Questions & Answers
Marriage & Civil Unions
Can same-sex couples marry in New Hampshire?
No. In 1987 New Hampshire amended its laws on prohibited marriages to make clear that a man is forbidden from marrying a man and a woman is forbidden from marrying a woman.40 In April 2004, New Hampshire further amended its marriage laws to prevent recognition of any out-of-state same-sex marriages.41
Can New Hampshire same-sex couples get married anywhere?
Yes. In May of 2004, as a result of a landmark victory by GLAD, Massachusetts became the first state to allow same-sex couples to legally marry. Although Massachusetts does not have a residency requirement for marriage, the former Massachusetts Governor revived an old 1913 law to prevent most out-of-state same-sex couples from marrying unless they indicated an intent to reside in Massachusetts, including same-sex couples from New Hampshire.
However, on July 31, 2008 Governor Patrick signed into law a bill that repealed this so-called “1913 law,” and effective immediately on that date same-sex couples from anywhere in the country or world can legally marry in Massachusetts without having an intent to reside in Massachusetts.
Is there anywhere else that we can get married?
Yes, currently both California and Canada allow same-sex couples to marry. For information about California see the publication, How to Marry in California at http://www.nclrights.org/site/DocServer/How_to_Marry_in_California_6.17.08.web.pdf?docID=3301. For information about Canada see GLAD’s publication, What Do I Need to Know About Getting Married in Canada?
In addition, the Netherlands, Belgium, Spain, South Africa and Norway allow same-sex couples to marry, but for the most part each of these countries has requirements that make it difficult for non-citizens to marry.
Can same-sex couples obtain any legal recognition of their relationships in New Hampshire?
Yes. New Hampshire has joined Vermont, Connecticut and New Jersey as the fourth state to allow same-sex couples to enter into a civil union, which is a legal status parallel to civil marriage at the state law level. Without any court order or even the existence of a marriage lawsuit, the state legislature passed a law, “An Act Permitting Same Gender Couples to Enter Civil Unions and Have the Same Rights, Responsibilities, and Obligations as Married Couples,” that was signed by the Governor on May 31, 2007 and took effect January 1, 2008 (See the House Bill: HB437-FN-LOCAL).
Civil Unions provide all the benefits, protections and responsibilities that are granted to a spouse under state law. Additionally, any same-sex couples who marry in Massachusetts, California or another country will have their marriage recognized as a civil union in New Hampshire.
GLAD has prepared a publication New Hampshire Civil Unions that has detailed information about the following questions:
- What is a civil union?
- When will New Hampshire civil unions be available?
- What is the difference between marriage and civil unions?
- Who can get a New Hampshire civil union?
- How do we get a New Hampshire civil union?
- What are some of the legal issues if we are already married or want to get married?
- What are some things we should consider before entering into a New Hampshire civil union?
- What protections do we gain from a New Hampshire civil union?
- Are there any limitations to a New Hampshire civil union?
- How will a New Hampshire civil union affect my children?
- Will I be able to get health insurance through my employer for my New Hampshire civil union spouse?
- Can a New Hampshire civil union couple file a joint tax return?
- How do I get out of a New Hampshire civil union?
- What legal protections can same-sex couples in New Hampshire acquire without entering into a New Hampshire civil union?
Legal Protections for Same-Sex Couples
What steps can a couple take to safeguard their legal relationship in New Hampshire?
- Relationship Agreement or Contract: Agreements regarding property and finances should be respected and honored according to ordinary rules of contract law, but it is important to note that the New Hampshire Supreme Court has not yet ruled on the subject. A number of other states have found such agreements enforceable, including Massachusetts.42
- Durable Power of Attorney: Any competent person may appoint another person as his or her “attorney-in-fact” for financial and/or matters in the event the one becomes incapacitated or disabled.43 If no such appointment is made, then a “family” member will be empowered to make decisions for the disabled or incapacitated individual. A power of attorney must be signed and notarized.
