If you're divorcing or splitting up with your child's other parent, you'll have to deal with a number of custody issues, including how much time each of you will have with your child and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how New Hampshire law deals with these issues.
There are two basic types child custody: legal custody and physical custody. But New Hampshire law now uses the overall term "parental rights and responsibilities" instead of custody, along with the terms "decision-making responsibility" (essentially the same as legal custody) and "residential responsibility" (essentially the same as physical custody).
Although the names are different, the concepts are similar. So we'll use these terms interchangeably.
Legal custody concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing. When New Hampshire parents have joint legal custody, they both must consent to these major decisions.. However, the parents may agree—or the judge may order—that some categories of decisions be split between the parents. So, for instance, one parent may decide about the child's education, while the other decides about medical care.
When a parent has sole legal custody, that parent is free to make these decisions unilaterally, without getting the other parent's consent.
Joint legal custody is by far the preferred outcome in custody cases, because it enhances the active participation of both parents in the child's life. In fact, New Hampshire law presumes that joint decision-making responsibility is in children's best interests, whether both parents agree to it or the judge decides that it's appropriate after either parent has requested it. (N.H. Rev. Stat. §§ 461-A:5(I and II) (2023).)
However, when there's been domestic violence in the household, New Hampshire judges must:
(N.H. Rev. Stat. §§ 461-A:1, 461-A:5 (2023).)
Physical custody, or residential responsibility in New Hampshire, refers to where a child lives. It also involves parents' responsibility for the routine daily care and control of their children, such as bathing, disciplining, or preparing meals.
When a parent has sole physical custody, the child lives with that parent (typically known as the "custodial parent"), while the other parent ("noncustodial") will usually have "parenting time" (previously called "visitation"). We'll talk more about parenting time below.
With joint physical custody, the child stays overnight with each parent for periods of time during the year. It doesn't necessarily mean each parent has an equal amount of time with the child. Still, neither parent will be identified as the "primary residential parent" in the parenting plan (more on that below).
Any number of variations are possible for sharing residential responsibility. For example, a child might spend two weeknights and every weekend with one parent, and the remaining time with the other. The bottom line is that a joint physical custody arrangement should be acceptable to both parents and serve the child's best interests.
As a practical matter, joint residential responsibility works best when the parents live close to each other. This tends to reduce problems, especially transportation issues that can arise when a child participates in sports or other after-school activities.
In New Hampshire, parents are expected to provide the court with a "parenting plan." If they can't agree on a plan, the judge will come up with one for them. Each parenting plan must include a detailed schedule that lays out exactly when each parent will have residential responsibility or nonresidential parenting time (traditionally known as visitation).
New Hampshire law lists some of the other provisions that may be included in parenting plans:
(N.H. Rev. Stat. § 461-A:4 (2023).)
Ordinarily, the more detailed the parenting plan the better. This tends to reduce the possibility of confusion or, in some cases, disputes over the original intent of some of the plan's provisions.
If the parents can't reach an agreement on custody or parenting time, a judge will have to decide for them, based on what's in the child's best interests. When making that decision, the judge must consider all of the relevant circumstances, including:
Judges may also give "substantial weight" to the child's custody preferences in New Hampshire, as long as the child is mature enough to made a sound judgment on the issue. (N.H. Rev. Stat. §§ 461-A:2, 461-A:6 (2023).)
No. New Hampshire law specifically states that when judges are making custody decisions, they may not prefer one parent over another because of the parent's or child's gender, or because of either parent's financial resources. (N.H. Rev. Stat. § 461-A:6(III) (2023).)
As discussed above, it's public policy in New Hampshire to encourage frequent and continuing contact between children and their parents after divorce. So when the parents don't have joint physical custody, their parenting plan should provide as much parenting time for the noncustodial parent as is appropriate and practical under the circumstances.
