As part of every custody case, there will likely be a parenting plan put into place, which is a written plan describing each parent’s rights and responsibilities.¹ The parents can come up with the parenting plan together or, if that’s not possible, the judge will create it.²

Within the parenting plan, there will be a detailed parenting schedule. This schedule will include the days of the week and hours of the day that each parent will have the child with them. The parenting schedule can be agreed to by the parents or ordered by the judge.³ It will include when the child will live with or spend non-residential parenting time with each parent. It is not supposed to use the phrase that the child “resides primarily” with one parent or that one parent has “primary residential responsibility” or “custody” or is the “primary residential parent.”⁴ 

For more information, go to What is usually included in a parenting plan?

¹ N.H. Rev. Stat. § 461-A:1(VI)
¹ N.H. Rev. Stat. § 461-A:4(I)
¹ N.H. Rev. Stat. § 461-A:1(VII)
¹ N.H. Rev. Stat. § 461-A:4(VI)

Mediation is a process where both parents will meet to try to come to an agreement on how to divide up custody and visitation, without leaving the decision to the judge. A neutral third party, generally called a mediator, meets with the parents to help them reach an agreement.

The goal of mediation is to help you and the other parent work together to lower conflict, focus on what is best for your children, and make decisions that both of you feel good about. The mediation process can also reduce the number of court hearings and make it more likely that parents will follow court orders.¹

To learn more about how mediation works in parental rights and responsibilities (custody) cases, see What happens in mediation?, Who gets sent to mediation?, and If I am a domestic violence victim, do I have to do mediation?

¹ N.H. Rev. Stat. § 461-A:7(I)

The judge can award reasonable visitation rights to a child’s step-parent if the judge believes that visitation is in the best interest of the child.¹ If a grandparent petitions the court for visitation, the judge must consider the following factors when making this determination:

1. whether such visitation would be in the best interest of the child;
2. whether such visitation would interfere with any parent-child relationship or with a parent’s authority over the child;
3. the nature of the relationship between the grandparent and the child, including but not limited to:
4. the frequency of contact;
5. whether the child has lived with the grandparent and for how long;  
6. whether there is reasonable cause to believe that the child’s physical and emotional health would be endangered by having visitation or by not having visitation;
7. the nature of the relationship between the grandparent and the child’s parent, including whether there is friction and the effect such friction would have on the child;
8. the circumstances that resulted in the absence of a nuclear family, whether divorce, death, relinquishment or termination of parental rights, or other cause;
9. the recommendation regarding visitation made by any guardian ad litem appointed for the child;
10. any preference or wishes expressed by the child; and
11. any other factors that the judge thinks are appropriate or relevant to the petition for visitation.²

¹ N.H. Rev. Stat. § 461-A:6(V)
² N.H. Rev. Stat. § 461-A:13(II)

When deciding parental rights and responsibilities, the judge must be guided by the best interests of the child and keep in mind the following factors:

1. the child’s wishes, if the judge believes the child is of “sufficient maturity to make a sound judgment”;
2. the ability of each parent to provide the child with nurturing, love, affection, and guidance;
3. the ability of each parent to ensure that the child receives adequate food, clothing, shelter, medical care, and a safe environment;
4. the child’s developmental needs and the ability of each parent to meet them, both now and in the future;
5. the quality of the child’s adjustment to his/her school and community, and the potential effect that any change would have on the child;
6. the ability and willingness of each parent to encourage 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;
7. the support of each parent for the child’s contact and relationship 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;
8. the relationship of the child with any other person who may significantly affect the child;
9. the ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the child, including whether contact is likely to result in harm to the child or to a parent;
10. if a parent is incarcerated, the reason for it, and the length of the incarceration, and any unique issues that arise as a result of incarceration;
11. the state’s policy on how parental rights and responsibilities are to be determined;¹
12. any evidence of abuse, including the impact of the abuse on the child and the relationship between the child and the abusing parent; Note: Here, “abuse” is defined as any of the following:
    • sexual abuse;
    • physical injury, unless it was caused by accident;
    • psychological injury that causes the child to show symptoms of emotional problems generally understood to come from consistent mistreatment or neglect;
    • human trafficking;
    • female genital mutilation; or
    • any act of abuse explained in What is the legal definition of domestic violence in New Hampshire?; ² and
13. any other factors the judge thinks are relevant.¹ ​

