NH Laws About Getting Physical Custody of Children

By Mary Jane Freeman

New Hampshire has joined the ranks of a few other states that no longer use the term "custody" to describe the legal responsibilities of parents. So, when you file for divorce in New Hampshire, the court will award parental rights and responsibilities instead of custody. If you wish to have physical custody of your child, you must indicate that on your divorce petition and note whether you want this authority to be held solely by you or shared with your ex-spouse.

Divorce Petition

The first step in obtaining custody of your children in New Hampshire is to submit a petition for divorce along with a personal data sheet with the local circuit court. If you and your spouse are in agreement about wanting to divorce, you can submit a joint petition. The petition requires certain basic identifying information, about you, your spouse, and your children, as well as the type of relief you are seeking, such as property, child custody and support, and alimony. The personal data sheet is a one-page form that requests basic demographic information. After you file your petition, you must provide your spouse with a copy of the divorce paperwork, usually by process server; if you filed jointly, you can skip this step.

Child Impact Seminar and Parenting Plan

Once your divorce petition is filed and served, the divorce process begins. New Hampshire law requires divorcing spouses with children to attend a four-hour class that discusses the impact of divorce on children. The class must be either scheduled or completed before the first hearing in your divorce case, during which a judge will explain the divorce process along with important issues to consider regarding your children. The court will also schedule follow-up deadlines for additional paperwork, such as the submission of a parenting plan. This plan, filed separately or together with your spouse, must outline such things as which parent will provide a home and make decisions for the child, a visitation schedule, how information will be shared, transportation arrangements, and how disputes will be resolved. If accepted by the court, the plan will be incorporated into your divorce decree.

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Parental Rights and Responsibilities

To properly draft the parenting plan, especially with respect to physical custody, you must understand the different forms of parental rights and responsibilities available in New Hampshire, which fall into two categories. The first is decision-making responsibility, known as legal custody in other states. It is the right of a parent to make decisions concerning a child's upbringing, such as non-emergency medical care, religion and education. New Hampshire law presumes that it is usually in the best interests of the child if parents share this authority. However, the court will award sole decision-making responsibility to one parent if it finds a shared arrangement is not in the child's best interests, for example, when there is a history of abuse. The second category of parental rights and responsibilities is residential responsibility, known as physical custody in other states. Residential responsibility represents a parent's right to provide a home for the child. If this responsibility is not shared, the parent without residential responsibility is typically granted parenting time, known as visitation in other states, and ordered to pay child support.

Best Interests of the Child

If you are unable to reach an agreed-upon parenting plan, the court is likely to send you to mediation. During the mediation process, an independent third party attempts to resolve the existing conflict and help you and your spouse negotiate a plan. If mediation is unsuccessful, the court will establish a plan for you. To determine an arrangement that is in the best interests of your child, the court evaluates several factors outlined in state law, including the relationship each of you have with your child; your ability to provide sufficient shelter, medical care, food, clothing and a safe environment; and your willingness to ensure the other parent has a positive relationship with the child and frequent contact. If you feel you should have sole residential responsibility, it is important to explain to the court why and provide adequate evidence that will help the court come to the same conclusion.

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