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A lovely article about my practice in the Monadnock Ledger-Transcript-May 20, 2017

Meet Lord BlackSword

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NH Supreme Court is expanding the inapplicability the Rules of Evidence to additional areas of Family Law-April 23, 2017

NH Supreme Court is expanding the inapplicability the Rules of Evidence to additional areas of Family Law.
The Rules of Evidence are what determines which facts and documents are admitted into evidence and which are excluded from evidence. In other words, what a judge is permitted to consider in making a decision or not consider.
You may think this is a good thing, if you believe this means parties can tell the court everything and don’t have to be concerned with “technical matters.” Unfortunately, that’s not at all what this means.
Without having a set of rules to follow, judges can accept whatever evidence they want to hear, or don’t want to hear, on any given day, in any particular hearing, however reliable or unreliable that evidence may be. Since the parties really don’t know what the judge will do, until she or he rules, they have a difficult time preparing for such a hearing.

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Getting the Court’s Permission To Move with the Kids-September 2, 2014

In New Hampshire, RSA 461-A:12 requires that the party who wants to move further away from the other party, and take the kids, prove that the move is for a legitimate purpose and that the move is reasonable in light of that purpose. The moving party’s burden of proof is the lowest burden recognized by law, a preponderance of the evidence, that what that party contends is more likely than not.

Beware of a GAL trying to increase the burden of proof, adding an additional requirement that the moving party prove that the move must “assuredly” result in certain things. This is not the law, nor are GAL’s “conclusions” binding on the Court.

When the moving party proves that the move is for a legitimate purpose and that the move is reasonable in light of that purpose, the burden shifts to the other party. Then that other party must prove, by a preponderance of the evidence that the move is not in the kids’ best interests.

In making this determination, the Court relies on the factors set forth in Tomasko v. DuBuc, 145 N.H. 169 (2000), which include:

1) each parent’s reasons for seeking or opposing the move; (2) the quality of the relationships between the child and the custodial and noncustodial parents; (3) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent; (4) the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move; (5) the

feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements; (6) any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and (7) the effect that the move may have on any extended family relations

Considering these factors, Judge Dalianis, in Heinrich and Curotto, 160 N.H. 650 (2010), cautioned:

The trial court’s analysis focused upon factor (3), the move’s impact upon the children’s future contact with their father, and factor (4), whether the move would enhance their emotional, financial and educational lives. Although there was evidence that relocation would have greatly enhanced the children’s lives (their mother would have had a lucrative job, they would have lived near extended family and been able to attend private school), the trial court denied the wife’s request to relocate, to my mind, principally because, if she moved, the husband’s time with the children would ” noticeab[ly] decrease.” I find this troubling. If an involved parent’s regular contact with his or her children is sufficient, in and of itself, to bar the other parent’s reasonable request to relocate for legitimate reasons, will it ever be possible for one parent to relocate when the other parent is thoroughly involved in the children’s lives?

I’ve tried a number of these relocation cases. They are not easy cases, legally or emotionally, for the parties or for their lawyers. Often, one party feels trapped and the other party feels the children are being stolen. It’s very important for the parents, as well intentioned as they may be, not to put the children in the middle. Though, of course, the children’s’ best interests must be explored and presented to the court.

As I just wrote, not easy cases.

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Justice is being privatized-July 28, 2014

The idea that justice can only be administered by the State is fading from the world. Slowly, but surely, justice is being privatized.

A recent survey of 1,000 of the largest U.S. corporations showed that 79% used arbitration to resolve commercial disputes in the last three years.

Currently, state courts are experiencing a large decline in the number of new cases, other than cases brought by the State and federal government against businesses and citizens.

State courts purport to offer speed and impartiality in the resolution of disputes. However, due to budget cuts, State courts are no longer speedy. Worse, an impartial judge may not be as desirable as a more experienced and more knowledgeable mediator or arbitrator. Further, I know of no peer reviewed studies which demonstrate that the courts are the best, or more efficient way, to resolve disputes.

