The Court determines parental rights and responsibilities based on what it believes to be the “best interests of the children.” There is no presumption that one spouse would be a better parent than the other simply because of gender or financial situation. The Court considers all relevant factors including the wishes of the parents, the wishes of the child; the relationship of the child with his parents, siblings and any other person who may significantly affect the child’s best interest; the child’s adjustment to home, school and community, and the mental and physical health of all individuals involved. If the child is old enough, the Court will also consider, but is not bound by, where the child wants to live. Sometimes the judge or marital master will meet privately with the children to determine their preference, and sometimes a Guardian Ad Litem will help determine the children’s preference. Under exceptional circumstances, the Court may consider the preference of a young child.
There are two types of parental rights and responsibilities, decision-making responsibilities and residential responsibilities.
Decision Making Responsibilities: Decision making responsibilities involve the role each parent will play in making decisions regarding the upbringing of the children. By law there is a presumption that joint decision-making responsibilities are in the best interests of minor children. This means that both parents will share decision-making responsibilities with the principal place of residence of the child usually being with one parent. Each parent, in addition to enjoying periods of care and control of the child, has an equal voice in the education, religious training, and medical care of the child.
Residential Responsibilities: Residential responsibilities involve the question of where the children will actually reside. The parent who has the children residing primarily with him or her also is responsible for making day-to-day decisions for the children, such as their bedtime, what they will have for dinner, etc. The parents, regardless of who has physical custody, still must make major decisions together. There are several forms of residential responsibilities, including
- Primary Residential Responsibilities: Formerly this was referred to as sole custody or full custody. This form of residential responsibility places the child’s primary residence with one parent, with the other parent enjoying parenting time.
- Joint Residential Responsibilities: Under this arrangement, the children may spend, for example, six months with one parent and six months with the other, or three months with one parent and nine months with the other. This arrangement is limited to unique situations that justify its use. Usually, there is no parenting time with the absent parent.
- Shared Residential Responsibilities: This form of residential responsibilities is an arrangement where the children essentially end up with two homes, and they spend approximately equal time at each. This type of residential responsibilities is as flexible as the parties want it to be. It is designed to share the time with the children, and neither parent really has the children for a “majority” of the time. Parenting time may be for one week at a time or for several days at a time.
MODIFICATION OF PARENTAL RIGHTS AND RESPONSIBILITIES
Until the child is emancipated, which in New Hampshire occurs when he or she marries, joins the armed services or reaches the age of eighteen, the Court has the power to modify parental rights and responsibilities. However, unless the parties are able to agree to a modification, the Court will not modify a Parenting Plan unless it can be shown that the child is in danger of either physical or mental harm or that one parent repeatedly, intentionally and unwarrantedly interferes in the residential responsibilities of the other.
The purpose of parenting time is for the child to enjoy the love, care, and attention of both parents. Parenting time is determined by the age and the needs of the child for a relationship with both parents. Other factors will also affect parenting time such as the distance between where the parents live and the work schedules of each parent.
If you and your spouse cannot agree on parenting time, the Court may specify parenting time, such as from 6:00 p.m. Friday to 6:00 p.m. Sunday, twice a month. After the divorce is final and as the child advances in years, the frequency and duration of parenting time may be extended.
The parent who does not have primary residential responsibilities should exercise parenting time in a reasonable manner. The Court has restricted parenting time when a parent has, for example, been habitually drinking during parenting time.
Parenting time and child support are separate issues, and the parent with primary residence responsibilities should not deny parenting time because of late or nonpayment of monthly support. We recommend you be liberal and understanding with parenting time, especially during the period of negotiations. You should not use your children as a weapon in the divorce. This will only hurt your children, and will not substantially improve your situation.
Kevin P. Rauseo is a former director at Hamblett & Kerrigan P.A. and has since been appointed as a Justice for the New Hampshire Circuit Court. Please feel free to contact another attorney at Hamblett & Kerrigan to discuss your legal issues.