New Hampshire Custody FAQ's

1. What is meant by "custody" of the child?
There are two types of custody in New Hampshire--legal and physical.

Legal custody refers to the right to make all of the important decisions affecting the child's welfare such as where the child will attend school, decisions about medical treatment and whether the child will have any religious upbringing. There is a statutorily created presumption in favor of joint legal custody. If the Court declines to order joint legal custody it must state the reasons for such denial in its Order.

Physical custody is where the child will primarily reside. It is possible to have a shared or split physical custody arrangement. In cases where one parent is the prime physical custodian, however, the non-custodial parent will usually be entitled to rights of visitation with the child.

2. What is the standard for determining custody and visitation rights of the non-custodial parent?
Custody is based upon what is in the best interests of the child. The Court is afforded broad discretion in making a physical custody order which will not be disturbed unless it is shown that it abused its discretion in making the order.

Given that the standard for an award of custody is what is in the best interests of the child, all relevant circumstances are considered by the Court in rendering a decision.

3. Do the children have representation in a custody dispute?
Yes. The Court may either upon its own motion or the motion of any party appoint a Guardian Ad Litem to represent the interests of the child and to make recommendations as to custody or any matter affecting the welfare of the child. The Guardian becomes a party to the action and may participate fully in the proceedings. The Guardian will conduct an investigation into all areas the Court requests it to and will usually issue a written report with his or her recommendations.

4. Can a custody order be modified?
A custody order may be modified by agreement of the Parties and Court approval of that agreement. To modify custody without agreement the party seeking modification must show that there is a "strong possibility of harm" to the child if custody is not changed.