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Unmarried couple's custody case hits snag
No automatic appeal in fight

By ANNMARIE TIMMINS
Monitor staff

Janet Todd and James Miller met online in 1999 and by 2003 had two girls and the start of what would be
among the most "tortured" custody fights in the Portsmouth family court.

For five years, they have exchanged allegations of sexual abuse and mental delusions, according to court
records. This fall, after finding the two incapable of co-parenting, a marital master awarded Todd, of
Hampton, primary custody and Miller "liberal" visitation. Surprising no one, Miller, who lives in New York
and wants the girls, ages 6 and 7, there, appealed to the state Supreme Court.

And there, Miller was surprised.

Because Miller, 51, and Todd, 43, never married, neither has the automatic right to an appeal. Miller is
entitled only to a "discretionary appeal," meaning that he and his lawyer, Joshua Gordon of Concord, must
persuade the court to hear their case.

The court declined to do that late last month.

Now, Gordon is asking the court to reconsider, partly on the grounds of discrimination. "Treating the
relationship between children and unmarried parents differently than the relationship between children of
married parents is unlawful and unconstitutional," Gordon wrote the court. Gordon cited a 2007 federal
report that showed Miller and his girls are not alone: More than 31 percent of New Hampshire children
were born to unmarried parents, the report said. Todd's two lawyers, Elizabeth Olcott of Concord and John
Carr of Boston, have until Thursday to object. Carr said they will.

"This has nothing to do with discrimination," Carr said. "It has to do with the attorney for the father looking
for a second bite of the apple." The New Hampshire Supreme Court greatly expanded the opportunity for
appellate review in January 2004, when it announced it would take all direct appeals from the state courts.
For the 25 years prior, the justices had been screening each case and deciding whether it merited the
high court's review. In 2002, for example, the court received 813 appeals but agreed to hear only 316, or
39 percent, of them, according to the court's media office.

Two years ago, the state Supreme Court amended the appeal process again, this time by reducing the
number of domestic cases it would promise to consider. The court cited limited resources and a
burgeoning family law caseload - too many cases involved ongoing disputes in divorces that justices had
already decided.

Doreen Connor, a lawyer with Wiggin and Nourie in Manchester who's studied this issue, said the justices
also disliked second-guessing lower courts on fact-based decisions such as visitation schedules and child
support payments.

Under the new rule, the court will guarantee an appeal only on matters decided in the original divorce
decree or legal separation. The court no longer will automatically hear repeat issues from a single divorce.
Now, it's the court's discretion whether to hear family issues that come up after the divorce or outside a
divorce.

That includes the request of a divorced father who loses his job and can't get his child support adjusted.
And the appeal from divorced parents who seek an amendment to their visitation schedule.
And unmarried parents like Miller, dissatisfied with the court's custody decision.

As hoped, the new rule greatly reduced the number of family law appeals taken up by the court.
Connor found that in 2007, the year before the rule took effect, 47 percent of the court's 103 family court
appeals would have fallen into the discretionary category. In 2008, the new rule's first year, the court
received 112 family law appeals, 54 of which were discretionary.

Of those 54 discretionary appeals, Connor reported, the court declined to take 27. Connor agrees with
Gordon's interpretation of the Miller situation. Had Miller and Todd been married, Miller's appeal of the
custody plan would have been guaranteed consideration by the justices. The court ultimately may not
have made Miller any happier with its decision, she said, but he would have been heard.

"I think it's too restrictive," she said of the new rule. "If you are in a multiple-car accident, every time you
have a trial you have the right of automatic appeal. Family law involves rights that are dearer and nearer
the heart than what you were compensated for the car accident."

Gordon doesn't disagree wholly with the notion of discretionary appeals for some family law matters.
"These cases can go on forever," he said. "Every time one (of the parents) loses, they appeal. And there
are parties that file appeals every year. It's understandable that the Supreme Court does not want to take
it up again and again." Gordon would like the court to give exception to parties like Miller, who had not
appealed his case previously. That would allow the court discretion while giving unmarried parents the
same appeal rights married parents have.

Miller, reached in New York last week, called the court's policy "outrageous."
In family court, he said, "it's all about what's right for the children," he said. "But the Supreme Court has
made it all about the marital status. It's just not right."

Should Gordon persuade the court to take up Miller's appeal, he will argue that the girls' mother abused
Miller by repeatedly accusing him of sexually assaulting at least one of the girls. The police in three states
and state officials have cleared Miller of these allegations, according to court papers.
Gordon believes the allegations at times alienated Millers' children against him and that the lower court
unfairly considered the allegations and alienation when deciding custody.