When you became a parent, you likely envisioned a happy family with your spouse. You probably did not imagine that there might be a day when you would not be living in the same house with your child every day, or rely on a court system to help you and your child’s other parent make decisions, or pay child support. When you find yourself in that unfortunate and devastating situation, your first thought is often how to get custody. You want to know how you can have your child with you full-time, whether that means cutting the other parent out entirely or simply limiting their time as much as possible. However, custody in a divorce is not that simple. You cannot simply ask a judge to grant you sole custody and expect that wish to be granted. However, there are things you can do to increase the chances that you are given custody of your child. At Friedman & Bresaw, PLLC, our experienced family law attorneys may be able to provide the guidance and support you are looking for as you navigate custody issues as part of your divorce. Call (603) 707-4800 so we can book a consultation and review your case to see how we may help you.
Understanding New Hampshire Child Custody
Child custody is the matter being decided when the court orders which parent the child will live with, who will pay child support, and who will make decisions, but New Hampshire law does not refer to it as such. Instead, New Hampshire statutes use different terms to describe the different aspects of child custody. While it is fine for parents to refer to it as custody, understanding the terms that the state uses will assist the parents in having context for the specific aspect of custody is being referred to when certain terms are used.
Per NH RSA §461-A:1, some of the terms a parent may read or hear used while trying to get custody in a divorce include:
- Parenting action: Actions taken related to child custody and visitation, including the initial petition for custody and any modifications. The New Hampshire Courts offers information regarding the requirements that must be met to file a parenting action and instructions for filing both joint and individual parenting petitions.
- Decision-making responsibility: This is the responsibility for making decisions for the child and may refer to all issues or specified issues only. Parents often refer to this as legal custody.
- Parental rights and responsibilities: These are all the rights and responsibilities that a parent has regarding their child.
- Parenting plan: A written plan that describes each parent’s rights and responsibilities regarding the child.
- Parenting schedule: A schedule that outlines when the child is in the care of each parent.
- Residential responsibility: This refers to a parent’s responsibility to provide a home for the child. Parents often refer to this as physical custody.
Using family-focused terms like these keep the attention on the children as people rather than property the parents are fighting to possess. While the state generally prefers joint legal and physical custody (or joint decision-making responsibility and joint residential responsibility), each family is unique and the court’s decision will be specific to each family. However, it is also important to note that the court prefers not to make the decision for the family.
Custody In a Divorce: The Parenting Plan
Custody in a divorce is largely up to the parents to decide. However, it also makes concerns like how to get custody more complicated, as it is rare that any parent will just agree to let the other parent have custody. The parenting plan is the core of child custody in New Hampshire. New Hampshire courts prefer that the parents work together to create a parenting plan rather than to create one for them. Per NH RSA §461-A:4, parenting plans contain details such as the parenting schedule, methods for the child to travel between the parents’ homes, decision-making responsibility, plans for resolving future disputes, and information sharing and access.
If the parents are able to agree on a parenting plan, and the plan fits the children’s best interests, the judge will usually approve it and the parents can then move forward with that plan. If the parents are unable to agree, the judge will likely ask them to attend mediation to try to work out the details they cannot agree on. If the parents are still unable to agree, the judge will ultimately make a custody determination.
How To Get Custody When Joint Custody Is Not What You Want
How to get custody is a complicated matter in New Hampshire, where joint custody is the preferred arrangement. However, it is not necessarily impossible. Custody in a divorce is based on many factors, and there are steps that parents can take that will increase the chances that they get the custody arrangement they are seeking. There are no guarantees, though, and parents should take these steps with the understanding that they still may not get the outcome they hope for.
Always Act In Your Child’s Best Interests
Parents want what is best for their children, but during a divorce, they can also lose sight of what that is. Between the pain and anger that often comes with divorce, and the pain associated with the thought of not seeing their child every day, parents can easily begin operating from a place of what they want rather than what is best for the children. How to get custody can quickly become a matter of the parents fighting to get their way instead of seeking solutions that meet their children’s needs.
Parents can persuade a judge to give them custody in a divorce by always acting in the child’s best interests, especially if their spouse is unwilling or unable to do the same for some reason. Before every request to the court, consider whether it is in the best interests of the children and if it is not, whether there is a way to present it as if it is.
