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Bar Journal - December 1, 1999

Custodial Rights in New Hampshire: History and Current Law



The word "custody" is derived from the Latin word for guarding or keeping.1 Webster's defines "custody" as protection, care, maintenance and tuition.2 At the end of the twentieth-century, we think of custody as an issue between divorcing or unwed parents. Historically, it has more frequently arisen in other contexts:

The death of a father, or both parents, the incompetence or financial inability of parents to care for their children, the birth of illegitimate children, the voluntary indenturing of children by their parents or the involuntary indenture of children with no competent parents, and the sale of slave children.3

The latter two types of cases no longer arise, and the others, except "incompetence,"4 rarely result in legal disputes concerning the custody of children. Several themes are seen in the historical evolution of custody:

  1. Children were viewed as economic assets until the nineteenth century.
  2. Poor children and children whose parents can support them are handled differently.
  3. Custody rules and the status of women are interdependent.
  4. The emphasis on biological parenthood is a recent development.5


Through colonial period

Under Roman law, a child was the property of his or her father. This absolute authority, patria potestas, included not only custody, but also the right to sell or even kill the child. Mothers had no custodial rights; a child had no rights as an individual. Emperor Constantine enacted the first laws protecting children, banning infanticide and selling children into slavery.6

Most commentators describe English common law as following the Roman model,7 treating children as property. However, one commentator has differed with this view, saying that "[c]hildren were not considered property under common law, as it has become fashionable to expound, but a child's labor was a valuable resource to parents and other custodial adults."8 No one disputes that mothers had no parental rights. In a much-cited 1809 case, a nursing child was returned to an abusive father because of his nearly absolute rights.9 "[A] mother, as such, is entitled to no power, but only to reverence and respect."10

English custody law changed radically in the nineteenth century, when both case law and statute provided that unfit fathers could lose custody.11 The trend began with a 1773 case holding that a father could lose his natural right to custody for failure to provide support or by educating his child against the laws of the state.12 Beginning in 1839 in England, Lord Talfourd's Act authorized the award of custody of children under the age of seven to the mother.13 English common law on child labor, custody following divorce or a parental death, and the treatment of orphans and out-of-wedlock children was carried intact to the American colonies.14

The multipurpose household was the primary colonial economic and social unit. Children of a New England household often included sons and daughters, apprentices and servants.15 In colonial America, children were economic assets. Custody disputes usually involved child labor, that is, apprenticeships, indentures, and primarily in the South, ownership of slave children. Both fathers and masters of indentured servants and apprentices had a right to child labor, but each had responsibility for education and moral training, as well as support. The New England father was empowered to bring a stubborn or rebellious child to the magistrates for punishment, which by statute could include death.16

A colonial mother had no legal rights to her children during the father's life and only restricted rights if he died. This lack of power was part of the legal impotence of married women who could not even own their premarital property.17 Adoption did not exist.18 Divorce was uncommon, although it was more frequent in the New England colonies than others.19

United States - The First 100 Years

During the first hundred years of the Republic, paternal control was no longer absolute. The father had priority over the mother but could lose his rights due to "unfitness" or a showing that parental custody was not in the child's best interests.20 The focus shifted from paternal rights, the child's interests and, concurrently, a preference for mothers as custodians.21

The colonial view of children as helping hands in a labor-scarce economy gave way to a romantic, emotional view of children, who were no longer legally akin to servants, under the complete control of their fathers or masters, but instead were deemed to have interests of their own. Increasingly, these interests became identified with the nurturing mother.22

During the first century of this country, the economy evolved from a self-sufficient, home-based economy involving all family members to an industrial system built primarily on adult men working outside the home to support the family. The changing role of women in society led to change in custody and other family law.

In private law the changing status of their mothers was the single most important factor contributing to the new consideration for children's needs, and to the corresponding changes in their legal status. The status of mothers was transformed by two conflicting historical movements: the cult of motherhood and the campaign for women's rights.23

Concurrent with these economic changes, what had been thirteen rather separate societies before the founding of the Republic evolved into an increasingly interconnected country with a new mass culture. Publications, especially the development of women's magazines, played a significant role in this development.24 While during the nineteenth century the majority of Americans continued to live in rural areas, the culture as presented in popular periodicals became increasingly urban.25 This new culture, idealizing mothers and the nurturing nature of women, began to be reflected in legal decisions.26

Two related themes favored women in the nineteenth century: "maternal preference" and "tender years." The concept of the "tender years doctrine" is the presumption that young27 children should be in the care of their mothers (absent unfitness). It originated in an 1830 Maryland case:

While the father was the rightful and legal guardian of his minor children, it would violate the laws of nature to snatch an infant from an affectionate mother and place it in the coarse hands of the father.28

Maternal preference extended the presumption of maternal custody to all children, regardless of age.

