For many parents, the lost time with children is the hardest part of getting divorced. No longer having them under the same roof every night and losing the ability to do things with them whenever you want can lead to feelings of loss and loneliness. Instead, parents must share time with former spouses and schedule activities and events during parenting time, or rely on the kindness and generosity of the former spouse to share their time. However, it is important to understand your custody rights during divorce to ensure that you assert them properly without pushing for rights you do not have or agreeing to fewer rights than you are entitled to. At Friedman & Bresaw, PLLC, our divorce attorneys understand how important it is to maintain the relationship between parent and child. Schedule a consultation by calling (603) 707-4800. We may review your case and offer guidance regarding how to proceed with your custody or divorce case.
What Are Custody Rights in New Hampshire?
In New Hampshire, custody rights are formally outlined in a parenting plan. This parenting plan details the following information:
- Legal Decision-Making Responsibility: This defines which parent has the authority to make the major decisions about the child’s upbringing, including religion, education, and healthcare. This may be given to one parent or shared by both.
- Parenting or Physical Responsibility: This defines which parent provides the child’s home and takes care of them on a day-to-day basis. Even if the parents share physical custody equally, one parent is typically identified as the primary parent that the child lives with.
- Parenting Time Schedule: This outlines when the child is with each parent, including holidays and school breaks. For example, the child is with Parent 1 Monday afternoon after school until Friday at 7 p.m., and with Parent 2 from Friday at 7 p.m. until they are dropped off at school on Monday morning. This also specifies details such as who provides transportation for exchanges or clauses such as right of first refusal, a requirement that each parent must offer childcare time to the other parent before using a third party, such as daycare, babysitter, or other relatives, as childcare.
- Other Details: Parents can include other details regarding custody, such as methods of information sharing and access, methods for resolving disputes, relocation procedures, requirements for joint decision-making on specific issues, or morality clauses. However, parents cannot include grandparent visitation in a parenting plan. If they are concerned about grandparents being denied visitation by the other parent, parents should advise grandparents to file for grandparent visitation rights.
During divorce in New Hampshire, parents can agree on a parenting plan as part of a marital settlement agreement. They can also attend mediation to try to agree on a parenting plan. If they are unable to agree through other methods, the court will decide on a parenting plan for them.
What Role Does the Court Play in Custody Rights During Divorce?
New Hampshire courts play a vital role in custody rights during divorce. The court ensures that parents complete the state’s mandatory Child Impact Program (CIP) required by RSA 458-D, which is designed to help parents successfully navigate the transition from married parents to cooperative co-parents. Parents must register for this class no later than 45 days after the respondent has been served. They must be registered for or have completed the course before their first appearance, or they may face sanctions.
The court also approves parenting plans that the parents have created themselves in a marital settlement agreement or through mediation. Judges review these plans to ensure that they are fair and legal. If parents are unable to agree on a parenting plan, the court will review the facts of the case, consider relevant factors, and make a custody decision in the best interests of the child.
What Are the Best Interests of the Child?
RSA 461-A:6 provides that the courts must be guided by the best interests of the child in determining parental rights and responsibilities, and gives a list of factors that can be considered as part of that determination. However, it does not provide an exact definition of what the best interests of the child are. This is because there is not a single definition that fits all children. This also means that custody may not be split exactly 50/50.
While there is no single definition of the best interests of the child, judges should ensure that their decision means the child will receive proper guidance, care, and affection. This means considering a variety of factors to decide the most suitable determination of custody rights during divorce.
Child’s Relationship With Each Parent
New Hampshire courts typically attempt to ensure that the relationships between children and their parents remain intact, barring extreme circumstances that might require limiting or eliminating contact between the child and their parent. However, they will evaluate the child’s relationship with each parent before deciding on a parenting schedule. A limited relationship with the child may result in less parenting time, but if a parent is able to prove that the other parent is the cause of that limited relationship or can show that other circumstances limiting the relationship will be changed, it does not have to cost a parent time with their child.
Other relationships may also be considered. The relationships between siblings are often seen as very important, and a support system of aunts, uncles, cousins, grandparents, and other close relationships with relatives may influence custody rights. Alternatively, exposure to problematic relationships or relatives, such as sex offenders or relatives who repeatedly drive the child around while under the influence, may negatively affect custody during divorce.
Relationship Between the Parents
The relationship between the parents is also an important factor in deciding child custody in New Hampshire. If the parents get along well, they are likely to be able to make any parenting plan work, and an equal or nearly equal parenting plan may be ordered.
However, if the parents are unable to get along most or all of the time, the judge may have to consider whether one parent should have more time with the child than the other. In these cases, they may have to determine which parent is most likely to encourage the relationship between the child and the other parent, despite the conflict between the parents.
Ability to Provide a Safe and Supportive Environment and Meet the Child’s Needs
Each parent’s ability to provide a safe and supportive environment for the child plays a crucial role in determining custody rights. This involves providing a nurturing, loving, and supportive environment. Parents must also be able to demonstrate their ability to meet their child’s current and future emotional, physical, and developmental needs. These needs include food, shelter, medical care, clothing, love, affection, and a safe environment free from dangers.
