Can Children Express Preference in New Hampshire Custody Proceedings?

Find out whether children can make their own custody decisions in New Hampshire.

Even though children can have a voice in their parents’ custody cases, they can’t have the final say. A judge will decide how much consideration to give a child’s preference when it comes to custody. The best interests of the child are central to any custody decision.

A child’s age, maturity and reasoning ability will determine how much weight is given to his or her custody wishes. New Hampshire doesn’t recognize a child’s custody preferences at a certain age. Rather, a judge will consider a child’s maturity level and ability to make a sound judgment in each case.

Although children can have their wishes heard in custody cases, they rarely testify at custody trials. Judges try to shield children from testifying at custody trials except in emergencies. Moreover, legal protections exist to prevent children from being coerced by parents to express a certain custody preference.

This article provides an overview of the impact of a child’s preference on custody proceedings in New Hampshire. If after reading this article you have questions, please contact a local family law attorney for advice.

Child Custody Basics in New Hampshire

Parents can reach custody agreements on their own. Nevertheless, judges will decide custody when parents can’t agree or when their agreement doesn’t serve the best interests of the child.

While judges don’t use a particular formula to decide custody, a judge will evaluate several factors, including:

  • the child’s relationship with each parent
  • each parent’s ability to provide for the physical and emotional needs of the child
  • the child’s developmental needs and each parent’s ability to meet those needs
  • the child’s adjustment to school and community
  • each parent’s willingness to encourage the child to maintain a strong relationship with the other parent
  • the child’s relationship with any other person who may significantly affect the child
  • the parents’ ability to communicate and cooperate
  • any evidence of abuse and its impact on the child, and
  • each parent’s incarceration, if applicable.

Additionally, the court may examine any other factor it deems relevant to the child’s best interests. New Hampshire courts strive to give each parent as much contact as possible with his or her child while still ensuring a stable and safe environment for the child. Parents who have committed domestic or sexual abuse may be prohibited from contacting the child. To learn more about custody decisions in New Hampshire, see Child Custody in New Hampshire: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

Children’s custodial preferences are not all created equal. A child’s parental preference will only be considered if he or she is sufficiently mature and uses sound judgment. Because maturity is a vague term, a judge will look at the maturity and judgment of a child individually in each case. This means that the preferences of a younger, but mature child, may be taken more seriously than the preferences of an older, irresponsible child.

For example, in one New Hampshire case a 13 year-old son’s preference caused a court to change custody from a mother to a father. The child’s wishes were given weight in the case because of his age, intelligence, maturity and his strong desire to live with his father. Furthermore, the court evaluated several factors and decided that the child’s wishes were in accordance his best interests.

Notably, a child doesn’t have an automatic right to intervene and have his or her wishes heard in his every custody case. A judge can, but doesn’t have to place substantial weight on a child’s custody wishes. In one case, a 13 and 15 year-old jointly filed a motion to intervene in their parents’ divorce. The children wanted to live with their father, but the guardian ad litem appointed to represent them did not feel it was in the children’s best interests. Ultimately, the court refused to let the children intervene and the mother was awarded custody against the teens’ wishes. This case shows that a child’s custody desires must be rooted in facts that show how the desired arrangement is in his or her best interests.

Will My Child Have to Testify in Open Court?

New Hampshire may require a parent to appear with his or her child at a custody proceeding. Although a child may need to be present at court, it's unusual for a child to take the witness stand. Typically, judges keep children out of their parents’ custody battles. A custody trial can overwhelm and stress children who feel torn between their feuding parents.

However, a child’s preference can be heard through an adult other than the child’s parents. Frequently, a judge will appoint a trained child professional like a guardian ad litem or social worker to represent a child’s interests. The appointed child professional may meet with the parents and child individually to determine the child’s needs and wants regarding custody. The guardian ad litem or social worker will testify as to the child’s custodial desires and will represent his or her interests to the judge.

Other times, a judge may elect to interview a child personally. This may take place in open court or in the judge’s chambers. Parents are generally not allowed to attend an in chambers interview between the judge and child. Too often, a well-meaning parent may encourage a child to testify in his or her favor. Instead, the parents’ attorneys and a court reporter can attend the in chambers interview. The court reporter will prepare an accurate transcript of the interview to use at any trial on custody in lieu of a child actually testifying at trial.

If you have additional questions about the effects of children’s preferences on custody proceedings in New Hampshire, contact a local family law attorney for advice.

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