- Durable Power of Attorney for Health Care: Since medical care providers look to next-of-kin to make health care decisions for an incapacitated individual, an unmarried person must create a durable power of attorney for health care if they wish a person other than immediate family to make those medical decisions. Under state law44, a person may appoint a health care “agent” to make those decisions for him or her upon incompetence, i.e., when the person no longer able to do so.45 People should give a copy of the durable power of attorney for health care to their doctors and should also consider giving it to family members.
- Within this document, a person can also deal with end of life issues. New Hampshire law permits a person to make advance decisions about artificial nutrition and hydration as well as life sustaining treatments without which the person would die.46
- The durable power of attorney for health care must be signed by the person giving the power of attorney and two witnesses (not including the agent, the person’s spouse or heir, a beneficiary under the person’s will or trust, or more than 1 employee of the person’s health care provider).47 It cannot be revoked except by the person who gave the power of attorney.48 If a guardian is later appointed for a person, the Court presumes the power of attorney for health care remains in the best interests of the person who gave it unless there is clear and convincing evidence to the contrary.49
- Alternatively, a person can write a “terminal care document” that addresses these subjects.50 The document should also be made part of a person’s medical record. It can be revoked if destroyed, orally renounced before two disinterested witnesses, or in writing.51
- Will: Without a will, a deceased unmarried person’s property passes to: (1) his or her children; (2) his or her family; (3) if next-of-kin cannot be located, to the state. If the person wishes to provide for others, such as his or her partner, a will is essential. Even if a person has few possessions, he or she can name in the will who will administer his or her estate. If a person has children, he or she can nominate the future guardian of the child in a will.
- Funeral Planning Documents: Upon death, a person’s body is given to his or her next-of-kin. This can mean that a person’s own partner has no right to remove the body or make plans for a final resting place. To avoid confusion and persuade relatives to honor the deceased’s wishes, a person can leave explicit written directions giving another person (such as their partner or a friend) control over the funeral and burial arrangements. While this document does not have to be respected, it should help avoid complications in any but the most adversarial families. Some people include these instructions as part of a will, but since a will may not be found for days after death, it is preferable to give the instructions to the person you want to take care of matters as well as to family members.
- Guardianship: New Hampshire’s broad guardianship laws allow, among other things, an individual to nominate another person as the guardian of their person, estate, or both.52 The advantage of nominating a guardian in advance is that you are selecting the person to take over all aspects of your financial matters.
Does a person need an attorney to get these documents?
GLAD recommends working with an attorney on these documents. Although some forms are available, the form may not be suited to your individual needs and wishes. Moreover, attorneys may be able to help effectuate your goals, for example, by drafting a will in a way which is more likely to deter a will contest by unhappy family members, or drafting a health care proxy with specific instructions from you about health care.
If a couple separates, what is the legal status of these documents?
Upon separation, the terms of a Relationship or Partnership Agreement/Contract will come into play if the couple has one. Absent an agreement, couples can get involved in costly and protracted litigation about property and financial matters but without the divorce system to help them sort through it.
If a person changes his or her mind about who should be his or her attorney-in-fact under a durable power of attorney; or health care agent; or beneficiary or executor under a will; or funeral planner, then those documents should be revoked—with notice to anyone who was given copies of those documents. New documents should be prepared which reflect the person’s present wishes.
Domestic Partnership
What is domestic partnership?
Although it is a term used in many contexts, it most often means a status which recognizes an unmarried couple and their children as a family for certain limited purposes. In the workplace context, domestic partnership plans allow an employee to obtain certain fringe benefits for his or her partner which were previously limited to married spouses. Some states, cities and towns have also enacted domestic partner laws. In other contexts, “domestic partner” is also a shorthand term for family, replacing “lover,” “friend,” and “roommate.” Some people call cohabitation agreements “domestic partner agreements.” For more information, See GLAD publications on domestic partnership for further information.
Does New Hampshire provide domestic partner benefits to state employees?
In May 2006, the Merrimack County Superior Court ruled in Bedford and Breen v. New Hampshire Technical College System, a case filed by GLAD, that the denial of insurance and leave benefits to the families of two New Hampshire state employees constituted both disparate treatment and disparate impact violations of the New Hampshire law against sexual orientation discrimination in employment. Although the State of New Hampshire appealed this case to the New Hampshire Supreme Court, the State dropped its appeal in May 2007, in light of the passage of the civil union law, which requires that civil union spouses of state workers be provided access to health benefits, and the collective bargaining decision to extend benefits to the partners of state workers.
