In 2005 the New Hampshire legislature substantially amended the divorce and custody statutes in New Hampshire. The terms physical custody and legal custody are no longer used; instead, the statute (RSA 461-A) uses the terms parental rights and responsibilities. RSA 461-A mandates that in formulating a parenting plan there is a presumption that both parents will have “joint decision making responsibility” for the children. This means both parents have the right to make major decisions regarding the child, including education, medical and religious decisions. However, if domestic abuse has occurred, the court may consider the finding of abuse in determining whether one party should be awarded sole decision making responsibility.
RSA 461-A left open a question as to which court must make a finding of abuse before the presumption of joint decision making responsibility can be overridden. In the case of Mannion and Mannion (March, 2007) the New Hampshire Supreme Court answered that question.
In Manion, the wife obtained a domestic violence order from the Derry District Court. She then filed for divorce in the Portsmouth Family Division. At the final divorce hearing the Portsmouth Family Division determined that no domestic violence had occurred. The court went on to award the husband sole decision making responsibility.
The wife appealed arguing that the Portsmouth Family Division should have considered the finding by the Derry District Court of domestic violence against the husband and awarded her sole decision making responsibility. The Supreme Court disagreed and held that RSA Chapter 461-A requires the court that makes the finding of domestic abuse be the same one that makes the award of sole decision making responsibility. Therefore, under the statute, the Portsmouth Family Division did not need to consider the finding of domestic abuse by the Derry District Court when it made its decision regarding decision making responsibility.
Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].