Family Law

How do Judges Decide Child Custody in New Hampshire

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how New Hampshire judges decide custody cases.

Child Custody and Visitation in New Hampshire

If you’re going through a divorce or a break-up, you and your kids are probably struggling to accept “the new normal.” But it’s time to pick yourself up and learn how to navigate the legal process. New Hampshire has a comprehensive body of family law, and it’s important for you to understand the pieces that apply to your case.

What’s the Difference Between Legal and Physical Custody?

You often hear people casually talking about “full custody,” but that term doesn’t exist in the law. It’s just a phrase people use in social conversations. Instead, there are different types of custody, and each has a different meaning.

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life. For example, parents with legal custody are involved in the child’s education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical care.
  • Sole custody means that one parent has complete physical or legal custody, or possibly both. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with the them. On the other hand, a parent who has sole legal custody has the authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful.
  • Joint custody is shared, meaning that both parents have nearly equal rights and responsibilities in child-rearing. If a judge orders joint physical custody, the children typically spend a lot of time at each parent’s residence, according to a set schedule. If a judge orders joint legal custody, both parents have an equal voice in making important decisions about the child life.

One of the most important things to know about joint custody is that the parents have to be willing and able to cooperate with each other or a judge will not award joint custody. If there’s an extensive history of serious arguments and problems, there won’t be a joint custody award.

When parents share joint legal custody, they’re obligated to share information about the child’s health, education, and welfare with each other. They also have to make important decisions together. They have to be forthcoming with each other and be willing to cooperate, or joint legal custody won’t work.

New Jersey law favors joint legal custody because it’s presumed that empowering both parents to work together on medical, educational, religious, and cultural matters in the child’s life will inure to the child’s benefit. If the court decides not to award joint legal custody, it has to explain the reasons for that decision. For example, if one parent committed documented acts of domestic violence against the other parent, the judge probably won’t allow joint custody.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically (e.g., summer breaks or weekend visits), call them on the telephone, or speak through real-time video call apps like Skype or FaceTime.

Both parents are governed by the visitation schedule the judge imposes, although the parent with sole physical custody can always agree to give the non-custodial parent more visitation time. If that happens, it’s wise to document the situation by asking the court to adjust the old schedule to match the new one.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court will structure its visitation order to make sure the kids are protected, probably by ordering visitation be supervised by a family member or someone else who can make sure the child is safe. Supervised visitation usually occurs at a neutral place, like a restaurant or park.

It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Never try to prevent your ex from exercising court-ordered visitation. If you do, you can be subject to sanctions (judicial punishment). However, if you believe your child would be immediately or physically endangered by visiting with the other parent, you should immediately contact a family attorney for advice and contact your Clerk of Court or local law library to find out what legal procedures you’ll have to set in motion to protect your child.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

The court will always encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be unhappy with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

When parents agree to joint legal custody, they have to appear in court and put their agreement on the record. Normally the court will accept this agreement, but it does have the authority to reject it if the evidence suggests that joint custody will harm the child.

You should always consult with an experienced family law attorney when you have a child custody problem, but if you’re self-represented or you just want to learn more, the New Hampshire Judicial Branch’s Self-Help Center has a variety of helpful information about custody.

How Do Judges Decide Custody Issues?

When the court makes a custody decision, it can’t consider the sex of the parents or child. It also can’t consider the parents’ financial status. Instead, judges make custody and visitation decisions based solely on what’s best for the child. To do that, the court will look at all of the following factors:

  • the child’s relationship with each parent
  • each parent’s ability to provide the child with nurturing, love, affection, and guidance
  • each parent’s ability to ensure that the child gets proper nutrition, housing, clothing, medical care, and a safe environment
  • the child’s developmental needs, and each parent’s ability to meet them now and in the future
  • how well the child is adjusted to school and community and how any change would affect the child
  • each parent’s ability and willingness to build a positive relationship with the child, including any necessary physical, written, and telephone contact with the other parent that’s needed to facilitate that relationship
  • whether contact with each parent is likely to harm the child or the other parent
  • whether each parent will allow and encourage the child to have contact with the other parent
  • whether each parent supports the child’s relationship with the other parent
  • the child’s relationship with anyone else who has a significant impact on the child’s life
  • whether the parents have the ability to communicate, cooperate, and make joint decisions about the child’s life
  • any history of abuse or violence, and the impact that it had on the child
  • if a parent is in jail or state prison, the reason for the crime, the length of the sentence, and any unique issues that might arise because of the incarceration, and
  • any other information not present in this list that is relevant to the parent-child relationship.

If your child is old enough to offer a mature and rational opinion, the judge may also choose to give weight to the child’s wishes.

If your case is complex and hotly contested, the court may appoint a guardian ad litem (an expert in child welfare whose job is to advocate for your kids) to act as an expert witness. The guardian will be neutral toward you and your ex, but will conduct a thorough investigation, including home and school visits and interviews. When the investigation is complete, the guardian gives the judge a report with custody and visitation recommendations. The judge will take the recommendations into account, but still reach an independent legal conclusion.

At the conclusion of the case, the judge will write a detailed order with findings about each custody factor based on the evidence presented at trial. The order will explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify (or change) the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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