CUSTODY

HOW DOES THE COURT DETERMINE CUSTODY?

According to New Hampshire RSA 458:17, the Superior Court has the authority to determine custody of children whose parents are in the process of obtaining a divorce. Under its equitable powers, or the power to make orders that are fair, the Superior Court also determines custody between unmarried parents.

Unmarried parents generally do not go to court to obtain custody orders unless they are no longer living together or no longer getting along. Until there are custody orders, each parent has the same rights to the children as the other. When there are problems, sometimes one parent threatens to take the children away from the other parent. If there are problems, it is a good idea to ask the court for custody orders. The following applies to custody issues for divorce, and custody disputes between unmarried parents.

(NOTE: In 1996, a pilot project known as a Family Division Court began in Rockingham and Grafton Counties. In this project, families are assigned to one family division judge or marital master. These justices have been specially trained to find prompt and fair resolution to family issues (RSA 152:1). The Family Courts were granted jurisdiction over the city or towns formerly covered by the District Courts in both Rockingham and Grafton Counties. Records dated before July 1, 1996, which had been held at the District Courts were relocated to the appropriate Family Courts (RSA 152:7). The program is intended to promote public interest and better serve you as you seek judicial resolution to such family matters as divorce, child custody and visitation, child support, legal separation, paternity, domestic violence, juvenile delinquency, child abuse and neglect, and other child-related issues.)

WHAT ARE THE DIFFERENT CUSTODIAL AWARDS MADE BY THE COURT?

• LEGAL CUSTODY

Joint Legal Custody vs. Sole Legal Custody

There is a presumption in New Hampshire that both parents of children will share joint legal custody. This means that both parents have the same right to make medical and educational decisions for the children, to have access to the children's records, and to be fully involved in the children's upbringing. The parents are presumed to work together in making the major decisions of their children's lives.

One parent can, however, challenge this. Sometimes it might not make sense to share responsibility for all major decisions. In these cases, the court can award sole legal custody to one parent. This means one parent will be given the power to make the major decisions affecting the couple's children. This is often the case with unmarried parents, if one parent is not really interested in being involved, or in cases where spousal or child abuse are factors in challenging joint legal custody (RSA 458-17, IIc). Be sure to tell your lawyer or the court if either of these exist in your case. Communication might also be a factor in determining legal custody. Since joint legal custody implies that parents are sharing the decision-making process of raising their children, not being able to talk to each other can sometimes persuade the court to award sole legal custody to one parent. The other parent might still be awarded to have access to certain records, but not to have veto power over decisions of the custodial parent.

• PHYSICAL CUSTODY

Primary vs. Shared

It used to be that one parent had custody and the other had visitation rights. With both parents being more involved, that is not always true anymore. Sometimes, you might consider shared physical custody, where the children spend roughly equal time with each parent. Sometimes one parent spends more time with the children during the school year, while the other spends more time with the children during summers and vacations. You can work out the schedule.

With many families, often a more "traditional" approach is best for the children. One parent, often referred to as the custodial parent, is granted primary physical custody. The other parent, referred to as the non-custodial parent, receives residual physical custodial rights, formerly called visitation.

When deciding custody, the court will consider several factors, such as:

• Who was the primary caretaker during the marriage?
• If both parents worked outside the home, which one changed work schedules for the children's illnesses or other child-related reasons?
• Who has been the primary caretaker since the parties separated?
• Is there a protective order?
• What is the distance between the parents' residences?
• What about school, both transportation and quality of systems?
• What about after school activities? Is one parent more involved or supportive of these activities?
• Can these children be flexible, or do they need a "home base?"
• How is the communication between the parents?

If the children will be traveling back and forth a lot, parents need to talk about things like homework assignments, permission slips, illnesses and medications, etc. If that is not likely to work well, it might be better for one parent to have primary custody.

WHAT IF DOMESTIC VIOLENCE WAS A FACTOR IN YOUR RELATIONSHIP?

At the time custody is being determined, the abusive spouse or partner frequently makes a point of showing that he or she has "never hurt" the children, even if they were present while he or she hurt the other parent. Even if the child was never physically hurt, domestic violence can still affect the child. If abuse was present during your relationship, be sure to make the court aware of times when the child was involved in those incidents of abuse. These incidents can include times when:

• the child was in the room while your spouse was assaulting you;
• something being thrown at you almost hit your child; and
• you were holding your child while being screamed at, harassed, or assaulted.

When abuse has occurred in a relationship, the law requires domestic violence to be taken into consideration before making a custody decision.

WHAT EFFECT DOES CHILD ABUSE HAVE ON PHYSICAL CUSTODY DETERMINATION?

There might be a District Court proceeding pending if a case of physical or sexual abuse of a child was filed and happened before the parents separated or filed for divorce or custody. Although it is not clear under New Hampshire law, most Superior Courts will go along with custody and visitation orders of the District Court. There may also be criminal proceedings if the County Attorney has gone forward with prosecution. This could be true if there has been assault of the partner. Bail requirements and other restrictions are important when negotiating custody. Be sure to tell the court if you are aware of any other pending cases involving either you or your partner in any other court.

Sexual and physical abuse of children under 18 is considered child abuse. This is a crime in New Hampshire. If you have reason to suspect abuse, you are required by law to report it to the Division of Children, Youth and Families (1-800-894-5533, In New Hampshire; 603-271-6556, Outside New Hampshire) (RSA 169-C:29).

WHAT IF ONE PARENT WANTS TO MOVE?

It is usually better to determine who has primary custody before moving, especially if the children will be moving. In this case, the other parent is less likely to challenge the move while talking about care of the children. Often, one parent moves to be near family and supportive friends during a divorce or custody action. Sometimes, one parent decides to move because they find a better job. This will have an impact on the children. If the primary caretaker moves, the other parent will want reasonable rights to see the children. It is better to resolve this when there is no immediate crisis and people can think about it in a more rational manner.