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About those toy guns-June 29, 2014

We all want our kids to be safe when they’re in school, or anywhere, but at what cost?
How many school shootings have there been in the US? How many schools are there in the US? Considering that, how great a problem is this really? How many more freedoms are we willing to give up to “fix” this? Strip search our kids? Sky Marshals in every classroom? How much money are we willing to pay to “fix” this perceived problem? $500 more in taxes? $1000 more in taxes?

I was engaged by some parents a few years back whose son was suspended for drawing a picture of a handgun against the school’s “zero tolerance” policy.
I called up the principal, identified myself, and complimented him on his proactive stance.
He appeared confused, so I explained that if he had not suspended my clients’ child, who knows what next could have happened?
The child could have next drawn a rifle. Then, a grenade launcher. Perhaps, followed by a tank. Before we knew it, we’d have nuclear winter!
The child was reinstated forthwith.

Shouldn’t we set policy, and live one’s life, considering probabilities, not possibilities?
Considering the number of kids who play with toy guns, how many accidentally mistake real guns for toy guns and shoot each other?
Considering how many kids watch wrestling, how many mistakenly kill each other with wrestling moves?
For children ages 5-14, all kinds of unintentional injury combined only account for about 4% of deaths.
As adults, it’s far, far more likely we’ll kill ourselves driving to work or walking in our bathroom, than be shot.
And, when we die, it’s far, far more likely from a heart decease or from cancer, than from misadventure.

No one gets out of her alive, you know. Eighty years, give or take, and we’re gone. How do we want to spend those 80 years? What do we not want to be able to do?

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Include a Mediation Clause in your Prenuptial Agreement-May 5, 2014

I’ve never represented a client in a contested divorce, where the parties had previously entered into a prenuptial agreement, where there was not as much litigation concerning the prenuptial agreement, as everything else.
Therefore, when I draft a prenuptial agreement for a client, I always recommend including a mediation clause. I include in this clause that if the parties disagree as to any of the provisions of their prenuptial agreement, including that their prenuptial agreement is even valid, they must first attempt in good faith mediation, before they can litigate.

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Criminal Threatening-March 30, 2014

Several months ago, the New Hampshire Supreme Court reviewed and reversed a decision out of Manchester Family Division granting a RSA 173-B domestic violence abuse protection restraining order to a former spouse whose former husband texted her “Whatever. Wish you die in a fiery crash.”

The lower court found this sufficient to issue a final restraining order, considering the text criminal threatening, because, as an auto mechanic, he had worked on her car and knew where she lived.

The Supreme Court did not agree, holding that she had not proved that he sent the text with the purpose of terrorizing her. Nor did he ever threaten to tinker with her car or start a fire.

The text, although ill advised, was mere transitory anger, not a threat to commit a crime.

I’ve tried a lot of these cases, representing both plaintiffs and defendants, in Massachusetts and New Hampshire. In Massachusetts, they are called 209A.

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Mediating High Conflict Divorces-February 22, 2014

Here’s a link to an article I wrote several years ago for the NH Bar Journal on using Aikido principles to resolve high conflict family law matters involving divorce and custody.
 
Click Here for New Hampshire Bar Journal Article

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Photos of my Law Office and Mediation Suite-February 10, 2014

Photos of my Law Office and Mediation Suite in Lyndeborough, New Hampshire, an easy commute from Wilton, Mont Vernon, Greenfield, Francestown, Temple, New Boston, Milford, Nashua, Hollis, Manchester, Amherst, Peterborough.

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Internal Consumption of Alcohol-February 6, 2014

With the legal age to drink still 21 in New Hampshire, minor high school and college students are being arrested and charged with “Unlawful Possession and Intoxication” pursuant to RSA 179:10. However, the State does not have to prove both unlawful possession and intoxication, just one. Also, the alcohol can be inside the student’s body, called “internal consumption.”
For this same offense, the State can also bring additional charges against the student pursuant to RSA 263:56-b and seek license suspension for “abuse of alcohol” even if the student wasn’t anywhere near an automobile.
Still more, some school student handbooks make internal possession an ethics violation and impose fines.

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