Can cities and towns in New Hampshire provide domestic partner health insurance benefits to their own employees?
Yes, and some do. Also, like state workers, municipal employees who are in a civil union can obtain health benefits for their civil union spouse.
What kinds of domestic partner benefits may private employers provide?
Private employers can provide to domestic partners any benefits they wish—whether health insurance, family medical or bereavement leave, equal pension benefits, relocation expenses, or access to company facilities.
Even when employers provide these benefits, though, sometimes federal laws require different tax or other treatment of the benefits for domestic partners as compared to spouses. For example, an employee must pay income tax on the value of his or her partner’s health insurance benefits, but a spouse does not.53 And for pensions, a domestic partner has the no right to sign off if their partner decides to name someone other than them as the beneficiary of a pension although a spouse would have that right. In addition, an employee can change his or her beneficiary designation without the domestic partner’s consent or knowledge.
Adoption
Can a single gay individual adopt a child in New Hampshire?
Yes. Although New Hampshire had a ban on gay people adopting or foster parenting children for many years, those laws were repealed in 1998.54
Can same-sex partners together adopt a child in New Hampshire?
The question of joint or second parent adoption by a same-sex couple is not addressed expressly by the New Hampshire statutes on adoption or by any authoritative ruling by the state supreme court, though the New Hampshire Supreme Court rejected a petition to jointly adopt by a divorced heterosexual couple in 1987.55 Second parent adoptions have been granted at the lower court level in Belknap, Carroll, Coos, Rockingham, Strafford and Sullivan Counties, but have generally been denied in Cheshire, Grafton, Hillsborough, and Merrimack Counties.56 If you have been denied a second parent adoption by a New Hampshire court, please contact GLAD.
For couples who have a civil union, New Hampshire law allows step-parent adoptions, and this should apply equally to civil union spouses. For more information see GLAD’s publication, New Hampshire Civil Unions.
Do we need to do a second-parent adoption if we have a civil union?
A child born to a couple with a civil union is presumed to be the child of both members of the couple. While that is good news, it is still extremely important to adopt because another state might not respect the presumption if the couple moves. Adoption is a court judgment creating a parent-child relationship and is very likely to be respected by other states, even if these states are otherwise hostile to same-sex couples or parenting.
Miller-Jenkins Sidebar
Relying on a partner’s good will, or even on the fact that a child was born into a civil union, is not the best way to ensure ongoing parental rights of both parents if a couple later separates. A case in point is Miller-Jenkins v. Miller-Jenkins, 912 A.2d 951 (Vt.,2006), cert. denied, 127 S.Ct. 2130 (2007); Miller-Jenkins v. Miller-Jenkins, 49 Va.App. 88 (2006), cert. denied 128 S.Ct. 1127 (2008). This case has been in litigation since 2004, has involved two state Supreme Courts (Vermont and Virginia), and has already made two trips to the U.S. Supreme Court. Proceedings are ongoing.
In that case, Janet and Lisa had a child while they were in a civil union. Janet did not adopt. After the couple separated, Lisa moved to Virginia and used both the lack of an adoption, and Virginia’s laws hostile to same-sex relationships to thwart Janet’s contact with their daughter. While Virginia is currently deferring to Vermont, legal maneuvering threatens to reopen the issues. For more information, see the GLAD website on Miller-Jenkins. GLAD and local counsel represent Janet in the Vermont proceedings.
If same-sex parents raise a child together, but only one is the “legal” parent (because of birth or adoption), then what rights does the other parent have vis-à-vis the child?
