities of the parties during the deployment.
5. Duty to cooperate and attorney’s fees. RSA 458-E:7 recognizes that there is not always time to work through the traditional discovery process to address parental rights and responsibilities prior to a deployment and requires parents to share certain information regarding the deployment and cooperate with one another. As most attorneys know, however, it can be difficult to require a party to be reasonable. RSA 458-E addresses this problem by allowing attorney’s fees and costs to be awarded for an "unreasonable failure" to accommodate the other party with regard to parental rights and responsibilities, "unreasonable delay" in resolving parental rights and responsibilities, failure to timely provide information about income and earnings, and any "[o]ther factors as the court may consider appropriate…" RSA 458-E:9. This provision applies to all of RSA 458-E, but in conjunction with RSA 458-E:7, provides one of the few instances where a party in a family law matter might be able to get attorney’s fees based on a failure to negotiate quickly and in good faith to resolve temporary changes in parenting rights and responsibilities.
While the full impact of RSA 458-E cannot yet be known, it is clear that this statute should be carefully reviewed in all cases involving a military parent. Even in the absence of a deployment, parties should be aware that there are procedures, protections and duties that will apply in the event of a future deployment.
Anna Goulet Zimmerman practices at The Law Offices of Maureen Raiche Manning in Manchester. For more on the special circumstances of military parents as they relate to family law, read attorney Zimmerman’s article, "Divorce in the Trenches" in the Summer 2012 issue of Bar Journal.