This includes having the financial capacity, but also the emotional and physical capacity to meet those needs. Assisting the child with adjusting to school and community, and ensuring the stability of the child’s environment and the relationships within it, including the relationship with the other parent, would fall under the emotional and physical capacity to meet the child’s needs.
Evidence of Abuse
Evidence of abuse can influence custody. This abuse does not have to be directed toward the child. Abuse of the other parent, as well as evidence of abuse in past relationships or of other children, may also determine custody. Parents who have been abused or whose children have been abused should gather any evidence they have, such as photos, videos, police reports, medical records, and witness statements. Parents accused of abuse should be honest about their history, particularly if there are police reports or criminal convictions related to the abuse.
A Parent’s Incarceration
At first glance, incarceration may seem like a default judgment for the non-incarcerated parent to have full custody. However, the judge will consider why the parent is incarcerated and for how long. They may also consider the parents’ history of incarcerations. For example, if the parent is incarcerated for the first time, likely to be released soon, and the conviction was a non-violent crime, the judge may create a parenting plan that allows for the incarcerated parent to have some form of custody after their release. If that parent has been incarcerated repeatedly, with limited time between incarcerations, or for abuse against the child, or is expected to be incarcerated long-term, the judge may not grant them any form of custody.
Other Relevant Factors
Every family has a unique dynamic and unique factors that can create different custody arrangements for otherwise similar families. Therefore, New Hampshire law allows judges to consider any other factors they consider relevant when determining custody during divorce. Parents who believe they may have other relevant factors may want to consult with a divorce attorney at Friedman & Bresaw, PLLC to review their case and possibly receive guidance about what factors to introduce in court.
How to Proceed With a Parenting Plan During Divorce in New Hampshire
Whether parents agree on a parenting plan or need the court to decide for them, the process is relatively simple. Even if parents agree on a parenting plan, they can consult with or be represented by an attorney if they wish.
Attend Mediation If Needed or Desired
Some parents can discuss and decide custody rights during divorce with no issue. Others may need a little assistance. Mediation can be an excellent method of coming to an agreement for parents who generally get along but are struggling a bit to determine the right custody arrangement for their family. The mediator, a neutral third party, assists by helping the parents find common ground that they already agree on, and then working toward finding more things they agree on or finding a satisfactory compromise.
Mediation is not typically required by New Hampshire family courts, though a judge may order parents to attend it if they think it may be helpful. Parents may be able to resolve their issues in a single mediation session or may need to attend multiple sessions to work out all the details, particularly if they are using mediation to handle other issues, such as child support or property division. Parents can request court-connected mediation through the New Hampshire family court, with a $450 fee split evenly between them for four hours of mediation plus one additional hour of administrative work associated with the mediation. They can also find a mediator on their own. In some cases, after mediation has been completed or deemed inappropriate, Neutral Case Evaluation (NCE) may be an option for finding a resolution.
Draft the Parenting Plan
Once parents have agreed on the parenting plan on their own or through mediation or NCE, they should draft the parenting plan. Parents are advised to use the State of New Hampshire parenting plan form, as it includes all the legally required sections. However, they can draft their own plan as long as they are careful to include all legally required sections and information. Parents may also want to consult with an attorney to review the plan and ensure that their intentions are clearly laid out.
File the Plan With the Court for Approval
Once the parenting plan is drafted, parents should submit it to the court for approval. The court’s docket and workload, as well as the complexity of the divorce case and parenting plan, will determine how long approval takes. This may be as little as a few weeks, a few months, or even a year or more for extremely complex cases if the court is busy. Parents should consult with an attorney if they have questions about how to proceed with custody and parenting arrangements while waiting for court approval of their parenting plan.
Seek a Judge’s Decision If Unable to Agree
In cases where the parents are unable to agree, the court will decide for them. Once parents have completed the CIP and any mediation or NCE without being able to agree, they can request that the court decide. This may require submission of various documents, including each parent’s proposed parenting plan, financial affidavits, and child support guidelines worksheets. Parents should also submit any evidence they have that shows why their proposed parenting plan is in the best interest of the child. The judge will review all of this information and make a decision.
How a Divorce Attorney May Assist You
As a parent, you want to spend as much time with your child as possible, but divorce limits that time considerably. That is why understanding your custody rights during divorce is critical. Whether you can agree with your child’s other parent or must rely on a judge to make the decisions for you, knowing your rights is essential to getting the fairest outcome and maintaining relationships between your child and both parents. Whether you have questions regarding parenting plans, need a parenting plan draft reviewed, or are preparing to ask a judge to make a decision for you, an experienced divorce attorney with Friedman & Bresaw, PLLC, may be able to assist you. Call (603) 707-4800 to schedule a consultation and learn more about your Meredith, Laconia, or Belknap County divorce.