These are tricky cases, but the New Hampshire courts have recognized they have the power to grant visitation rights to a person who is not an immediate family member if it is in the best interests of the child.57 This logic has been applied to allow separating lesbian co-parents to have their visitation disputes heard in court.58
Given recent developments in this area of law at the United States Supreme Court level, a court cannot allow visitation simply because it thinks visitation is in the child’s best interests: the court will need to ascertain whether there are special factors which justify the court overriding a fit parent’s choice to refuse contact.59
Regardless of the status of a person’s legal rights, it is critical to remember that children form strong attachments to their parental caregivers regardless of legal labels. Separating a child from a person who has acted as their parent can be a devastating loss for a child. Moreover, court proceedings to establish de facto parenthood will be painful and costly, so anything people can do outside of court to make decisions together about a child’s interests is strongly encouraged. For more information, See GLAD’s publication: Protecting Families: Standards for Child Custody in Same-Sex Relationships.
Short of joint adoption or second parent adoption, how can a family protect the interests of the child vis-à-vis his or her second parent?
There are a number of steps which can be taken, although none offer the security of a second parent adoption.
- Co-parenting agreement: An agreement setting out the parents’ expectations about each other’s roles, and their plans in the event of separation, disability or death. While these agreements may not be given effect by courts, they are important indicators of what the couple believed was in the best interests of the child, and thus may be influential (although not binding) on a court.
- Note also that New Hampshire has a specific law about surrogacy. It prohibits payment of a fee to surrogates, other than expenses like lost earnings or medical expenses due to pregnancy and attorney’s fees and court costs.60 It also imposes mandatory contract terms on surrogacy agreements, and makes it clear that the surrogate may keep the child in certain specified circumstances.61
- Co-guardianship: This process allows a parent to name the other non-legal parent as a co-guardian so that he or she may secure medical attention and health insurance for the child and in all other ways act with the legal authority of a parent.62 The best interest of the child standard controls appointments of guardians.63 The guardian must annually file a report on the minor’s welfare.64 This status is not permanent, and any person, including the legal parent, may petition to have a guardian removed.65
- Wills: The legal parent may nominate a guardian of the child upon the parent’s death. These wishes are given strong preferences by courts. Of course, if the child has another legal parent living, then that person would have priority over the nominated guardian.
Custody and Visitation
If I have a child from a former heterosexual relationship, and I am now involved with a same-sex partner, can my “ex” use this against me to deny me custody or visitation of my kids?/h4>
The New Hampshire Supreme Court has not yet squarely addressed this issue. States around the country are split on the issue, with a majority deciding the issue based on whether there is evidence of direct harm to the best interests of the child because of the parent’s sexual orientation, and some others assuming harm. As a matter of logic and experience, a parent’s sexual orientation should not in itself be grounds for denying custody or visitation.
One state Supreme Court case addressed the fact of gay parenting in the context of a constitutional challenge to New Hampshire’s now-repealed law forbidding gay people from adopting. The opinion is from an era in which fear of AIDS was rampant, and the opinion did not directly address the issue of how a parent’s sexual orientation would influence a custody contest between two parents. In the case, known as Opinion of the Justices, the court reasoned that the state’s adoption ban was permissible because of the state’s interest in providing for the “health, safety and proper training for children.”66 It reasoned further that parents are the primary role models for children and having a gay parent could influence a child’s sexual identity. 67 But the Court drew a distinction between children in state-approved or state-licensed adoption and foster care programs for whom the State had a special responsibility, and children in already existing families. In the Court’s words, “this opinion is not meant to suggest that the State might have . . . authority to delve into the privacy of existing . . . custodial relationships.” 68
What are the factors for making custody determinations generally?
In a divorce, the court treats the parents as equals and presumes that joint legal custody is in the best interests of the child, except in cases where abuse has occurred.69 The term “legal custody” refers to right and responsibility to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.
“Physical custody” refers to where the child lives, and when it is not divided, then the parent without physical custody has a right to visitation.70 A court may also award visitation or custody to step-parents or grandparents.71
The court’s decisions are based on the best interest of the child standard.72 Courts also consider the reports of experts, the conduct of the parties, its effect on the children, and the preference of the children.73
How is “sexual orientation” used in custody proceedings?