The judge cannot give preference to one parent based on the sex of the child, the sex of a parent, or a parent’s financial resources.³ 

On #11, above, the policy of the state says that both parents should be involved in a child’s life in a stable and meaningful way unless it is not in the best interest of the child. This should be done by using all of the following principles when creating a parenting plan:

1. encouraging:
   
   1. approximately equal parenting time for both parents;
   2. the sharing of the rights and responsibilities of raising the child between the parents after separation or divorce;
   3. the parents to create their own parenting plan with the help of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect;
2. giving parents and judges the widest freedom;
3. considering the best interests of the child using the factors listed above in #1-13; and
4. considering the safety of the parents.⁴

If a judge decides that approximately equal parenting time is not appropriate, s/he must include the reasons why in the order.⁵ If the judge is deciding parental rights and responsibilities due to the death of a parent or guardian, the judge should consider the contact the child has had with the surviving parent as well as the wishes of the deceased parent, as included in his/her will.⁶

¹ N.H. Rev. Stat. § 461-A:6(I), (II)
² N.H. Rev. Stat. §§ 169-C:3(II); 173-B:1(I)³ N.H. Rev. Stat. § 461-A:6(III)
⁴ N.H. Rev. Stat. § 461-A:2
⁵ N.H. Rev. Stat. § 461-A:6(I-a)
⁶ N.H. Rev. Stat. § 461-A:6(III-a)

If you and the other parent disagree about your rights, responsibilities, or your child’s grandparents’ visitation rights—including requests to change past orders—the court can require you to go to mediation. If mediation is ordered, it will cover all related issues, like child support, dividing property, and alimony, unless the court says otherwise.¹

You or the other parent may also ask the judge for mediation. This could be done at the first hearing after a divorce or parenting case is filed. If your request is approved, you will receive a notice appointing a mediator to your case. The notice will state the date, time, and means of mediation, and what you must bring to mediation.²

¹ N.H. Rev. Stat. § 461-A:7(III)
² See the New Hampshire Judicial Branch website

The mediator cannot make a decision or force you or the other parent to agree on a solution. The mediator’s job is to focus your attention on your needs and interests, not on who is right or wrong. Any agreement is completely voluntary.¹

If you reach an agreement on all or some of the disputed issues during mediation, the agreement will be written down, signed by both of you and submitted to the court as soon as possible.² The judge can approve your agreement and turn it into a court order. If you do not reach an agreement, you still have the right to have the judge resolve your dispute after a trial.³

¹ N.H. Rev. Stat. § 461-A:7(II)
² N.H. Rev. Stat. § 461-A:7(VIII)
³ N.H. Rev. Stat. § 461-A:7(II)

Before you file for custody, which New Hampshire calls “parental rights and responsibilities,” you may consider making an out-of-court agreement with the other parent. Parents often have to be flexible about custody and visitation for the child’s benefit. Parents who fight for sole parental rights and responsibilities (sole custody) may be in court for months or even years. And they may still end up with some sort of shared parental rights and responsibilities (joint custody) order after a settlement or trial.

However, sometimes, parents need to file for custody because they can’t agree with the other parent. You may also need to file for custody if the other parent is keeping the child from you or if you fear for the child’s well-being. If the other parent has committed domestic violence against you, s/he may try to keep power and control over you through the child. When there has been domestic violence, joint custody usually isn’t a good option due to the power difference in the relationship between the parents.

Keep in mind that custody court cases can take a long time. Going through this process can be emotionally and financially draining, so please do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to support you and help you plan for your safety while in court.

You can watch our Custody, Visitation, and Child Support videos, where we explain legal concepts and the court process, to learn more about this topic. You can also read more about safety issues on the Safety Issues section of our Court System Basics page. 

In the following sections, we will discuss the steps that generally take place during the custody process. For precise information on how this process works in your county and state, you may want to contact a local lawyer.

The legal paperwork that starts a parental rights and responsibilities (custody) case is called a parenting petition. You may file your parenting petition in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives.

