Parental Rights & Responsibilities
For many parents, there is no more important issue than how their divorce or break-up will affect their children. Children, regardless of their age, often struggle with their parents' separation. Decisions regarding the children can be highly emotional and complicated, especially in the context of a high- conflict divorce.
New Hampshire enacted the Parental Rights and Responsibility Statute, RSA 461-A, in 2005. The statue, as its name suggests, addresses parental rights and responsibilities for children of divorcing parents as well as children whose parents were never married.
Although you may be familiar with the terms custody or visitation, in New Hampshire, those concepts have been replaced with the new language of parental rights and responsibilities set forth in RSA 461-A. The terms decision-making, residential responsibility, and parenting schedule are now used in New Hampshire to define a parent's role and how time with their children is allocated between them.
RSA 461-A:20 references the specific changes in language and provides:
Any provision of law that refers to the "custody" of minor children shall mean the allocation of parental rights and responsibilities as provided in this chapter. Any provision of law which refers to a "custodial parent'' shall mean a parent with 50 percent or more of the residential responsibility and any reference to a non-custodial parent shall mean a parent with less than 50 percent of the residential responsibility.What are Parental Rights and Responsibilities?
The term "parental rights and responsibilities" means all rights and responsibilities parents have concerning their child. RSA-461-A:1 (IV).What is Decision- Making Responsibility?
In New Hampshire, Decision-making responsibility refers to a parent's responsibility to make decision for the children. It may refer to decisions on all issues or on specified issues RSA-461-A:1 (IV). Decision-making responsibility can be joint and awarded equally to both parents; or, decision-making responsibility can be sole and awarded to one parent.
In New Hampshire, the law presumes that joint-decision making is in the best interest if the children. Joint decision-making means that parents are equally able to make decisions for their children on day-to-day issues and should decide "jointly" on issues that are more significant such as a selection of child's schooling, religious activities and non-routine medical treatment. Each party is able to participate in child's schooling, recreational activities and has the right to obtain all school and medical records for the child.
The Court has the right to award sole-decision making responsibility, meaning one-parent makes the decisions for the child, if the court believes it is in the child's best interest to do so. Situations in which sole-decision making responsibility can be awarded include cases where: one parent committed physical abuse against the other parent, one parent is abusing drugs or alcohol, one parent is incarcerated. Other cases in which sole-decision making may be awarded include cases in which a child has special medical or developmental needs, or because the parents are in a high-conflict situation where the children inevitably end-up in the middle of their parents' dispute.
RSA 461-A:5 provides:
Except as provided in paragraph III, in the making of any order relative to decision-making responsibility, there shall be a presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interest of minor children:
- Where the parents have agreed to an award of joint decision-making responsibility or so agree in open court at a hearing for the purpose of determining parental rights and responsibilities for the minor children of the marriage. If the court declines to enter an order awarding joint decision-making responsibility, the court shall state in its decision the reasons for the denial.
- Upon the application of either parent for joint decision-making responsibility, in which case it may be awarded at the discretion of the court. For the purpose of assisting the court in making a determination whether an award of joint decision-making responsibility is appropriate under this section, the court may appoint a guardian ad litem to represent the interests of the children according to the provisions of RSA 461-A:16. If the court declines to enter an order awarding joint decision-making responsibility, the court shall state in its decision the reasons for the denial.
- Where the court finds that abuse as defined in RSA 173-B:1, I has occurred, the court shall consider such abuse as harmful to children and as evidence in determining whether joint decision-making responsibility is appropriate. In such cases, the court shall make orders for the allocation of parental rights and responsibilities that best protect the children or the abused spouse or both. If joint decision-making responsibility is granted despite evidence of abuse, the court shall provide written findings to support the order.
In New Hampshire, residential responsibility refers to a parent's responsibility to provide a home for their children. RSA-461-A:1 (VII).
Residential responsibility can be joint. This is when parents have equal or approximately equal time with their children. Joint residential responsibility works best when the parents live in close proximity to one another.
