New Hampshire Child Custody Laws

Learn how child custody is determined in New Hampshire, how you can modify custody orders, and more

By , Retired Judge

New Hampshire Child Custody in a Nutshell

In a revision to child custody laws, New Hampshire legislators replaced the word "custody" with "parental rights and responsibilities." This less combative term is more in line with how the law is directing separated or divorcing couples to view the issue of what happens with their children.

There's one paramount principle that guides custody cases: the ultimate decision must center on the child's best interest. Parents are usually able to reach child-related agreements without court intervention, if not by themselves then with the aid of their attorneys or a mediator. But the law doesn't obligate judges to honor those agreements if they believe they don't serve the child's best interest. We'll go into more detail on the concept of a child's best interest later in this article.

Types of Custody in New Hampshire

Standard custody terminology that has been around forever no longer exists in New Hampshire. The term "legal custody" has given way to "decision-making responsibility." The name has changed, but it still refers to a parent's role in making the major decisions concerning a child's health, education, and general welfare. (N.H. Rev. Stat. § 461-A:5.)

New Hampshire law presumes that "joint" decision-making responsibility is in the best interest of minor children. That means both parents have a right to take part in making important decisions about their children, unless the court is convinced otherwise. One reason a judge might reject joint decision-making is if a parent is guilty of abuse. If judges deny joint decision-making, they must state their reasons.

What used to be "physical custody" is now referred to as "residential responsibility." Again, different words but similar meaning. It pertains to where a child is going to live.

Generally, courts strive to make sure children spend as much time as possible with each parent, including overnight stays. The closer the parents live to each other, the easier that is to accomplish.

Depending on the circumstances, a child could literally live half a year with each parent. (As a practical matter, however, that even-split scenario is more the exception than the rule.) In some cases, a child may live with one parent for far more time than the other. In these cases, the noncustodial parent will have visitation, which is now referred to as parenting time.

Note that in determining parental rights and responsibilities, 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. (N.H. Rev. Stat. §461-A:6 III.)

Parenting Plans

Parents are expected to provide the court with a "parenting plan." If they can't, the court will do it for them. A New Hampshire parenting plan addresses issues such as: how much time will the child spend at each parent's home; which home will be considered the legal residence for school attendance; how will the children spend the holidays, birthdays, and vacations; and, what method will the parents use to try to resolve any parenting time disputes (such as mediation, for example). (N.H. Rev. Stat. § 461-A:4.)

New Hampshire courts strive to ensure that a child lives in a stable and safe environment. To that end, parents who have committed domestic or sexual abuse may be prohibited from contacting the child or may be required to see their children under supervised visitation only. (N.H. Rev. Stat. §461-A:6 IV.)

How Are the "Best Interests of the Child" Determined in New Hampshire?

Determining the best interests of the child isn't a one-size-fits-all proposition, because no two cases are exactly alike. In New Hampshire, courts must consider a list of factors when evaluating best interests, including:

  • 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. (N.H. Rev. Stat. § 461-A:6 I.)

It's evident from the above list that the law's emphasis isn't just on each parent's relationship with the child, but also their relationship with each other. Cooperation between parents is crucial in fostering a child's emotional and physical health.

Does a Child Have a Say in Determining Custody in New Hampshire?

Under certain circumstances, a court can take a minor child's preference into account. But for that to happen, the judge has to find by clear and convincing evidence that the child is mature enough to make a sound judgment. (N.H. Rev. Stat. § 461-A:6 II.) "Clear and convincing evidence" basically means the judge should have a high degree of confidence in the child's maturity.

A factor that could affect a judge's decision on how much, if any, weight to give a child's wishes is whether there's been improper influence on the child. An example would be where a parent attempts to "buy" the child's vote by lavishing the child with gifts. That simply won't fly, and could negatively impact the judge's view of that parent.

Can You Modify a Parental Rights and Responsibilities Order?

Yes. You can request a modification under certain circumstances, which are set forth in the New Hampshire statutes. Some of these are:

  • the parents agree to a modification
  • the court finds repeated, intentional, and unwarranted interference by a parent with the residential responsibilities of the other parent
  • the court finds by clear and convincing evidence that the child's present environment is detrimental to the child's physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change
  • the parents have substantially equal periods of residential responsibility for the child, and it's determined that the original allocation of parental rights and responsibilities isn't working
  • the court finds by clear and convincing evidence that a minor child is now sufficiently mature to make a sound judgment concerning the child's preferences
  • the modification makes either a minimal change or no change in the allocation of parenting time between the parents
  • the parenting time allocation took into account the travel time between the parents' residences, and that travel time has changed enough so that the existing order is no longer in the child's best interest, and
  • the parenting time allocation took into account a parent's work schedule, and that schedule has substantially changed so that the existing order is no longer in the child's best interest. (N.H. Rev. Stat. § 461-A:11.)

When it comes to changing a current parental rights and responsibilities order, remember that the best interests of the child continues to be at the heart of any modification decision.

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