The exact petition you file may depend on whether or not you are married to the child’s other parent, as you can see in the chart below.

Sometimes, non-parents can also file for custody or visitation rights. To find out about filing for visitation as a non-parent, go to Can a grandparent or step-parent get visitation? or talk to a lawyer.

The parenting petition forms you need will be available at your local courthouse. Some courts may have a court assistance officer or other staff who can help you complete the forms you need to file. However, court staff cannot advise or represent you. It’s best to get help from a lawyer to make sure that you have all of the forms and fill them out correctly. You can use our New Hampshire Courthouse Locations, Download Court Forms, and Finding a Lawyer pages to find your county’s court, the forms, and local lawyers.

Depending on what’s going on with the child and the other parent, you may be able to ask for a temporary parental rights and responsibilities order when you file your petition. That may require appearing in front of the judge. However, in most cases, you will just file the petition, and then the clerk will tell you a date to return to court a few weeks or months later. If your child’s well-being is in danger, make sure to mention this on the petition and notify local authorities as needed. It may also be possible to file for a restraining order, also called a protective order, and get temporary custody as part of the protective order.

After you file, the papers will need to be given to the other parent. This is called “service of process,” and there are specific rules on how to do it. You may want to ask the clerk for the instructions on how the other party must be served in your state.

There are two different ways that you might be able to get a final parental rights and responsibilities (custody) order – by coming to an agreement, or by going to trial.

Reach an agreement: In some situations, you and the other parent might be able to reach an agreement (settlement) about your child’s living arrangements. You may write up this agreement in a parenting plan. If the judge approves, your agreement could become the final custody order. This could allow you to keep some level of control over the outcome and help you avoid the stress and uncertainty of a trial. You and the other parent could negotiate an agreement by yourselves, with the help of your attorneys, or through mediation.

Go to trial: If you can’t agree or if it’s unsafe for you to deal with the other parent directly, the next step will be a trial. At that point, the judge will make all the decisions about custody based on what s/he believes is in your child’s best interests. During a trial, you or your attorney can present evidence and cross-examine the other parent. The other parent can do the same. If you are representing yourself, you can learn more about how to do this in our At the Hearing section.

Es posible que en algún momento se mude con sus hijos/as del estado donde se dio la orden final de custodia. Para información sobre cómo solicitar que se transfiera el caso de custodia a un nuevo estado, por favor vaya a Transferir un caso de custodia a un estado diferente, en nuestra página general de Custodia. Sin embargo, es importante tener en cuenta que es probable que necesite obtener permiso de la corte o de el/la otro/a padre/madre para mudarse de estado. Por favor hable con un/a abogado/a para asegurarse que sus planes de mudanza no violen su orden de custodia o las leyes de secuestro parental de su estado.

If a parent is being deployed and has to be separated from her/his child because of it, the court cannot permanently change the existing custody or visitation arrangement until at least 90 days after the deployment ends. The only exception is if the deployed parent agrees to the change.¹

However, if either parent asks, the court can temporarily change custody or visitation while the parent is deployed or mobilized when the military parent:

• has primary custody, shared custody, or visitation rights under a court order;
• has been notified that they will be deployed or mobilized soon; and
• will be unable to care for or spend time with their child.²

Requests to change custody or visitation because of deployment should be heard as quickly as possible and treated as a top priority by the judge.³ If the judge thinks it is in the best interest of the child, a temporary order may require the parent who is not deploying to:

• make sure the child is available to the deploying parent when the deploying parent has time off;
• help arrange ways for the deploying parent to stay in touch with the child, like phone calls, emails, or other contact during the deployment; and
• not use changes in deployment dates to stop contact between the deploying parent and child.⁴

¹ N.H. Rev. Stat. § 458-E:2
² N.H. Rev. Stat. § 458-E:3(I)
³ N.H. Rev. Stat. § 458-E:3(II)
⁴ N.H. Rev. Stat. § 458-E:3(VI)

If it’s hard for a parent to attend a hearing because of a deployment, the judge can let that parent give testimony and present evidence by phone or video. The parent asking for this must give enough notice and have a good reason.¹

¹ N.H. Rev. Stat. § 458-E:5