Residential responsibility can be primary. Primary residential responsibility means that a child lives primarily with one parent. If, for example, a child spends the school week with Mom and alternates weekends with Dad, the Mom can be said to have primary residential responsibility.What is a Parenting Plan?
A parenting plan is a written document describing each parent's rights and responsibilities. RSA-461-A:1 (V). A parenting plan is often described as the plan the parents will follow in raising their children.
In New Hampshire the Courts utilize a standard form document called a Parenting Plan. Click here for a Parenting Plan form.
The Parenting Plan can be tailored to the specific-issues in your case. At a minimum, all parenting plan must specify:
- Decision-making responsibility and residential responsibility
- Information sharing and access, including telephone and electronic access
- Legal residence of the child for school attendance
- Parenting schedule which address, holidays, births and vacations and weekend time
- Transportation and exchange of the child
- Relocation of the parents
- Procedure for review and adjustment
- Methods for resolving future disputes
I. In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under RSA 173-B, the parents shall develop and file with the court a parenting plan to be included in the court's decree. If the parents are unable to develop a parenting plan, the court may develop it. In developing a parenting plan under this section, the court shall consider only the best interests of the child as provided under RSA 461-A:6 and the safety of the parties.
II. A parenting plan may include provisions relative to:
(a) Decision-making responsibility and residential responsibility.
(b) Information sharing and access, including telephone and electronic access.
(c) Legal residence of a child for school attendance.
(d) Parenting schedule, including:
- Holiday, birthday, and vacation planning.
- Weekends, including holidays, and school in-service days preceding or following weekends.
(e) Transportation and exchange of the child.
(f) Relocation of parents.
(g) Procedure for review and adjustment of the plan.
(h) Methods for resolving disputes.
III. If the parties are insured and the parenting plan directs the parties to participate in counseling, the court shall give due consideration to selecting a counselor who accepts direct payment from the parties' health insurance carrier.
IV. If the parents have joint decision-making responsibility under RSA 461-A:5, the parenting plan shall include the legal residence of each parent unless the court finds that there is a history of domestic abuse or stalking or that including such information would not be in the best interest of the child. If the parenting plan includes a parent's residence, the parent shall be responsible for promptly notifying the court and the other parent of any change in residence. The failure to provide such information may result in a finding of contempt of court.What is a Parenting Schedule?
A parenting schedule is the schedule of when the child is in the care of each parent. RSA-461-A:1 (VI). Schedules vary depending on what works best fopr the parents and the child. Types of schedules include, but are not limited to:
- Alternating weeks
- Spending the week with one parent and alternating week-ends
- Split week between parents (M-W with Mom and W-F with Dad) and alternating weekends
- School-year with one parent and school vacations and summer with other parent.
No. The law in New Hampshire provides that that there shall be no preference based upon the gender of the parent or the child, and there shall be no preference based upon the financial resources of the parent.Best Interest of the Child
In ordering a Parenting Plan, the court is guided by the best interest of the child standard. That means that the Court must consider certain factors in making its decision. Those factors include, but are not limited to:
- The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance
- The ability of each parent to meet the child's basic needs
- The quality of the child's adjustment to the child's school and community and the potential effect of any change
- The ability and disposition of each parent to foster a positive relationship with the other parent and the support of each parent for the child's contact with the other parent
- The relationship of the child with any other person who may significantly affect the child
- The ability of the parents to communicate and cooperate with each other, and make joint decisions concerning the children
- Any evidence of abuse
In determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors:
(a) The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
(b) The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
(c) The child's developmental needs and the ability of each parent to meet them, both in the present and in the future.
(d) The quality of the child's adjustment to the child's school and community and the potential effect of any change.
(e) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.
(f) The support of each parent for the child's contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent.
(g) The support of each parent for the child's relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent.
(h) The relationship of the child with any other person who may significantly affect the child.
(i) The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent.
(j) Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
(k) 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.
(l) Any other additional factors the court deems relevant.
If you are going through a divorce or break-up and have children, contact the NH family law attorneys at Tenn And Tenn PA who can help answer any questions you have regarding parental rights and responsibilities.