In a divorce or paternity proceeding, a parent may argue that the other parent’s sexual orientation is causing detriment to the child. Any number of reasons can be cited, such as that the gay or lesbian parent’s sexual orientation is causing other people to tease or ostracize the child, or that the parent is a bad role model. Or a parent may argue that the ex’s new partner is not good for the child. In the overwhelming majority of circumstances, these matters can be answered to the satisfaction of a judge in a way which does not penalize the gay parent or the child. Contact GLAD for further resources.
Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?
It can make a difference with respect to future modification of court orders for custody. People can seek to modify permanent court orders for custody in a number of circumstances, including when “the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement...”74 If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, he or she may argue that the circumstances surrounding the child’s welfare have changed and that the custody issues should be litigated anew. Of course, if your spouse or former heterosexual partner knew of your sexual orientation at the time of the court proceedings establishing custody, a modification petition on those grounds would be pointless.
Can a court keep my kids from visiting when my partner is present?
The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults. Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation. But unless the partner is causing harm to the child—a very high standard—visitation should not be restricted.
Domestic Violence
What is domestic violence?
Under the law, “abuse” covers a variety of activities. These generally include:
- attempting to cause, or recklessly or purposely causing bodily injury or serious bodily injury;
- placing another in fear of imminent bodily injury or attempting to do so by physical menace or threats;
- attempting to or engage in involuntarily sexual relations under threat or force;
- in some circumstances, attempting to or committing kidnapping, criminal restraint or false imprisonment;
- attempting to or in fact destroying the property of a person eligible for protection under the domestic violence laws;
- attempting to or in fact entering onto a person’s property when not authorized to do so where that person is eligible for protection under the domestic violence laws;
- repeated communication with the purpose to annoy or alarm another.
The precise contours of the law and the conduct included can be determined by reviewing.75
Do the domestic violence laws apply to people in same-sex relationships?
Not explicitly, but most same-sex relationships are covered. “Abuse” includes the acts defined above if they occur between people who are:
- “family or household members”—including people who live together or formerly did so; and
- “current or former sexual or intimate partners”—which includes people who are presently or were formerly in a romantic relationship, regardless of whether or not the relationship was “sexually consummated.”76
How do I get a court order protecting me from an abusive partner?
You can get a protective order from the District Court in the town where you or the abuser lives, as well as the Superior Court in the county where you or the abuser lives. If you live in Rockingham County or Grafton County, you must go to the Family Division Court. If you have fled your home, you can go the court closest to your temporary home. Note that the Court will keep your address confidential – you need to let them know if you move so they know how to contact you.
To apply for a protective order, ask the clerk of the court for a Domestic Violence Petition. Simply write down what happened to you as clearly and in as much detail as possible. You must include the date, the time and the location of the important facts about the abuse. You will have to swear what you have written is true, so don’t guess about something if you don’t know for sure. Ask for additional pages to write down all of the facts, past and present, of abuse that you can think of.
If you ask for emergency orders, the clerk will take the papers to a judge. If you see the judge, just tell him or her simply and honestly what happened to you and why you are in danger. If the judge finds that you are in danger, he or she may immediately issue temporary protective orders, directing the abuser no to abuse you and not to enter your residence, workplace or school. The court may also issue an emergency order granting you temporary custody of your children and ordering the abuser to turn over to a peace officer any guns or other deadly weapons he or she could use to harm you. You will get a copy of the order from the clerk of court and you should keep it with you at all times.
A copy of the protective order will be sent to the Department of Safety by computer. The State Police must make information regarding the protective order available to your local police and Sheriff. The local police must promptly serve your abuser with a copy of the temporary protective order. There is no charge for this service, and the orders are in effect state-wide in New Hampshire.
What can I do if the courts are closed?
If you are in immediate danger of abuse and no court is open, you may get an emergency protective order by contacting the nearest police department. A police officer can help you fill out the forms and will contact a judge by telephone. Everything said in response to the above question remains true about how the process works. The one difference is that an order issued over the telephone will only be effective until the close of business on the next regular court business day. For the protection order to remain in effect, you must go to the nearest District, Family or Superior Court before the close of the next business day to ask for a new protective order.
What happens after I obtain a temporary order?
