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 the following situations:

• both parents agree to joint decision-making responsibility; or 
• either parent asks for joint decision-making responsibility and in 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(II), (V), (IX)
² N.H. Rev. Stat. § 461-A:5(I), (II)
³ N.H. Rev. Stat. § 461-A:5(III)

A parenting plan may include terms regarding the following:

• decision-making responsibility and residential responsibility;
• information sharing and access, including telephone and electronic access;
• the legal residence of the child for school attendance;
• a parenting schedule that includes:
  • holiday, birthday, and vacation planning;
  • weekends, including holidays, and other days off from school;
  • transportation and exchange of the child;
  • relocation of parents;
  • the procedure that the parents will follow for review and adjustment of the plan; and
  • methods for resolving disputes.¹

If the parents have joint decision-making responsibility, the parenting plan must include the legal residence of each parent unless the judge determines that:

• there is a history of domestic abuse or stalking; or
• including such information would not be in the best interest of the child.²

If the parenting plan includes a parent’s residence, the parent must immediately notify the court and the other parent of any change in address. The failure to provide such information could lead to the parent being held in contempt of court.²

¹ N.H. Rev. Stat. § 461-A:4(II)
² N.H. Rev. Stat. § 461-A:4(IV)

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.

3. 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.

4. 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.

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)

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)

If the other parent violates the court-ordered parenting plan, you can file a motion for contempt or enforcement of the order. The court must review your motion within 30 days.¹

¹ N.H. Rev. Stat. § 461-A:4-a

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.

• New Hampshire Legal Aid provides two online booklets:
  • Parenting and the New Hampshire Courts - Going to Court Without an Attorney and
  • Residential Responsibility.
• The New Hampshire Judicial Branch website has information on:
  • How to start, calculate, and modify child support
  • Information on parenting plans and divorce, including information on modifying an order and information on how to file a parenting petition
  • How to file a parenting petition
  • How to change an order
  • How to enforce a court order.

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.