Can Children Express Preference in New Hampshire Custody Proceedings?

Basics of Parental Rights and Responsibilities (Custody) in New Hampshire

In New Hampshire, legislators have replaced the word "custody" with "parental rights and responsibilities." This less contentious term is more in tune with how courts want separated or divorcing couples to view the issue of what happens with their children. (For purposes of this article, we'll use both terms interchangeably.)

Although child custody laws can vary from state to state, there's one element that's universal—a court's decision must be centered on the child's best interest.

Parents can (and almost always do) reach child-related agreements on their own. But judges aren't obligated to honor those agreements if they feel they don't serve the child's best interest. Of course, if parents aren't able to agree, the court will make the decision for them.

There isn't some magic formula judges use to make determinations on parental rights and responsibilities. That's because no two cases are exactly alike. What New Hampshire law does provide, however, is a list of factors for judges to consider when evaluating a particular case. Some of these factors are:

• the child's relationship with each parent, and the parent's ability to provide nurture, love, affection and guidance
• each parent's ability to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment
• the child's present and future developmental needs, and each parent's ability to meet those needs
• the quality of the child's adjustment to school and community, and the potential effect of any change
• each parent's ability and 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 with each other, and make joint decisions concerning the children
• any evidence of abuse and its impact on the child and on the relationship between the child and the abusing parent
• either parent's incarceration, including the reason for, and length of, incarceration, and
• any other factors the court deems pertinent. (RSA Title XIII: Chapter 461-A §461-A:6 I.)

New Hampshire courts strive to give both parents as much contact as possible with their child, while still ensuring the child is in a stable and safe environment. Parents who have committed domestic or sexual abuse may be prohibited from contacting the child. (RSA Title XIII: Chapter 461-A §461-A:6 IV.)

Also, in determining parental rights and responsibilities (including living arrangements for the child), the court isn't permitted to show a preference for one parent over the other because of the sex of the child, the sex of a parent, or a parent's financial resources. (RSA Title XIII: Chapter 461-A §461-A:6 III.)

Can a Child Pick a Parent to Live With in New Hampshire?

The short answer to that question is no. But a court can take into consideration a child's preference in custody in New Hampshire, depending on the circumstances. Under the law, if the court finds by clear and convincing evidence that a minor child is mature enough to make a sound judgment, the court may give substantial weight to the child's preference. (RSA Title XIII: Chapter 461-A §461-A:6 II.)

There are two important things to note in the preceding paragraph. First, the court has to have "clear and convincing" evidence of the child's maturity. That requirement means a judge can't be on the fence about whether to consider the child's preference.

The judge must have some degree of confidence that the child is mature enough to weigh in. The second thing to keep in mind is that the law says the court "may" give substantial weight to the child's wishes. In other words, the judge isn't obligated to do it.

One factor that could impact a judge's decision on how much, if any, weight to give to a child's wishes is whether there's been improper influence on the child. "If you say you want to live with me, I'll buy you a wide-screen TV for your room." That kind of blatant attempt to sway a child will fall flat. It flies in the face of everything courts are trying to avoid in custody cases.

The law doesn't specify an age at which the court must take into consideration a child's preference. That's because age doesn't determine maturity level. So it's conceivable that a judge might take into account the wishes of a young, mature child, but not those of an older, less responsible one.

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 line with his best interests.

Children don't have an automatic right to intervene in a custody matter. In one New Hampshire case, a 13 and 15 year-old jointly filed a motion (legal request) to intervene in their parents' divorce. The children wanted to live with their father, but their guardian ad litem didn't feel it was in their best interests. (A guardian ad litem is a board-certified individual—often a lawyer or social worker—appointed by the court to represent the children.) Ultimately, the court refused the children's request, and awarded the mother custody. The court agreed that what the children wanted wasn't in their best interest.

Will My Child Have to Testify in Open Court?

In order to bring a child into court as a witness or to attend a hearing, there must be prior approval by a judge. And the parent who wishes to have the child present must prove to the judge that there's good cause for the request. (N.H. Circuit Court Rules - §2.8.)

Judges prefer not to have children appear in court. In fact, they try to keep children as far removed from custody proceedings as possible. A custody battle can overwhelm and stress children who feel torn between their feuding parents. That's one reason why courts may appoint a guardian ad litem, so that this individual can determine a child's wishes and concerns, and relate that information to the court on the child's behalf.

If a judge believes it's important to hear directly from a child, the judge often will interview the child in chambers (the judge's office). This procedure is geared to alleviating a child's anxiety about being in an intimidating environment like a courtroom. The judge will normally exclude parents from the interview, so there's less pressure on the child.

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.