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Child Custody

Custody in Best Interests of the Child

Courts in New Hampshire decide custody by considering the “best interests of the child”. The principle serves as a constant reference point in awarding custody and visitation time, creating custody schedules, and deciding which provisions to include in parenting plans.

Let’s explore the idea of a child’s best interests, what factors are considered and the implications for custody cases.

Parenting Schedules and Plans

A parenting schedule indicates which parent has care of a child at any given time. It forms part of a parenting plan, which is a broader document detailing the responsibilities of each parent.

Parenting schedules and plans are best worked out by parents together, possibly with the help of mediation (where a neutral third-party assists parents to agree). Where an impasse occurs, judges will develop a plan using the best interests of the child principle. Often, the court’s plan will draw on plans proposed by one or both parents.

The best parenting plans balance specificity with flexibility. Plans should be clear about exactly what is meant to happen but without limiting the ability of parents to adapt to the circumstances (which tend to change over time).

Matters that may be included in a parenting plan include:

  1. the decision-making responsibility of each parent and joint decision-making responsibilities
  2. conditions on a parent’s decision to move homes, such as geographic restrictions
  3. the child’s custody schedule, including a vacation schedule and arrangements for holidays and other special days
  4. who is responsible for transport at each changeover
  5. a dispute resolution mechanism.

A parenting plan and custody schedule may be based on joint physical custody, which is also known as shared parenting. Joint custody means each parents has a minimum of 35% visitation time and should normally be preferred by judges — provided that the parents are both considered competent and able to cooperate.

Other, less-equal parenting timetables are also possible, such as 70/30 custody schedules. As explained by Child Custody Solutions, a 70/30 schedule means a child has an average 4 overnights with the non-custodial parent per fortnight.

New Hampshire Parenting Laws

When separated parents arrive at court for a ruling on parenting plans, New Hampshire judges anchor decisions using the principle that the best interests of the child must be served.

Although each case is assessed individually, New Hampshire legislation acknowledges that children benefit by having “frequent and continuing contact” with both their parents. In addition, children are considered to benefit by having parents who “share in the rights and responsibilities of raising their children.”

Judges may consider any factor they consider relevant to a custody decision. But they are also guided by several factors explicitly identified by New Hampshire’s laws. Here are the main factors judges are asked to factor into custody decisions.

Child Health and Safety

Judges consider any issues that may affect the physical well-being of a child. A central concern is the ability and willingness of each parent to provide basic necessities, such as shelter, proper clothing, healthy food and medical care as required. The respect financial resources of the parents are a consideration, along with individual competency and care-giving qualities.

Safety can be an issue also. For example, a parent with a domestic violence record might be granted visitation only under the condition that the visits be supervised. Contact may be prohibited in cases where serious risk of physical or sexual abuse exists.

Emotional Needs and Child Maturity

Custody decisions need to account for the emotional impact on the child, both in the present and future, from ordering certain care arrangements. Existing bonds with caregivers need to be respected while also recognizing that children can be adaptable over time. Judges are inclined to make decisions that keep siblings together.

The maturity of the child is obviously an important consideration. Younger children, for example, have limited ability to cope with time away from their main caregiver(s). Often, judges make orders for graduated increases in visitation time with non-custodial parents to reflect the growing maturity of a child.

Co-Parenting Relationship

New Hampshire legislation emphasizes the willingness of each parent to nurture and maintain an effective co-parenting relationship. The law requires parents to encourage and promote frequent contact — unless there is good reason to conclude that such contact may be harmful to the child.

Communication skills in particular are assessed when a court contemplates making an order for joint legal custody or joint physical custody. For joint custody and a co-parenting plan to be appropriate, parents should be able to communicate and cooperate to make agreed decisions. Otherwise, a decision to award one parent sole custody may be reached.

Legal and Physical Custody Options

Legal custody refers to a parent’s responsibility for making major decisions concerning a child’s health, education or welfare generally.

On the other hand, physical custody refers to the child’s time spent in the care of each parent.

Joint legal custody is preferred unless domestic violence is an issue or other evidence indicates the parents will likely fail at working cooperatively for the benefit of the child.

A judge ordering joint legal custody may also decide that the child should spend similar amounts of time with each parent. Alternatively, a judge may find that, in the child’s best interests, he or she will have a primary physical residence while also spending significant time with the other parent.