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Legal Information: New Hampshire

New Hampshire Custody

Laws current as of
February 10, 2020

Basic information about custody in New Hampshire.

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 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.