WHAT IF YOU MOVE WHILE CUSTODY IS PENDING?

If there is a custody claim pending, you should comply with the Section 9 notice requirements of the Uniform Child Custody Jurisdiction Act (UCCJA). This law states that you must file:

• your current address;
• every address where your child has lived for the past five years; and
• the names and current addresses of every person with whom your child has resided during the past five years.

You must file this information under oath. A failure to report this information could mean that no other jurisdiction will honor and enforce your custody order. Without UCCJA jurisdiction, the court may dismiss your case and regard any order as void and unenforceable.

Filing this information, in accordance with UCCJA requirements, puts your current address on public record. This means that your partner has access to finding out your new location. There are ways, if your partner is abusive, to protect your confidentiality while still fulfilling UCCJA requirements.

HOW CAN YOU PROTECT YOUR CONFIDENTIAL LOCATION AND STILL COMPLY WITH UCCJA REQUIREMENTS?

While the Section 9 requirements of UCCJA means you have to list your address with the court where your custody order is pending, you have many options to protect your confidentiality. By filing an ex parte motion, you can ask the court to:

• waive the filing of the Section 9 affidavit which requires your current address, and those of you and your child spanning the last five years because of the violence;
• permit you to file the Section 9 affidavit without including any at-risk addresses or names, but with an affidavit attached stating:
• the length of time that your child has lived in each state;
• what the history of violence has been; and
• that disclosure would endanger you, another party or your child;
• thereby showing that disclosure would not be in the child's best interest;
• allow you to comply with the section 9 affidavit through an "in-camera" proceeding away from your abuser and his or her attorney; or
• order that the court seal, impound, or sequester the affidavit so that it will only be available to the court.

These steps may not completely protect your confidentiality. But they could be helpful.

WHAT IF YOU NEED A SUPERVISOR FOR VISITATION?

New Hampshire has a number of visitation centers and child care resource programs able to assist families who need assistance with custody arrangements. Services to the various programs include:

• supervised on-site visitation;
• semi-supervised on-site visitation;
• a neutral drop-off/pick up site monitored by staff;
• referrals to child care centers throughout the state;
• referrals to community resources and services; and
• court advocacy.

For a list of visitation centers throughout the state, see Child Care Programs/Visitation Centers in the resource section.

APPOINTMENT OF A GUARDIAN AD LITEM (GAL)

WHAT IS THE ROLE OF THE GUARDIAN AD LITEM (GAL)?

Each parent shares the rights and responsibility for the care, custody, companionship and support of their children. Parents share decisions affecting schooling, religious training, medical treatment, discipline, and emotional development. When the children cannot be with both parents at once, parents need to apply to the court for help in enforcing these rights. When the parents are not living together, these rights and responsibilities are all shared, but often the parents cannot agree on how.

When parents are separated, the parental rights must be divided fairly. Since the children require a stable home, parents should address where the children will stay, and will have to decide upon visitation, support, education, medical treatment, and other related issues. When parents cannot agree, the courts will do several things. The most common is in a divorce action brought at the Superior Court or, in Rockingham and Grafton Counties, at the Family Division. Where the parents are unmarried and cannot agree, either parent may file a petition for determination of custody and support, also at the Superior Court level or in the Family Division.

When the court is making its decision, it will decide what is in the best interest of the children. If both parents agree they will file an agreement, known as a stipulation. If parents cannot agree, the court may appoint a person, known as a guardian ad litem (GAL), who will determine what is in the best interest of the children.

A GAL must gather enough information on the children's history and current circumstances, and the concerns of the children. To do this, the GAL speaks with both parents and meets with and observes the children. The GAL may speak with school representatives, therapists, supervised visitation centers, doctors, friends, relatives and others to get information about the children, parenting and family dynamics.

GALs should undertake all actions on behalf of a child in a timely and effective manner. While acting in the best interests of a child, a GAL should be impartial, open-minded and fair. If asked, a GAL will file a report with the court. The report may include recommendations based on many factors. The GAL's observations concerning who has been the primary caretaker, what are the respective home environments, and what time each parent can spend with the children, may be included. After the report, the parents have a chance to try to reach an agreement with the help of the GAL. If they cannot, the court will hear evidence from both parents to help in reaching a final decision.

Finally, parental rights can be limited in certain circumstances. In the District Court or Family Division, limits can occur if there are charges of abuse or neglect, or a domestic violence petition.

HOW MUCH INPUT DOES A CHILD HAVE IN CUSTODY DECISIONS?

A GAL may be required to reach a separate decision on what is in the best interest of a child. In making such a decision, a GAL may consider what the child wants. Children cannot "choose" where to live. As children get older, they are better able to say what they want. The court or GAL may consider the children's comments. It is not fair to ask a child to choose a parent. It is important to let the children know that while their comments are important, the court will be making the decision as to what is best for them.

HOW DOES SOMEONE BECOME A GAL?

To become a guardian ad litem (GAL), a person must submit a written application to the administrative judge of the Superior Court, District and Municipal Court or Probate Court. Applicants approved for certification must complete 20 hours of education and training in a program designed to enable them to perform their duties as officers of the court. A GAL serves at the pleasure of the court.

Psychologists, social workers, attorneys, clergy, homemakers and others serve as GALs in New Hampshire.

DO YOU HAVE TO PAY FOR A GAL?

Yes, you do have to pay a GAL. If parents have enough money, they are required to pay the GAL for his or her time. If a parent or parents cannot afford to pay a GAL, there is a court fund that will pay for the GAL. The maximum that the court fund will pay a GAL is $1,000.

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