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Bar News - April 23, 2004 New Law Eases Child Custody Modification By: Deborah A. Fauver Statute Effective In June NEW HAMPSHIRE will soon lose the distinction of having the toughest child custody modification standard in the nation with an amendment to RSA 458:17 V (a)(3) that takes effect June 4. Governor Craig Benson signed HB 121, which restates the burdens of proof set forth by the Perrault decision, into law on April 5. The balancing test set out by the new statutory language is "clearly an easier standard," according to Nashua family law practitioner Honey C. Hastings, despite the fact that the amendment also ups the moving party’s burden of proof to "clear and convincing." Whether the standard results in more frequent modifications remains to be seen. In the 30 years since the Supreme Court adopted the familiar proof-of-harm Perreault standard, the custody landscape has changed dramatically. Joint legal custody is now the presumed outcome, and joint physical custody has become more common. Often parents who would challenge an award of sole physical custody are willing to work with a joint physical custody arrangement, explains Hastings. New Hampshire began keeping track of joint physical custody in 1995; that year, 254 such arrangements were made. By 2002, the number had more than doubled, to 657. The second key change in HB 121 is a codification of In the Matter of Pasquale and Paulson, 146 N.H. 652 (2001), allowing courts to use the best-interests-of-the-child standard to modify a joint physical custody arrangement, if both parties agree that the original joint physical custody plan is not working. State Rep. Margaret Hallyburton (R-Mont Vernon) began work on HB 121 in late 2002, looking at modification standards from around the country to find language that "encourages stability for the children, but cures the Perreault problem of being nearly insurmountable for the noncustodial parent." The critical modification language came from a Washington state statute, which the New Hampshire Senate amplified by adding the clear-and-convincing burden of proof. The final version of the 458:17 V (a)(3) is: "If the court finds by clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental, or emotional health and that the advantage to the child of modifying a permanent custody order outweighs the harm likely to be caused by the change in environment;" "Perreault focused on the home where the child resides, and precluded a lot of evidence that should have come in on the petitioner’s home," according to Hallyburton, who recently retired from active practice as an attorney. "Even if the clear and convincing hurdle takes away some of the benefit of this statute, the language clearly spells out that you have to look at both homes." Hallyburton introduced the new language to readers of the Bar News in a Jan. 13, 2003 article, and reports that she has received a lot of positive feedback from practitioners around the state. The new statute will be the topic of discussion at the Bar’s Family Law Section meeting on April 28, 2:30-4:30 p.m., at the Bar Center in Concord. Hastings believes that the new standard is much more manageable than the Perreault standard, and commended Hallyburton’s efforts. But there is also concern that the new language will open the door to more upheaval. Breckie Hayes-Snow, a staff attorney at the Legal Advice and Referral Center, notes that even under the strict Perreault standard, there have been "a remarkable number of cases in which custody is contested over and over again—sometimes for decades." "I think that a problem with the [new] language is that it really doesn’t seem to take into consideration the impact of attachment on a child’s development," says Hayes-Snow. "Perreault did a fairly good job of stressing the importance of consistency and stability for the child, and I worry that this element will lose some of its importance under the revised standard." Hayes-Snow is also uneasy about comparing home environments, particularly from a low-income parent’s perspective. "That kind of evaluation should be resolved carefully and thoughtfully in the first instance and then great deference should be given to that initial decision when a motion to modify is filed," Hayes-Snow explains. "Under the new formula, the non-custodial, more affluent, and potentially represented party benefits from a side-by-side comparison of households and the attachment the child has formed to the custodial parent does not receive the deference it deserves." Practice Tips It may take years to see how the trial courts will interpret the new statute, according to Hastings. In the meantime, she notes that practitioners might want to look at Washington case law for some guidance. The Washington statute, RCW 26.09.260 (2)(c), allows modification upon a showing of substantial change in circumstances, and then upon a showing that: "The child’s present environment is detrimental to the child’s physical, mental, or emotional health and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child." The Northwest Justice Project, a Seattle-based not-for-profit organization providing civil legal service for low-income clients, rephrases the Washington standard as: "The place where the child is supposed to live under the current Parenting Plan is not safe for the child physically, mentally, or emotionally, and it would be more harmful to leave the child where he or she is than to move him or her to the other parent’s home." Mark Weiss, and attorney and chair of the Washington Bar Association Family Law Section, explains that the modification standard has been in place in the state for nearly 30 years, and has been relatively undisputed in that time. It does not include the clear-and-convincing language, which is only used in Washington marital law for issues of contempt, according to Weiss. But Washington’s sub-section (c) is part of a larger modification section, which is more comprehensive, and easily three times the length of the New Hampshire modification provisions. One additional provision of note is that a Washington court must hold a threshold hearing on a motion to modify, any time after the answer to the motion is filed, to determine whether the allegations warrant further action, Weiss says. Since the enactment of Washington’s 1988 Parenting Act, custody decrees have become known as "parenting plans," which have been redesigned to focus on the realities of parenting, rather than the legal status of "custody," according to one of the Act’s sponsors, who recapped the development of the still controversial Act in the November 2003 issue of the WSBA Bar News, available at www.wsba.org. Under the Act, statutory presumptions include: (1) parents should make joint decisions on major issues of education, non-emergency medical care, and religious upbringing; (2) custodial change is presumed to be harmful; (3) requiring a child to spend 50 percent of his time in each household is presumed to be harmful. Pasquale and Paulsen HB 121 is now Ch 8, Laws 2004. The Pasquale and Paulson portion of the bill, which will become RSA 458:17 V(a)(5) reads: "If the parties have substantially equal periods of physical custody and each asserts that the original joint custody arrangement is not working, the court may order a change in physical custody based on a finding that the change in custody is in the best interests of the child." According to Hastings, this new language leaves open the question, as did the court in Pasquale, of what standard the court would use in a case where only one parent asserts that the originally ordered joint physical custody is not working.
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