A full hearing will be heard on your petition within 30 days of when you file it or within 10 days of the date the petition is served on your abuser, whichever is later. The abuser may also ask for a hearing within 3 to 5 days, which you must attend.
You have the right to bring a lawyer to represent you at the hearing. It is a good idea to see a lawyer if you think custody or child support will be disputed, or if you have been severely injured or expect an injury to last a long time.
Where can I go to get help?
If you cannot afford a lawyer, a domestic violence program in your area may be able to refer you to a lawyer who will do the case for free. The DOVE Project (Domestic Violence Emergency Project) of the New Hampshire Bar Association can provide referrals. Contact them at (866) 644-3574, or www.nhbar.org. Their mailing address is 2 Pillsbury Street, Suite 300, Concord, NH 03301-3502.
Does domestic violence play a role in custody decisions?
Yes. Evidence that a parent has in the past, or is presently, abusing the other parent or the child is a factor showing that a parent should not be presumed to be entitled to joint legal custody, as discussed above.77 As “parental conduct,” it is also a factor that will affect the analysis of what is in the best interests of the child.
Footnotes
40NH RSA 457:1-2
41NH RSA 457:3
42See Wilcox v. Trautz, 427 Mass. 316 (1998)
43NH RSA 506:6
44NH RSA 137-J
45NH RSA 137-J:2, III
46See NH RSA 137-J:3, III
47NH RSA 137-J:5
48NH RSA 137-J:6
49NH RSA 137-J:12
50NH RSA 137-H
51NH RSA 137-H:7
52NH RSA 464-A:10
53See Internal Revenue Code, Private Letter Ruling 9603011 (Jan. 19, 1996)
54NH RSA 170-B:4 (permitting an “unmarried adult” to adopt)
55In Re Jason C., 129 N.H. 762, 533 A.2d 32 (1987). The court read the absence of any procedure for custody determinations within the adoption process to indicate that the legislature did not intend to grant adoptions under these circumstances. The court’s determination also turned on the fact that allowing a divorced couple to adopt jointly would not further the legislature’s intent to limit adoption to applicants who would most likely provide a unified and stable household for the child—an intent that would be fulfilled by a committed same-sex couple seeking to adopt together
56AnnMarie Timmins, Adoption Law Is Up For Interpretation, Concord Monitor, Apr. 10, 2006, at http://www.concordmonitor.com/apps/pbcs.dll/article?AID=/20060410/REPOSITORY/604100308
57Roberts v. Ward, 126 N.H. 388, 392, 492 A.2d 478, 481 (1985)
58See e.g. P.B. v. P.D.R., Merrimack (N.H.) Super. Ct., No. 94-M-615, Order (Sept. 21, 1994)(permitting visitation for non-biological lesbian mother over biological mother’s objection); Comeau v. Grondin, Stafford (N.H.) Super. Ct., No. 94-M-1161, Order on Defendant’s Motion to Dismiss (Apr. 11, 1995) (allowing lesbian co-parent into court to make visitation claim)
59Troxel v. Granville, 120 S.Ct. 2054 (2000)(plurality)
60NH RSA 168-B:25, V
61See NH RSA 168-B:25, I-IV
62See NH RSA 463:10 (allowing appointment of appropriate persons, including “co-guardians may be appointed when in the best interests of the minor”), 12 (rights of guardian)
63NH RSA 463:8
64NH RSA 463:12
65NH RSA 463:14-16
66129 N.H. 290, 296, 530 A.2d 21, 24 (1987)
67129 N.H. at 296-98, 530 A.2d at 25-26
68Id. at 298, 530 A.2d at 27
69NH RSA 458:17, II
70NH Rev. Stat. sec. 458:17, IV
71NH RSA 458:17, VI
72Place v. Place, 129 N.H. 252, 525 A.2d 704 (1987)
73Del Pozzo v. Del Pozzo, 113 N.H. 436, 309 A.2d 151 (1973)
74NH RSA 458:17, V (effective Jan. 1, 2001)
75NH RSA 173-B:1, I
76NH RSA 173-B:1, II
77NH RSA 458:17, II (c)
