Parents' Residential Responsibilities and Parenting Time (Formerly Custody and Visitation) in a New Hampshire Divorce

Where the children will live and when they will spend time with each parent?

New Hampshire no longer uses the terms "custody" and "visitation" which are thought to focus on the idea of parents' rights over their children rather than the preferred method of examining the best interests of the children in determining how children's living arrangements and time spent with each parent would be determined. The new system under New Hampshire's Parental Rights and Responsibilities Act, fosters parents working together to find an arrangement that serves the best interests of the children, rather than "fighting" with each other and one parent "winning" and the other "losing."

This Act encourages parents to set their differences aside to work out a shared residential schedule that will accommodate the needs and schedules of both parents and their children. To begin with, both parents are required under the Act to attend a 4-hour seminar on understanding and minimizing the negative effects of divorce on their minor children. Often, parents do come to a fair agreement on these issues and the specifics of their agreement are then included in the written parenting plan, which is approved and enforced by the court. (See If circumstances later change, requiring a revision of the court orders in place, the parties have the option of renegotiating their arrangement and returning to court for approval of changes and a new order to be put in place.

While it may at first seem unlikely that a divorcing couple would be able to work together to come to agreements, education efforts support couples in making the best decisions possible for the sake of their children, rather than focusing their attention on their own disagreements with their spouse, which brought them to the point of divorce. This process is constructive and is becoming popular in a growing number of states.

Which Parent will have residential responsibility?

The best interests of the child are paramount in determining where that child will live. Parents should be cautioned not to focus on and argue why they "deserve" to have the child live with them because the court will not see it this way. Remember that no matter how justified you feel in having your child live with you, the court is concerned ONLY with what is best for your child. To illustrate, in New Hampshire, courts consider the following factors when making a decision regarding where a child will live:

1. The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
2. The ability of each parent to assure the child receives adequate food, clothing, shelter, medical care, and a safe environment.
3. The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.
4. The quality of the child's adjustment to the child's school and community and the potential effect of any change.
5. The ability and disposition of each parent to foster a positive relationship.
6. The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact.
7. The support of each parent for the child's relationship with the other parent.
8. The relationship of the child with any other person who may significantly affect the child.
9. The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children.
10. Any evidence of abuse, and the impact of the abuse on the child.
11. 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.
12. Any other additional factors the court deems relevant.

Parenting Plan

Today, it is considered counterproductive for courts to do all of the decision making in custody and visitation matters and then just hope everything works out between parents and children. Parents are in the best position to understand the needs of their children and to formulate a workable plan for the children's sake, putting aside how they now feel about each other as they proceed. Both parents love their children and the children depend on them to develop a plan that works for their situation. Parents attend a seminar to assist them with thinking about the best interests of their child. Ideally, they work together to submit a Parenting Plan to the court. (See NH Divorce Requirements for an outline of a Parenting Plan or for a form, go to http://www.courts.state.nh.us/forms/nhjb-2064-fs.pdf ) In cases of abuse or neglect or failure to cooperate, one parent may have to propose a Parenting Plan to the court.

The parenting plan sets forth agreements involving:

• Decision-making responsibilities
• Residential responsibility and parenting schedules (formerly custody and visitation)
• Legal residence for schooling
• Vacation schedules
• Transportation/exchange of children
• Information sharing and electronic access between parents and children
• Relocation of residences
• Procedures for review of parenting plan
• Methods for resolving differences