Consult With an Attorney
While it is not legally required for parents to be represented by an attorney for a divorce or custody case, there can be many benefits to meeting with and hiring one. One potential benefit an attorney may offer is clarity on what the parent genuinely wants. They can explain the nuances of New Hampshire child custody and the potential drawbacks of the custody arrangement the parent is seeking to ensure they fully understand what they are asking for. Additionally, an attorney at Friedman & Bresaw, PLLC may be able to explain how to file for divorce, as well as why a particular custody arrangement is not feasible, what may cause the court to reject a potential parenting plan, and offer other guidance to help parents make informed decisions about their custody options.
Do Not Start Dating
When parents are divorcing, or are addressing custody after their divorce is final, they may feel ready to move on in other areas of their lives, such as dating. Dating may seem unrelated to custody, but it can have an impact on custody. One way it can affect custody is that it can look to the court as if the parent is making impulsive or reckless decisions that do not have the children’s best interests in mind, especially if the other parent is not dating.
Another way dating can impact custody is that the other parent could potentially find out who the parent is dating and perform background checks. If there is any criminal history, domestic violence, substance abuse, or other negative information, that could be used against the dating parent as evidence that they are not putting the children’s best interests first, even if the dating parent is not introducing their dates to their children.
Know Which Factors the Court Considers
NH RSA §461-A:6 outlines factors that the New Hampshire courts consider when making decisions regarding child custody in a divorce. While the best interests of the child should always be the primary guiding factor, other factors the courts consider include:
- The child’s relationship with each parent and each parent’s ability to nurture, love, guide, and provide affection to the child.
- Each parent’s ability to provide food, shelter, medical care, clothing, and a safe environment for the child.
- The child’s developmental needs, and each parent’s ability to meet those needs, both presently and in the future.
- The support each parent provides for the child’s relationship with the other parent.
- Any evidence of abuse.
- The parents’ ability to communicate and cooperate with each other, and to make joint decisions regarding the child.
- The child’s relationship with any other people that may significantly impact the child.
- Whether either parent is incarcerated, and if so, the length of and reason for incarceration, and whether the incarceration results in any unique issues.
- Any other factors that the court decides are relevant to the case.
While parents should not lie or put on a pretense to persuade the court to give them custody, understanding how these factors can impact a custody decision can allow the parents to present themselves in the best possible light.
Honestly Assess Strengths and Weaknesses
When parents are trying to determine how to get custody, they should take some time to honestly assess their strengths and weaknesses in regard to parenting. They should also assess their spouse’s parenting strengths and weaknesses. This information will allow them to be prepared in court to explain why they are the best parent to have custody. This will also allow them to not only acknowledge their weaknesses, but to have a plan to address and improve those weaknesses, which can also boost their chances of getting custody. By showing that they are being honest with themselves and others about their parenting abilities, they can show the court that they are considering their child’s best interests and also looking for better ways to meet the child’s needs.
Gather Evidence That Backs Up Allegations
If a parent is wondering how to get custody because the other parent has a criminal history that could impact the child, a history of domestic violence, child neglect, substance abuse, or other inappropriate behavior that may endanger the child, they must have evidence that backs up these allegations. This evidence can include police reports, photos, videos, text messages, social media posts, financial records, or other proof of the other parent’s behavior.
Many parents would like to record phone calls in which the other parent acknowledges the allegations. However, it is important to note that New Hampshire only allows the recording of phone calls if both parties are aware of the recording and both parties consent to the recording. This means that if a parent wants to legally record the phone call, they must tell the other parent, who will likely be careful what they say when they know it is being recorded. If the parent attempts to record the phone call without informing the other parent and getting their consent, the recording may be inadmissible and could potentially result in both criminal and civil charges.
Honestly Assess Your Evidence’s Viability
Whether the parent has collected evidence of the other parent’s inappropriate behavior or evidence to bolster their own case and show why they are the parent that should have custody, it is important to assess the evidence for viability. Evidence should be tangible, convincing, current, relevant, and documented clearly. This means it should be evidence the court can easily see, read, or hear. The evidence should be recent evidence and relevant to the case. For example, photos of the other parent purchasing drugs last week would be recent and relevant, but a photo of them purchasing drugs in high school is not recent and is unlikely to be considered relevant.
Documentation of evidence can include date and time stamps, information about who provided the evidence, how the evidence was procured, and other details that can help the court authenticate the evidence. An attorney may be able to help parents ensure that their evidence meets all of these requirements.