The new idealized view of women was reflected in a United States Supreme Court decision upholding the view that women should not be admitted to the bar:

The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interests and views which belong, or should belong, to the family institution is repugnant to the ideas of a woman adopting a distinct and independent career from that of her husband. . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the creator.29


The legal concept of "best interest" as the criteria in custody cases appeared in late nineteenth and early twentieth centuries. Justice Cardozo explained this in a New York case:

The Chancellor in exercising his jurisdiction upon petition [sic] does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against anyone. He acts as parens patriae to what is best for the interests of the child.30

The effect of tender years, maternal preference, and best interest was to reverse the historical pattern in custody cases. By the 1920s, mothers received custody in most cases. 31

Societal change accelerated in the last thirty years of the twentieth century and was reflected in divorce law. The 1970s saw major changes in family law including the introduction of "no-fault" divorce and a move away from maternal preference.32 By 1982, most states had either eliminated the doctrine or restricted it to use as a tie breaker when the parents were otherwise equally qualified.33 As one court stated, "The simple fact of being a mother does not, by itself, indicate a capacity or willingness to render a quality of care different from that which the father can provide."

In the late twentieth century, custody is usually decided based on an individual analysis of each family, rather than relying on a sex-based presumption.34 Several approaches or "tests" have been proposed to provide objective standards for these decisions. "Least detrimental alternative" (LDA) is a legal standard or procedure advocated by a group of experts in 1973.35 LDA is based on the concept of the "psychological parent," the person to whom the child is most closely attached emotionally.36 The standard states that the permanent custody award should be made quickly, and to the psychological parent. This person should be sole legal and physical custodian, with the other parent having no legally enforceable visitation rights.37

Many courts used the "psychological parent" concept to choose between parents or reject a joint physical custody arrangement,38 without adopting the "one-parent- in-complete control" component of the LDA approach.39 LDA has been criticized as putting too much emphasis on continuity and stability. Further, other experts state that children can form a psychological attachment to both parents.40

Two standards are "joint custody" and "primary caretaker preference."41 "Joint custody" in some form was adopted by twenty-three states between 1975 and 1984.42 It has two elements, legal and physical custody. "Joint custody," means that legal custody is shared while physical custody may or may not be. The child has the advantage of continued association with both parents. One commentator calls the move for joint legal custody relatively noncontroversial, providing at least the appearance of an egalitarian standard.43 Another custody option is split custody, in which each parent is awarded sole legal or physical custody of one or more of the children. Split custody is usually reserved for extraordinary circumstances, as most courts are hesitant to separate siblings.44

"Primary caretaker" is a gender neutral custody test that evolved in the 1970s. It says that custody should go to the person who has performed a substantial majority of the caregiving tasks that involve intimate interaction with the child.45 While the "primary caretaker" and the "psychological parent" may be the same person in a given family, these are distinct concepts. The first is based on hands-on parenting and the second on a psychological bond.

The Uniform Marriage and Divorce Act (UMDA) was promulgated in 1970 and revised in the 1970s. While not adopted in New Hampshire, it may have influenced recent statutory changes.46 The Act eliminates fault grounds for divorce, a change the New Hampshire legislature has refused to make.47 Evidence concerning the other parent as custodian is limited to that directly affecting the relationship with the child. Permanent custody is to be resolved quickly, by an expeditious hearing. Custody changes are made more difficult and are prohibited within two years of the order, unless the child is endangered. The UMDA includes the best interests standard, under which the court considers all relevant factors, including:

  1. The wishes of the child's parent or parents as to his custody.
  2. The wishes of the child as to his custodian.
  3. The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests.
  4. The child's adjustment to his home, school, and community.
  5. The mental and physical health of all individuals involved. 48

The twentieth century saw the constitutionalization of family law.49 The United States Supreme Court has extended due process and equal protection to families. The right of parents to "bring up children" is essential to the pursuit of happiness.50 "A parent's interest in the 'companionship' of his or her children is entitled to a 'momentum of respect' lacking when appeal is made to liberties which derive merely from shifting economic conditions."51 The state may not impose an irrefutable presumption that unmarried fathers are unfit.52 Termination of parental rights requires proof by clear and convincing evidence.53 Some experts predict that constitutional rights will become even more important in custody cases. 54

At the end of the twentieth century, few families are untouched by custody disputes. Even "intact families" are likely to have a cousin, a niece or nephew, or a grandchild who is the subject of such a contest. Statistics show that half of the children born in 1990 will fall under the jurisdiction of a court in a case involving their custody.55

