Legal Information: New Hampshire

New Hampshire Custody

Laws current as of
April 1, 2022

What types of parental rights and responsibilities are there?

When deciding custody matters, the judge will determine how to divide the parental rights and responsibilities that each parent will have concerning the child. The judge can award either parent the following:

  • decision-making responsibility, which is the responsibility to make decisions for specific issues, or it could apply to all decisions for the child; and
  • residential responsibility, which is a parent’s responsibility to provide a home for the child.1

The judge is supposed to assume that joint decision-making responsibility is in the best interest of minor children in either of the following situations:

  • both parents agree to joint decision-making responsibility;
  • either parent asks for joint decision-making responsibility and in the judge’s discretion, the judge thinks that it is appropriate.2

However, if the judge determines that abuse has occurred, the judge must consider such abuse as being harmful to the child and must consider the abuse as evidence in determining whether joint decision-making responsibility is appropriate. The judge is supposed to make an order that best protects the child, the abused parent, or both.3

1 N.H. Rev. Stat. § 461-A:1(I), (IV), (VII)
2 N.H. Rev. Stat. § 461-A:5(I), (II)
3 N.H. Rev. Stat. § 461-A:5(III)

What is a parenting plan?

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. The parents can come up with the parenting plan together or if that’s not possible, the judge will create it. Within the parenting plan, there will be a detailed parenting schedule, which is the schedule of when the child is in the care of each parent. It will include when each parent has residential responsibility or non-residential parenting time. 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.”1

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

What are the usual steps when filing for custody?

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often times, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial. However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or your fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, although custody laws vary by state, the process usually looks similar to this:

  1. File for custody. Depending on the state, you may file 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 and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
    • If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
    • If you are a married parent who is not filing for divorce, you can file for custody on its own.
    • If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
  2. Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence on our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see What factors will a judge consider when deciding parental rights and responsibilities? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

  1. Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and to cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

  • communications between the parents can only be in writing;
  • all communications can only be related to the child; and
  • a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child as to avoid future conflicts.

  1. Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

  • A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
  • An appeal moves the case to a higher court and asks that court to review the lower court’s decision due a judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state.

You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

What factors will a judge consider when deciding parental rights and responsibilities?

When deciding parental rights and responsibilities, the judge must consider the following factors, while keeping in mind the best interests of the child:

  • the child’s wishes if the judge believes the child is of “sufficient maturity to make a sound judgment;”
  • the ability of each parent to provide the child with nurture, love, affection, and guidance;
  • the ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment;
  • the child’s developmental needs and the ability of each parent to meet them, both in the present and in the future;
  • 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;
  • 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;
  • the support of each parent for the child’s contact 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;
  • the support of each parent for the child’s relationship with the other parent, including whether contact is likely to result in harm to the child or to a parent;
  • the relationship of the child with any other person who may significantly affect the child;
  • 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;
  • 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;
  • the policy of the state regarding the determination of parental rights and responsibilities.
  • any evidence of abuse and the impact of the abuse on the child and on the relationship between the child and the abusing parent; Note: “Abuse” for these purposes, is defined as any of the following:
    • sexual abuse;
    • physical injury that was caused intentionally or by other than accidental means;
    • psychological injury that causes the child to show symptoms of emotional problems generally recognized to result from consistent mistreatment or neglect;
    • being subjected to human trafficking;
    • being subjected to female genital mutilation; or
    • any act of abuse explained in What is the legal definition of domestic violence in New Hampshire?; and
  • any other additional factors the judge things are relevant.1

The judge cannot give preference to one parent based on the sex of the child, the sex of a parent, or the financial resources of a parent.2

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

Will a child's preference be considered?

If the judge believes there is “clear and convincing evidence” that a child is mature enough to make a reasonable decision, the judge can take into consideration the child’s preference for where s/he wants to live. The judge should also consider anything that may have affected the child’s preference, including any improper influence from a parent or someone else.1 A child’s preference can also be a reason that a judge would agree to change (modify) a permanent parental rights and responsibilities order.2

1 N.H. Rev. Stat. § 461-A:6(II)
2 N.H. Rev. Stat. § 461-A:11(I)(e)

Can a parent who committed domestic violence, child abuse, or sexual assault get parental rights and responsibilities?

When deciding parental rights and responsibilities, the judge is supposed to consider:

  • any evidence of abuse;
  • the impact of the abuse on the child;
  • the impact of the abuse on the relationship between the child and the abusive parent.1

“Abuse” for these purposes, is defined as any of the following:

  • sexual abuse;
  • physical injury that was caused intentionally or by other than accidental means;
  • psychological injury that causes the child to show symptoms of emotional problems generally recognized to result from consistent mistreatment or neglect;
  • being subjected to human trafficking;
  • being subjected to female genital mutilation; or
  • any act of abuse explained in What is the legal definition of domestic violence in New Hampshire?2

Iif the judge determines that abuse has occurred, the judge must consider such abuse as being harmful to the child and must consider the abuse as evidence in determining whether joint decision-making responsibility is appropriate. The judge is supposed to make an order that best protects the child, the abused parent, or both.3

However, if a parent has been convicted of sexual assault or a court has found that the parent committed sexual abuse against any of his/her children or step-children, the judge can prohibit contact between the abusive parent and the victim of the abuse, as well as any sibling or step-sibling of the victim.4

Note: If you make a good faith allegation, supported by facts, that your child is the victim of physical abuse, neglect, or sexual abuse committed by the other parent and you take reasonable steps to protect your child or get treatment for him/her, you cannot lose parenting time or contact with your child based on your actions.5

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

Where can I find additional information about custody in New Hampshire?

We have provided links to information we hope you find helpful. WomensLaw.org has no relationship with these organizations and does not endorse their services or the accuracy of the content on their websites.

You can also find general information about custody – not specific to New Hampshire - on our general Custody page. The page includes a section about how to try to transfer your custody case to a new state where you are living so that you can modify the custody order from your new state.

If I move to a new state, can I transfer my child custody case there?

After a final custody order is issued, there may come a time when you and your children move to a different state. For information about how to request to transfer the custody case to a new state, please go to the Transferring a custody case to a different state section in our general Custody page. However, it’s important to keep in mind that you may likely first need to get permission from the court or from the other parent to move your children out of state. Please talk to a lawyer to make sure your plans to move don’t violate your custody order or your state’s parental kidnapping laws.

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