How Are Parental Rights Determined?

Divorcing parents often wonder how a court will make decisions about a parenting schedule.  Even parents who do not wish to litigate parenting issues can benefit from understanding the law that would be applied by a court.  In determining parental rights and responsibilities, including a schedule, New Hampshire courts are guided by the ‘best interest of the child’ standard.

When parents are unable to agree upon the allocation of parental rights and responsibilities, the court will make decisions for them.  There is a presumption that decision making rights will be shared absent a history of abuse.  A court’s decision about a parenting schedule will be based on the “best interests of the child,” as defined by RSA 461-A:6.  The factors evaluated by a court when determining the best interest of a child include the following:

  • the relationship of the child with each parent (to include an assessment of the current schedule and participation in activities);
  • 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;
  • the ability of each parent to provide a safe environment for the child;
  • 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 the child’s school and community and the potential effect of any change;
  • the ability and disposition of each parent to foster 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 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 children, including whether contact is likely to result in harm to the child or to a parent;
  • any evidence of abuse, the impact of the abuse on the child and an assessment of the relationship between the child and the abusing parent; and
  • any other additional factors the court deems relevant.

In the event that a mature minor child states a preference for residing in one home or the other, the court may consider this as well.  So long as the child’s preference is not the product of improper or undesirable influences, the court will grant significant weight to the child’s preference.  Whether a child is a mature minor is a question for the court to decide.  The court has significant latitude to make such a decision.  Typically mature minors are thirteen or older.  However, younger children have been considered mature minors in some cases.

Circumstances such as the sex of the child, sex of the parent, religion, race or financial resources of a parent are not appropriate considerations in determining the best interest of the child.  Instead, the court will conduct an unbiased review of the circumstances relating to the best interest of each child and then determine what schedule will serve the child’s best interest.

In some cases, a court will appoint a “guardian ad litem,” sometimes called a guardian or GAL, to investigate what schedule would be in the best interest of the child.  The guardian will speak and meet with each parent and the child.  The guardian will also contact other important collateral contacts, for example schools, therapists, grandparents, caretakers, parents of the child’s friends or others who could assist in the best interest determination.  Ultimately, a guardian ad litem will issue a report recommending a final parenting schedule.  Courts often give substantial deference to the findings of a guardian, but are not required to follow or defer to the guardian’s recommendations.

Schedules agreed upon by parents, rather than ordered by the court, are often very creative and specifically tailored to the needs of both the children and the parents.  Parents may develop any schedule that suits their needs by agreement.  The State of Arizona published a guide that is available online and can be a very useful resource for designing parenting schedules.  The guide contains fourteen potential schedules and outlines the advantages, disadvantages and other considerations relative to each.   Under ideal circumstances, parents will work together to design a parenting plan and schedule by agreement, as parents are in the best position to know what suits their needs and the needs of their children.  Parties are uniformly more satisfied with a schedule and parenting plan created by them, as opposed to one imposed upon them by a court.

If parents can cooperate and focus on the children rather than the emotional aspects of the divorce, they are in the best position to create their own schedule.  Parents may endeavor to reach an agreement on their own or with various forms of assistance from attorneys.  Parenting plans created by agreement result in more durable agreements and fewer post-divorce disputes.  Of course, courts are always available to decide such issues and, in some cases, it is necessary for the court to do so.  Nevertheless, if it is possible, an agreed-upon resolution will often result in a more unique, satisfactory and durable agreement.


About the Author: Margaret Kerouac

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