New Hampshire

The changing view of children in England and in the United States in the years 1770-1890 was reflected in New Hampshire as well. The New Hampshire divorce statute of 1791 includes fault grounds, property division, and alimony provisions that are similar to the current RSA chapter 458.56 But there is no mention of the custody or support of children. The only reference to children states that a divorce shall not "affect the legitimacy of any issue."57

In the early nineteenth century, the statutes authorized the "superior court of judicature sitting in any county" after the filing of a divorce action to issue temporary orders: ". . . respecting the custody and maintenance of the minor children of the parties as shall be deemed expedient and for the benefit of such children."58 In the final decree of divorce (or in an annulment), the court was directed to:

Make such further decree in relation to the maintenance, education and custody of the children as shall be most conducive to their benefit, and may order a reasonable provision for their support to be made by or out of the estate of the guilty party.59

This original language on custody was New Hampshire's custody statute through 1975 and continues to be the first provision of the now much-expanded custody and support provision.60 In the 1970s, RSA 458:17 was amended to allow consideration of the children's preference61 while explicitly prohibiting any preference in custody decisions based on the parent's sex.

In 1979, the legislature added language allowing orders for grandparental visitation, where it would be in the best interests of the children. Statutory revisions continued through the 1980s and 1990s. In 1981, a preference for joint legal custody was added, along with the requirement that where one parent is awarded physical custody, the other parent "shall be awarded physical custodial rights during all periods of the time heretofore referred to as visitation."62 In 1991, the courts were authorized to order visitation by stepparent, and the following language was inserted: "Nothing in this paragraph shall be construed to prohibit or require an award of custody to a stepparent or grandparent if the court determines that such an award is in the best interest of the child." 63 Beginning in 1996, "repeated, intentional, and unwarranted" custodial interference could justify a change in custody. 64#9;


Parental rights are fundamental and protected by the New Hampshire Constitution. Because parents have a fundamental liberty interest in raising and caring for their children, the loss of care and custody of a child "can be viewed as a sanction more severe than imprisonment."65 This right usually arises as an issue in termination of parental rights cases,66 but may also impact abuse and neglect cases67 and parental custody disputes.68 Where court action has resulted in a loss of custody, a writ of habeas corpus may be brought to determine the custody of a minor child.69

The parents are the natural guardians of a minor child.70 The parents are joint guardians whether they are living together or not. The only reasons to end the joint guardianship are the death of one of the parents, or the grant of a guardianship to another because the parents are unable to perform the trust.71 If the parents separate or divorce, the court may regulate the joint rights by awarding custody to one parent or apportioning the custodial time between them.72

Like property rights, legal rights over a child may be seen as a group of distinct rights.73 Guardianship is a larger "bundle of rights" than custody, and it includes custody; its authority is similar to or equivalent to parental rights. A guardian74 has the right to the care, custody, control, and education of the child. However, a nonparent guardian does not have the same responsibilities as a parent, most specifically the duty of support.

Historically, a guardian was appointed if the parents or the father were dead.75 From 1903 to1993, the guardianship statute limited the use of the guardianship of minors statute to certain public or charitable entities.76 The current statute allows a child 14 or over, or any person or authorized agency, to petition for a guardianship over that child.77 Two cases arising during the earlier version of the statute were the subject of Supreme Court decisions that explained guardianship and custody.

In re Guardianship of Raymond E.78

When the child was one year old, his mother sought help from a community organization. The organization supplied a volunteer who cared for the child for extended periods. The volunteer filed for guardianship, alleging that the mother was physically and mentally incapable of caring for the child. The mother defaulted and the probate court granted a guardianship to the volunteer. The Supreme Court reversed, as the volunteer was not one of the public or charitable entities that may seek a guardianship. Therefore lacked standing.79

McLaughlin v. Mullin80

This custody case between grandparents and father began while the restricted statutory language as to standing was in effect. From age two, the child and her mother lived with the maternal grandparents. Mother died when the child was three. When the child was ten, her father sought custody. As the grandparents did not fit any of the categories listed in the guardianship statute, they filed in Superior Court. The grandparents argued that the UCCJA (RSA 458-A) was one of the bases of Superior Court jurisdiction.

