Physical and Legal Custody in New Hampshire

What's the difference between legal and physical child custody in New Hampshire?

What is the Difference Between Legal Custody and Physical Custody?

Legal custody refers to the right and responsibility to make legal decisions about important matters affecting a child, including:

  • education
  • health care, and
  • religious upbringing.

It also includes the right to access important information, such as school and medical records.

Physical custody refers to where and with whom the child will live.

In New Hampshire, divorcing or separating parents are encouraged to share in the rights and responsibilities of raising children and to maintain frequent and continuing contact with their children after a separation or divorce.

However, if the court finds that shared custody would be detrimental to the children, for example, if a parent has abused the other parent or the children, it may find joint custody inappropriate and make custody and visitation orders that protect the children or the abused spouse, or both.

Parents are encouraged to come up with their own agreements about legal and physical custody and to work out a schedule of when and where the children will spend their time. These agreements should be turned into what courts call a “parenting plan.”

What is a Parenting Plan?

In New Hampshire custody proceedings, parents are asked to develop their own parenting plan to be included in the court's custody and visitation orders.

A parenting plan may address all of the following issues:

  • decision-making (legal custody) and residential (physical custody) responsibilities
  • access to information, including telephone and electronic access
  • the child’s legal residence or domicile for school attendance
  • a parenting schedule, which also addresses weekends, holidays, birthdays, and vacations.
  • transportation and exchange of the child
  • either parent’s potential relocation
  • a procedure for review and adjustment of the plan, and
  • methods for resolving any disputes about the plan (using a mediator or going back to court).

Parents are usually referred to mediation to get help developing their plans. A third party neutral mediator, who is trained in family law cases, will help the parents identify their issues and work toward agreements. If parents can’t agree, then a court will make all custody decisions and develop its own parenting plan for the parents to follow.

How do Court’s Decide Legal Custody?

If there’s an agreement between parents for joint legal custody, or if one parent is requesting joint legal custody, courts will presume that joint legal custody is in the child's best interest, and generally, will grant it. If a court declines to award joint legal custody, it must spell out the reasons for the denial in its decision.

Courts may deny joint legal custody when it’s not in the child’s best interest (see the “best interest” factors below). For example, if the parents are completely unable to cooperate in decision-making, then the court may award sole legal custody to one parent.

Or, where the court finds a history of abuse, it must consider such abuse as harmful to the child and as evidence in determining whether joint decision-making responsibility is appropriate. In such cases, the court must make orders for legal custody that best protect the child and/or the abused spouse.

How do Court’s Decide Physical Custody?

It’s common for New Hampshire courts to award primary physical custody to one parent, and secondary physical custody to the other. In this case, the child would reside in the home of the parent with primary physical custody and the other parent would see the child on a regular basis, according to a schedule set forth in a parenting plan.

However, when both parents have been very involved in their child's life and are committed to working together long term, courts may be more likely to award joint physical custody. In this case, the child would spend comparable--though not necessarily exactly equal--time in each household, commonly alternating days or weeks. To share joint physical custody, parents have to commit to living close together so that the logistics of transporting the child between homes, to school, and to other activities isn't burdensome for everyone.

Whatever the result, courts must always consider the "best interest of the child" when deciding how to award custody.

The Best Interests of the Child

When making custody decisions, New Hampshire courts are guided by the best interests of the child, and must consider the following factors:

  • the child’s relationship with each parent and each parent’s ability to provide the child with nurture, love, affection, and guidance
  • each parent’s ability to provide adequate food, clothing, shelter, medical care, and a safe environment
  • the child’s developmental needs and each parent’s ability to meet them
  • the child's adjustment to school and community and the potential effect of any change
  • each parent’s ability to foster a positive relationship and frequent and continuing contact with the other parent, including whether contact is likely to result in harm to the child or to a parent
  • each parent’s support for the child’s relationship and contact with the other parent, including whether the relationship or contact is likely to result in harm to the child or to a parent
  • the child’s relationship with any other person who may significantly affect the child
  • the parents’ ability to communicate, cooperate with each other, and make joint decisions concerning the child, including whether contact with the other parent is likely to result in harm to the child or to a parent
  • any evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent (if there’s a history of abuse, the court must make orders that best protect the child)
  • either parent’s incarceration, the reason for/length of incarceration, and any issues that arise as a result
  • the child’s preference, if the child is mature enough to make a sound judgment, and
  • any other factors the court deems relevant.

For a complete list of the factors courts consider, see N.H. Rev. Stat. § 461-A:6.

(See Child Custody in New Hampshire: The Best Interests of the Child for detailed information).

Modification of Physical Custody

Because stability is important for children, New Hampshire courts are reluctant to change physical custody after issuing a permanent order. However, courts may modify custody orders under certain circumstances, including:

  • where parents agree to a modification
  • where one parent has engaged in repeated, intentional, and unwarranted interference with the other parent’s rights to custody and/or visitation with the child
  • if the child's present environment is detrimental to the child's physical, mental, or emotional health, and the advantage of changing the order outweighs any harm a change may cause
  • where the parents share joint custody, and either parent asserts (or the court finds) that the original custody order is no longer working, the court may change the order as long as it’s in the best interests of the child
  • if the change is minimal and in the best interests of the child, and
  • based on the child’s preference, if the court finds the child is mature enough to make a sound judgment.

The court may issue an order modifying any section of a permanent parenting plan based on the best interest of the child.

For the full text of the section dealing with modification of custody orders, see N.H. Rev. Stat. § 461-A:11.

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