New Hampshire Child Custody Laws

New Hampshire Child Custody

Here’s what to know if you’re engaged in a child custody action in New Hampshire.

What are the Types of Child Custody in New Hampshire?

Child custody is defined as the guardianship of a child, covering both physical and legal custody.  However, in recent years, New Hampshire has modified language regarding custody.

Most states use the term legal custody, but New Hampshire now calls this “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, religion, education, and general welfare.

Physical custody is now referred to as “residential responsibility.” This still refers to where a child lives after a divorce.

New Hampshire law presumes that joint decision-making responsibility is in children’s best interest. That means both parents have a right to take part in making important decisions unless the court is convinced otherwise.  That might be due to substance abuse, neglect, domestic violence, or criminal activity.  When judges deny joint decision-making, they must state their reasons.

Under normal circumstances, courts try to ensure children spend as much time as possible with each parent after a divorce.  Courts start with the assumption that “children do best when both parents have a stable and meaningful involvement in their lives.”

Due to practical and scheduling issues, it may be best if a child lives with one parent far more time than the other.  This parent is known as the custodial parent.  In these cases, the noncustodial parent will have visitation, referred to as parenting time.

Under New Hampshire law, when 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.

The decision-making and the residential responsibilities are spelled out in detail as part of a parenting plan.  Parents are expected to attempt to create an agreement that works for all parties and is in the child’s best interests.  Parents often get help from mediators or family law attorneys to help draft a parenting plan.

The court will review the plan and approve it in many cases.  However, when parents can’t reach an agreement, the court will decide instead.

Because divorces take a while to complete, courts can issue temporary orders.  These remain in effect while the case is in progress.  They end when the divorce is finalized and are often replaced with new orders which may remain the same.

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Determining Child Custody in New Hampshire

New Hampshire judges evaluate the specifics of the custody dispute to determine what custody arrangement is in the child’s best interests.  Each child custody case is unique, but courts use several overarching factors to help guide them to a fair and just decision.

Those factors include:

  • The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance
  • The ability of each parent to ensure that the child receives adequate food, clothing, shelter, medical care, and a safe environment
  • The child’s developmental needs and the ability of each parent to meet them, both in the present and in the future
  • The quality of the child’s adjustment to the child’s school and community and the potential effect of any change
  • The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to harm the child or a parent.
  • The support of each parent for the child’s contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or a parent
  • The support of each parent for the child’s relationship with the other parent, including whether contact is likely to result in harm to the child or a parent
  • The relationship of the child with any other person who may significantly affect the child
  • The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or a parent
  • Any evidence of abuse and the impact of the abuse on the child and the child’s relationship between them and the abusing parent
  • If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration
  • Any other factors the court deems relevant

Does a child have a say in determining custody?

Sometimes.  Under specific circumstances, a court can consider a minor child’s wishes.  Generally, older children have more significant input than younger children.  The judge must find clear and convincing evidence that the child is mature enough to make a sound judgment.

Judges also look for evidence that a child has been improperly influenced into a choice one way or the other.  For example, a parent may attempt to sway the child’s vote by lavishing the child with gifts.

What if there is evidence of abuse between the child and a parent?

Courts will pay close attention to any claim of this nature.  Under new Hampshire law, abuse is defined as any of the following:

  • Sexual abuse
  • Physical abuse or injury that was caused intentionally or by other than accidental means
  • Psychological injury that causes the child to show symptoms of emotional problems
  • Being subjected to human trafficking
  • Being subjected to female genital mutilation
  • Or any other act of abuse as defined by the legal definition of domestic violence in New Hampshire

If you make a good faith allegation of abuse and support it with facts, and take reasonable steps to protect your child or get treatment for them, you cannot lose parenting time or contact with your child based on your actions.

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What is New Hampshire’s Best Interests of the Child Standard?

New Hampshire child custody laws are enforced on the primary premise of taking actions based on the best interests of the child.  That drives all decisions, not other external factors, such as what the parents want.

Courts will use the factors above to determine child custody, but these factors are always considered against the backdrop of the best interest standard.

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What to Know About Parenting Plans

Parenting plans are detailed instructions about each parent’s rights and responsibilities regarding a child’s physical and legal custody.  Courts prefer that parents develop a plan which may involve using a mediator or other neutral third party.  Parenting plans must be developed with the child’s best interest standard in mind.

The court will develop a parenting plan determining custody when parents can’t agree.  No matter which party creates a plan, the court must ultimately sign off to create a legal framework that all parties must follow.

All parenting plans are unique, but they should contain the following elements at a minimum.

  • Physical custody details, including the number of overnight visits for each parent.
  • Detailed visitation schedules
  • Legal custody and how those responsibilities are allocated between parents.
  • Holiday and school break schedules
  • Vacation and travel approval and advance notifications
  • The manner of exchanging children, including when, where, and time of day
  • Transporting children for visitation and other necessary movements
  • How a child will communicate with both parents
  • How does communication between parents take place?
  • Contact with other family members and friends
  • How are tuition, medical costs, school activities, hobbies, and recreational activities expenses handled?
  • Child support payment amounts and recourse if a parent falls behind.
  • Access to records and information
  • Children’s use of technology and online activities
  • How to address child discipline and mental health issues
  • Guidelines when a new partner is involved
  • Grooming and dress guidelines (extreme haircuts, make-up, etc.)
  • Drinking or drug use in the presence of the children

Parenting plans are legal documents, and both parents must follow them or run the risk of court actions.  This can include contempt of court charges, penalties, fines, and in some cases, jail time.

How Do I Modify a New Hampshire Custody or Visitation Order?

You can file a petition to request a modification under certain circumstances 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.

Changing a current parental rights and responsibilities order must still result in meeting the child’s best interests.  The same factors used to create an original order will still apply to a modified order.

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New Hampshire Child Custody FAQs

Can New Hampshire judges hire an attorney or Guardian Ad Litem to represent the child?

Yes.  New Hampshire has statutory authority to appoint a guardian ad litem or attorney to represent the child in a custody case. These court-appointed workers are often tasked with investigating the family situation and advising the court on what custody situation would be in the child’s best interests. This person advocates for the child’s best interest, and only the child.  The parent’s interests are not a factor.

Do grandparents or other relatives have custody or visitation rights in New Hampshire?

In some cases, the answer is yes.  If a third party can show they have a significant interest or history with the child, and if parents approve, courts may grant visitation in some instances.  Third parties can also seek child custody when both parents are shown to be unfit and would endanger the child if they are awarded custody.

What happens if the other parent falls behind on child support payments?

You cannot withhold visitation if the other parent is in child support arrears.  The two issues are separate.  If you withhold visitation, you violate a court order, and the other parent can seek assistance from the court to force you to comply with what the child custody case order provides.

Helpful Resources

New Hampshire Divorce Guide

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