Custodia

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)