A typical parenting schedule might give the noncustodial parent time with the child for one evening on school days and overnight on alternate weekends, with additional time for holidays, summer vacations, and other school breaks. But there are any number of variations, and the most appropriate schedule will depend on the family's circumstances.
Judges may deny or limit a parent's right to visit with a child when it would be detrimental to the child's welfare or could cause harm to the other parent (for instance, when there's been domestic violence).
When a parent has been guilty of sexual assault or sexual child abuse, the judge may prohibit any contact between that parent and the abuse victim, as well as with the victim's siblings or step-siblings. (N.H. Rev. Stat. § 461-A:6 (IV) (2023).)
For example, in any case when it's necessary to protect the child, a judge may also order that parenting time be "supervised." Often, supervised parenting time will take place at a court-approved facility including, if necessary, one that specifically uses a metal detection device and has trained security personnel on-site. (N.H. Rev. Stat. § 461-A:4(V) (2023).)
Normally children aren't allow to refuse to spend time with a parent until they're legally adults (in New Hampshire, that's when they reach age 18 or are otherwise emancipated). Until then it's the custodial parent's responsibility to see to it that the child obeys the visitation orders.
Of course, that's sometimes easier said than done, especially with older teenagers. If the parents can't work it out through discussions with the reluctant child or by getting outside help (such as a child psychologist), they might have to go back to court to request a modification of the existing visitation schedule.
The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to the existing custody arrangement. But you shouldn't simply change the parenting schedule on your own. Instead, you must file a motion (written legal request) with the court, seeking a modification. You and the other parent may agree on a change, but you'll need to submit your written agreement for a judge's approval.
When the parents don't agree on a change, a judge may modify an order on parental rights and responsibilities if:
(N.H. Rev. Stat. § 461-A:11 (2023).)
A parent's move might qualify as a change of circumstances warranting a modification of residential responsibility or parenting time. As with all custody matters, the judge's primary consideration will be what's in the child's best interests.
New Hampshire law lays out rules governing relocations of a residence where the child lives at least 150 days in the year, unless the new residence would be closer to the other parent's home or to any place in the child's current school district. In these situations, the following requirements apply:
(N.H. Rev. Stat. § 461-A:12(VI) (2023).).
When a judge is deciding whether a parent has a legitimate purpose for a move, mere convenience doesn't necessarily fit the bill. In one New Hampshire case, for example, a mother wanted to move to Rhode Island to get away from the child's father, but there was no evidence that the father was in any way a threat or would cause her to fear for her safety. The judge also found that the planned move wouldn't provide the mother with any economic benefit or increased emotional support. In light of that, the judge denied her relocation request, and the appeals court upheld that decision. (In the Matter of Martin, 8 A.3d 60 (N.H. 2010).)
If a parent isn't complying with the existing custody or parenting time order, there may be no alternative but to go back to court. This is done by filing a motion to enforce the existing order. These motions often include requests for the judge to:
If the custodial parent has been withholding parenting time, the other parent may ask the judge to order additional parenting time with the child to compensate for the time lost. You should know that custodial parents aren't allowed to withhold parenting time even if the other parent isn't keeping up with child support payments. On the flip side, a noncustodial parent may not withhold child support because parenting time is being denied.
If you run into a situation where the noncustodial parent is refusing to return the child, the court has emergency procedures to assist you.
Something else to keep in mind is that interference with custody is a violation of New Hampshire's criminal code. (N.H. Rev. Stat. § 633:4 (2023).) This can result in fines and jail time.
Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with New Hampshire's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.
It's always best if you and the other parent can resolve your disagreements without heading to court, either on your own or with custody mediation. In fact, in court proceedings involving custody or parenting time, the court may order the parents to participate in mediation. (N.H. Rev. Stat. § 461-A:7 (2023).)
But if mediation doesn't work or isn't appropriate (such as in cases of domestic violence), you should consider speaking with a knowledgeable family law attorney who can explain your rights and responsibilities, as well as the best way to move forward. And most certainly speak with an attorney if a custody emergency arises.