Prioritize Your Desires
Parents often wonder how to get custody for a variety of reasons. From not wanting to have limited time with their children to genuinely believing their child could be endangered when they are with the other parent, there can be just one or several reasons a parent is fighting for custody. If a parent has more than one reason, they should evaluate the reasons and prioritize them. Parents should determine what exactly they hope to have happen or to prevent happening and how they can accomplish that. For example, eliminating a parent with a substance abuse issue from the child’s life may not be likely, but the parent may be able to request supervised visits that lead to more time if the parent can prove they are sober or asking for test results that prove the parent is sober before their parenting time. An attorney may be able to help a parent prioritize these desires and come up with parenting plans that meet those desires.
Determine How Important Sole Custody Is
In connection with prioritizing the reasons for seeking custody, parents should determine how important sole custody is to them. If the other parent is just as determined to have sole custody, or even just wants joint custody, fighting for sole custody could become an expensive, and lengthy, battle. There may be paid experts such as guardians ad litem or custody evaluators brought in to make recommendations to the court. These experts are paid by one or both parents. Guardians ad litem and custody evaluators both need time to get to know the child and the family before making their recommendations, which can make the case take longer.
Calculate Your Budget
Even if a parent has decided that sole custody is vital, their budget may require that they settle for a different custody arrangement. Keeping in mind that the court also considers whether each parent can provide food, shelter, clothing, and other needs for the child, a parent should not completely deplete their finances fighting for custody, even if they are tempted. Calculating a budget can be crucial to ensure the parent does not fight so hard that they end up putting themselves in a position to get the exact opposite result from what they hoped for.
Seek Out and Consider Alternatives
When considering how to get custody in a divorce, parents should also seek out and consider any alternatives to the custody arrangement they hope for. While they do not necessarily need to change their mind and ask for one of the alternatives, by finding and considering them early, parents can work on their arguments explaining why those alternatives will not work in their case.
Words and Phrases That May Help Get Custody In a Divorce
While there really is nothing a parent can do that will guarantee they get the custody arrangement they hope for, there are certain words and phrases that can be helpful when used correctly. Again, parents should not put up a pretense, but the authentic use of these words and phrases may persuade a judge that the custody arrangement they are seeking is best for the child.
Consider asking an attorney about how these words and phrases may benefit your case:
- Best interests of the child: This phrase indicates the parent is putting their child first and remembers that the custody case is all about what is best for the child.
- Status quo: This term means a stable situation or a situation that currently exists. Parents may use it to indicate that if the court grants the custody arrangement they are seeking, their child’s life will remain status quo, or things will not change for the child.
- Child’s schedule: The court is concerned about the child and the child’s best interests. By discussing the child’s schedule and its importance, parents can show the judge that the child comes first. This can also show flexibility by putting the child’s schedule ahead of either parent’s schedule.
- Flexibility: When a family splits into two homes, there is a lot of planning and scheduling, and those plans and schedules will often change. When a parent discusses their flexibility, they show the court that they are willing to put their child’s needs ahead of their own.
- Co-parenting: Co-parenting is a term that indicates that parents can cooperate and act as a team when it comes to parenting their child. Particularly in cases where the parent’s spouse is difficult, indicating an understanding of co-parenting and a willingness to engage in it can be persuasive to the court.
- Step-up plan: If young children, particularly infants or newborns, are involved, a step-up plan allows a gradual increase of time with the non-primary parent without causing separation anxiety. This parenting plan shows a clear desire to put the child’s best interests first while also indicating a willingness to encourage the relationship between the child and their other parent.
- Our child: Many parents make the mistake of referring to their shared child as “my” child when fighting for custody. Not only does this make it sound as though the child is a possession, it can also indicate a desire (even subconsciously) to eliminate the other parent from the child’s life. Instead, refer to the child as “our” child to show respect for the other parent and an understanding that the child loves and has bonded with both parents.
How a New Hampshire Family Law Attorney May Be Beneficial
Determining custody in a divorce is often complicated. There are many factors to be considered, and when you cannot come to an agreement on your own, there can be a lot of fear and worry about what the court will decide. A New Hampshire family law attorney at Friedman & Bresaw, PLLC may be beneficial if you are wondering how to get custody by explaining the custody process, helping you gather evidence, preparing you for hearings, and encouraging negotiations between you and your former spouse to try to avoid having the court decide. Call our office at (603) 707-4800 for more information about getting the custody arrangement you think is most suited to your child’s needs.
