Effective October 1, New Hampshire divorce and custody law will undergo substantial change with the enactment of new statutory chapter, the "Parental Rights and Responsibility" act (RSA 461-A). This chapter includes a purpose clause that states: "Children do best when both parents have a stable and meaningful involvement in their lives." It says that the policy of the state is "to support frequent and continuing contact between each child and both parents" and to "encourage parents to share in the rights and responsibilities of raising their children."

The legislation was the principal bill proposed by the Task Force on Family Law. In addition to the policy statements, the new statute eliminates the term "custody" in divorce and unwed cases, requires parenting plans, allows the court to order mediation, and codifies the "best interest" criteria.

The Task Force on Family Law’s two-year study led to the conclusion that "custody," "physical custody," "legal custody," and similar terms were divisive and encouraged litigation. RSA 461-A replaces the traditional terms with "parental rights and responsibilities," "residential responsibility," and "decision-making responsibility." The goal is to promote co-parenting with both parents actively involved in their child’s life.

The Task Force’s report called for a change in thinking from a win-lose fight to parental autonomy in making decisions for their children.

How will this statute affect practitioners?

This new statute will require lawyers to change what they tell their clients about the divorce process when it involves children, beginning at the initial appointment. Additionally, the statutory changes will require courts and practitioners to change many standard forms. A "Parenting Plan" includes what is now in the court’s Standard Paragraphs, numbers 2 and 3 (decision-making and residential responsibility), but may include much more. The new statute lists the following additional topics:

a. Information sharing and access, including telephone and electronic access.

The parenting plan will be a separate document from the divorce agreement, incorporated by reference, as is done with the Uniform Support Order.

Court-referred mediation in cases with custody issues has been in RSA 458 for two years. While its inclusion has certainly increased the use of mediation, the current statutory language conditioning the referral on both parties agreeing has limited its use. Under the Parental Rights and Responsibility act, the court may order mediation in any parental rights and responsibilities case unless there has been a finding of domestic violence. In those cases, a referral to mediation will require the agreement of both parties.

If the parents are unable to develop a parenting plan, the court will do so, based on "best interest." RSA 461-A includes a checklist of 12 factors for the court’s use in deciding what is in the best interest of a child. These include the relationship of the child with each parent; the ability of each parent to provide the child with nurture, love, affection, and guidance; and the support of each parent for the child’s contact with the other parent.

All of the child-related provisions of RSA 458 are being moved to the new RSA 461-A. Other than the changes described above, the text of RSA 461-A is the same as the current RSA 458 text on children. Remaining in RSA 458 are all provisions about marital status, alimony, and property division.

The purpose of RSA 461-A is to put all the child-related text in one place, rather than scattered throughout a chapter that deals with other topics. It makes it easier for a parent, especially an unwed parent, to find the law about his or her situation. (Currently, custody law is in a chapter entitled "Annulment, Divorce and Separation.")

The NHBA•CLE Committee will be holding a CLE on the new statute on Sept. 14. Presenters will be: John Cameron, a Laconia lawyer who originated the parenting plan proposal in New Hampshire, Honey Hastings, an Amherst lawyer who drafted the Parental Rights and Responsibilities act, and Gina Apicelli, administrator of the Family Division. Both Cameron and Hastings were members of the Task Force on Family Law.

The final text of the Parental Rights and Responsibilities act is available at http://www.gencourt.state.nh.us/legislation/2005/HB0640.html. The Task Force Report, containing a number of other recommendations including both non-legislative and other legislative recommendations, can be found at http://www.nhbar.org/publications/newsroom.asp#family.

Honey Hastings is a family law attorney with offices in Amherst and Temple.

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