STATE OF NEW HAMPSHIRE
DOCKET # _________
IN RE: _________________________________
MOTION FOR APPOINTMENT OF COUNSEL
PROTECT FUNDAMENTAL RIGHTS OF NON-CUSTODIAL PARENT
NOW COMES ______________________________, non-custodial parent of
above-named child, and respectfully moves this honorable Court to
APPOINT an attorney to protect my fundamental rights with respect to my
child. In support of said MOTION, Petitioner respectfully states
169-C:10, II states, with respect to appointing a parent for a
In any case of neglect or abuse
pursuant to this chapter, the
court shall appoint an attorney to represent an indigent parent alleged
to have neglected or abused his or her child. In addition, the court
may appoint an attorney to represent an indigent parent not alleged to
have neglected or abused his or her child if the parent is a household
member and such independent legal representation is necessary to
protect the parent's interests. The
court shall not appoint an attorney
to represent any other persons involved in a case brought under this
2. Proceedings under RSA 169-C affect critically important
rights I have as a parent, and to the extent it denies me the
opportunity to consult with an attorney to protect those rights, the
statute may be unconstitutional. See In
Re: Shelby R., 148 N.H. 237 (2002).
3. Among my rights affected by this proceeding are:
A. If this
court awards custody of my child to DCYF as a result of the abuse or
neglect of the custodial parent, my rights to petition in the Superior
Court for custody of my child against the custodial parent are
vacated. See RSA
169-C:4, III. In a proceeding under RSA
458:17, a change of custody is permitted upon a showing by clear
and convincing evidence that "the child's present environment is
detrimental to the child's physical,
mental, or emotional health and that the advantage to the child of
modifying a permanent custody order outweighs the harm likely to be
caused by the change in environment". There is no requirement for
a showing that I am fit. RSA 458:17, V(a)(3). Fitness under RSA
458:17 is presumed. Just the possibility that I will lose my
to petition against the mother for custody as a result of an allegation
of abuse or neglect is sufficient to trigger my rights to
B. This Court
has the broad discretion under the Child Protection Act to
make ORDERS restricting visitation and/or
custody, it can order EITHER parent to participate in a variety of
programs or intrusive psychological testing, counseling, parenting
classes, or supervised visitation. RSA
169-C:19,. Any or all of those possible orders place
conditions on my fundamental rights to custody of my child(ren) without
any showing that I am unfit. The United States Supreme Court, in
the case of Troxel
v. Granville, 530 U.S. 57 (2000) stated ""The
liberty interest at issue in this
case - the
interest of parents in the care, custody, and control of their
children-is perhaps the oldest of the fundamental liberty interests
recognized by this Court." It is likely impossible for this
Court to make ORDERS that do not restrict my rights. The mere
possibility that this may happen is sufficient to trigger my
constitutional right to counsel.
169-C:27 states that I can be held financially responsible for
costs associated services provided to the offending parent to correct
conditions leading to the abuse or neglect petition. It may be
unconstitutional to hold me financially responsible to pay
for services for services for the other parent to correct conditions
leading to the neglect petition. I am requesting an attorney to
protect my financial rights.
169-C:19-e states that I am given the opportunity to petition this
court for a "fit parent" hearing to determine my rights to the custody
of my child. There is no definition of "fit parent" in any part
of New Hampshire law. I cannot possibly protect my rights under
this statute in the absence of a definition of "fit parent" because
there is no way I can know what it is that I must prove to prevail in
that hearing. I need an attorney to assist me in protecting my rights.
As a result of a Petition
for Neglect (or Abuse) being filed against the
custodial parent, my parental rights are subject to termination.
The mere possiblity of this drastic denial of my fundamental rights is
sufficient to trigger my constitutional right to counsel.
4. I am unable to afford an attorney without this court's
assistance. I will complete the financial affidavit used for
these types of cases once it is given to me by this Court.
WHEREFORE, Petitioner respectfully requests the following relief:
A. That this Court appoint an attorney to represent
me in this matter.
B. For other and such relief as may be just.
Signature of Parent
Fill out ONLY ONE BOX:
_____ I hereby certify that a copy of the foregoing MOTION
has been sent this date to the DCYF attorney, at
________ I have not been provided with the name or address of the
attorney. Please forward a copy of this motion to him or her.
Signature of Parent
Directons to Parent: (1) Print out this form, (2) complete it,
and (3) give it to the court clerk. If there is no hearing
scheduled at any time soon, mail or deliver it to the court.
you have a hearing TODAY, it is OK to take it with you. DO NOT
DELAY in asking for legal counsel.
Form designed by Paula J. Werme, Esq., 83 N. Main St., Boscawen,
753 - 9384.
No informaton contained in this generic form is intended to be
construed as legal advice or a statement of the constitutionality of
any law. It is entirely informational.
Completing this form does not create any sort of attorney-client
relationship with the author of this form, and does not obligate the
court to appoint any particular attorney on behalf of the
parent. If the Court receiving this form wishes to appoint
Paula J. Werme to represent the parent who completed the form, please
contact her at the above number.
More information can be found about the rights of fit parents at http://werme.8m.net/nhdcyf/fit_parents.html.