"IS IT A Perreault case?" I shudder to think about the number of times I've asked, or been asked, that question. A recent 50-state survey published by Matthew Bender indicates that New Hampshire stands alone as having the most restrictive standard for modification of physical custody, post-divorce.

The 1974 case Perreault v. Cook is the sieve through which the facts are filtered. While none of us wishes the custody battle to persist throughout the child's minority, Perreault is a tribute to the status quo that some find onerous.

Under Perreault, "the custody award should not be disturbed unless the moving party demonstrates that the circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility the child will be harmed if he continues to live under the present arrangement." There is no balancing of relative harms under Perreault, strictly applied: "The inquiry must necessarily concentrate on the circumstances of the family in which the child has been placed...." So facts that would certainly be relevant in a best interests examination are kept out, absent a cross-petition.

The Legislature codified existing law regarding modification of custody at RSA 458:17, V, effective Jan. 1, 1998. Included were the Perreault standard, the Butterick mature minor standard, and added policy language about repeated, intentional and unwarranted interference with custody. Last session, the Legislature added language on the special circumstance of relocation of the principal residence of a child at RSA 458:23-a.

This session, I am sponsoring a bill that would do two things: 1.) update the law to include the holding in Pasquale v. Paulson, regarding modification of joint physical custody; and 2.) amend the Perreault provision. This is an attempt to lessen the very restrictive nature of Perreault while retaining a significant burden on the moving party in order to discourage repeated litigation and constant upheaval in the child's life.

I'm looking for the Bar's assistance in crafting language that we can live with to replace the Perreault standard in code. Naturally, Perreault remains viable and available as grounds for modification in case law, regardless.

The bill, as introduced, will use the modification standard from the state of Washington, RCS 26.09.260 (2)(c). The Washington standard acknowledges keeping the status quo as beneficial, but does not give status quo as much weight as does Perreault. The new language adopting the state of Washington standard reads: "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 in environment is outweighed by the advantage of a change to the child..."

One suggestion I've received is to address educational neglect in the revised standard. I think this is a good idea, and I'm sure there are other good ideas that should be addressed as well. At the initial hearing, I will introduce amended language, as necessary.

Please provide your feedback to me, Marge Hallyburton, by e-mail at Marge@hideaway.mv.com or give me a call at (603) 654-4295. Thanks in advance.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer