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Parenting Rights and Responsibilities  


      As was mentioned in the previous article, some of the most important matters to be determined in a divorce are issues related to the parties’ children. In broad terms, these are usually referred to as “parental rights and responsibilities.” As was also mentioned in the preceding article, New Hampshire courts also make determinations of parenting rights and responsibilities outside of the context of a divorce, for parents who have never been married and find themselves separating.


            Just the usage of the term “parental rights and responsibilities” might be new or different to some reading this article. Many people are more accustomed to hearing a discussion of “legal and physical custody” and “visitation.” As you may be aware, the New Hampshire law regarding parenting matters has undergone a dramatic change in recent years. The entire New Hampshire statutory chapter related to what we used to call “child custody” was overhauled, and replaced with a new law addressing “Parental Rights and Responsibilities.”


More than just terminology


            As part of the new statute, the legal vocabulary has changed. For example, instead of “legal custody,” we talk about “decision making and information sharing” and instead of visitation, we speak of “parenting time.” But the changes to the law go far beyond simple vocabulary. The current New Hampshire law is designed to place an emphasis on “co-parenting” …. and having each parent involved in the child’s life to the greatest extent possible. To help better understand the intent of the state legislature in creating this new legislation, let’s take a look at the “statement of purpose” in the law itself:



Male grade school student at blackboard


 461-A:2 Statement of Purpose.

                I. Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to:

      (a) Support frequent and continuing contact between each child and both parents.

      (b) Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced.

      (c) Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect.

      (d) Grant parents and courts the widest discretion in developing a parenting plan.

      (e) Consider both the best interests of the child in light of the factors listed in RSA 461-A:6 and the safety of the parties in developing a parenting plan.


Residential Rights and Responsibilities and Parenting Time …. formerly known as “Physical Custody” and “Visitation.” 

            Under the current statute, courts look at residential rights and responsibilities and parenting time, with the intent being to place less of an emphasis on treating the child as an asset to be “awarded” (as in a “custody award”), and more of an emphasis on child-centered co-parenting.

              As noted in the statutory “statement of purpose” quoted above, the courts in general will attempt to support frequent contact between each child and both parents, and encourage parents to share in the “rights and responsibilities of raising their children” after the separation or divorce.
            Does this mean that the courts will automatically assume that the child should be with each parent fifty percent of the time, in every case? No – it does not mean that at all. Under the new statute – just as under the old – the courts must act in the best interest of the children in that particular case. The law does not set up a presumption as to what kind of parenting arrangement is presumed to be “usually” best for the average child, because as we all know – there is no such thing as an average child or an average family! Rather, this is a very fact-driven determination, which must be made on a case by case basis. In some cases, the court may decide that equal or approximately equal periods of residential responsibility are in fact in the child’s best interest. In other words, the child lives roughly half the time with Mom, and roughly half the time with Dad – or a similar arrangement. But it is also true that in many other cases, the court finds it in the child’s best interest for one parent to provide “primary residential responsibility” for the children for the majority of the time, with the other parent having certain periods of “parenting time.” In some situations, where the safety of the children is in question, it may be necessary for the court to order one parent’s parenting time to be supervised or monitored – by a professional, the other parent, or another family member or friend.
            Perhaps the best way to sum up this area of the law is that there is no such thing as “normal” and no one size fits all solution. New Hampshire law calls for the decisions to be made on a case by case basis, with the best interests of the child as the guiding light at all times.  
 Decision Making and Information Sharing
            This is similar to what used to be called “legal custody.” In a divorce or parenting matter, an order must be established setting forth how major decisions will be made regarding the children. Both parents may share joint decision-making, or in certain circumstances, one parent may be awarded sole decision making.
            The court must also determine what rights and responsibilities the parents have to share information regarding the children, including for example, access to medical records and school records. 

Father & son with freshly cut Christmas tree


Parenting Plans

              Prior to the new “parenting” statute, determinations regarding child custody were usually lumped in with the financial and property matters in the Divorce Decree or Stipulation. Now, in every divorce or parenting actions where minor children are involved, a separate Parenting Plan is generated, either by Court Order or by agreement of the parties. The Parenting Plan does just what the name suggests … it sets out the “plan” for how the divorced or separated parties are supposed to handle parenting matters.          
     The Plan usually addresses the following:
  •     How residential responsibility is to be shared;
  •     The schedule of parenting time which will be the norm or “default” for this case;
  •     Whether the parties can adjust that parenting schedule by agreement, and if so, how they do that;
  •     How holidays and vacation times with the children are to be shared;
  •     Communication between parent and child – rules and procedures for one parent contacting the child by phone or email while the child is with the other parent;
  •     Transportation of the children to/from parenting time;
  •     Participation and attendance by parents at school-related events;
  •     What happens if the parents have a disagreement about the Plan;
  •     What happens if one parent wants to move away.
  These are just some of the issues and details which can be covered in a parenting plan.  In general, the courts hope that the more detail is included in the Parenting Plan, the less likely the parties are to have disputes or confusion down the road.

  What is the procedure or "process" which is used in deciding parenting matters?   

            As noted in the previous introductory article on Divorce and Family Law, there are a number of different paths which a divorce or parenting matter can take. Having a fully contested, fully litigated parenting matter is not the only way for a case to be resolved. There are a number of tools available to divorcing or separating parents, who wish to resolve their legal disputes in a less stressful, more amicable fashion. These include negotiation, mediation, and a new kind of family law referred to as “Collaborative Law.”

Coming soon to this website …  an article regarding Family Law Process and Procedure – the Court System and Alternatives to Litigation.

Please check back later for updates!