After a guardian ad litem investigation and a contested hearing, the Superior Court awarded custody to the grandparents. Father appealed, claiming lack of subject matter jurisdiction. The Supreme Court held that under the guardianship statute,81 when mother died, father became the child's sole guardian (and thus custodian) as a matter of law.82 Absent divorce proceedings, the Superior Court has no jurisdiction to appoint a custodian of a minor.83 The Supreme Court held that in this situation, the Probate Court was the appropriate court under the UCCJA to decide custody.84


One way that New Hampshire custody law differs from that of most other states is the clear distinction it makes between legal and physical custody. The statutory presumption of "joint custody" applies only to joint legal custody.85 Some New Hampshire practitioners and judicial officers use the terms "joint legal custody" and "shared physical custody" to distinguish the concepts. Joint legal custody includes all parental rights except physical custody.86 In awarding physical custody, the court considers what is "most conducive to the benefit of the children."87


The allocation of custody rights between parents is within the jurisdiction of the appropriate trial court. In some counties this is the Family Division, in all others, this is the Superior Court.88 Because of the statutory presumption of joint legal custody, this is the result in all but a handful of contested cases. If the trial court finds that joint legal custody is not in the best interest of the child, the court's discretion is likely to be upheld on appeal.89

Physical custody, like other key divorce decisions, is usually determined by the parties. Only ten percent of divorces are contested and in some of these cases, parents reach a partial agreement on custodial issues. Where physical custody is contested, the court generally makes an award that mirrors the division of parenting time before the separation.

In most aspects of custody, the standard of review on appeal is abuse of discretion. This gives the trier of fact broad discretion, and consequently the Supreme Court rarely rejects a trial court custody decision.90 Eight cases provide a basic understanding of New Hampshire law on custody determinations at the time of the divorce and later modifications: Butterick; Del Pozzo; Perreault v. Cook; Provencal; Richelson; Ross v. Gadwah; Stanley D. v. Deborah D.; and Sanborn.91 I will discuss each of these below, as well as other cases of interest.

Legal Custody

The custody statute provides that "in the making of any order relative to such custody there shall be a presumption, affecting the burden of proof, that joint legal custody is in the best interest of minor children."92 One factor overcomes the presumption that joint legal custody is in the best interest of the child: a finding of abuse as defined in RSA 173-B:1.93 In Anderson v. Anderson,94 an after-divorce modification case, the Supreme Court upheld another reason for sole legal custody, "bitter feelings" and "general animosity" between the parents.95 The Supreme Court appeared to support the master's decision in this case allowing health and school records to be shared, despite the grant of sole legal custody.

Del Pozzo96 Lists Custody Factors

Father appealed the award of custody of the children to mother. The Supreme Court noted that the facts of each case are "crucial," but set out a list of some factors that could be considered:

  1. Respective qualifications and fitness of the parties
  2. Their ability to control and direct the children
  3. The age, sex, and health of the children
  4. The environment of the proposed home and its likely influence on the children
  5. Effect of the "conduct of the parties. . . on the ability of the parents to promote the children's welfare"
  6. Desires of child as to who should have custody, weighted according to the child's age and ability to form intelligent judgment.97

The Court noted the "large measure of discretion" given the trial court in the custody cases. Here, the following factors supported the custody award: ages and sexes of the children, results of custody investigation, testimony on father's long work hours, and importance of preserving the family environment.98

The Guardian ad Litem

A guardian ad litem (GAL) is a person appointed by the court to represent the best interests of a minor child.99 Although the GAL is an officer of the court, the GAL is not counsel for the child, even if he or she is a lawyer. 100

The role of the guardian ad litem (GAL) in custody cases has diminished over the last ten years. In 1983, New Hampshire was one of only two states that required a GAL if custody was contested.101 The statutory language "shall appoint" was dropped in 1992.102 While GALs continue to be appointed in all but a small number of physical custody disputes, courts do not always do so where the issue is the custodial schedule or legal custody. Each appointment order103 now lists the areas of investigation and requires a "stipulation" between the parents and the GAL, spelling out procedural and financial details of the GAL's work. The recommendations of the GAL are usually given considerable weight by the court.

Richelson104 and the Role of the GAL

In the Richelson divorce, the court granted the mother physical custody subject to geographical restrictions. The court granted father extensive visitation rights. Shortly after the divorce, mother filed for reconsideration of the travel restrictions. Father also sought clarification. The master modified the visitation schedule slightly without hearing. The GAL reported that mother had engaged in a pattern of conduct designed to destroy the child's relationship with father, and that the child should remain in the first grade in Derry.

At a subsequent hearing the parents, GAL, and others testified. Thereafter, the master ordered the child moved from first grade to a readiness class in Salem and adjusted visitation in light of the school schedule.

Father appealed the visitation changes. He argued that the court's failure to rule on the request for a temporary hearing resulted in the child entering school in mother's district, making the final decision to maintain the custody order a foregone conclusion. Father and the GAL asserted that the court erred in ignoring the GAL recommendations, in light of the unique role of the GAL.

The Supreme Court noted that the case was protracted and acrimonious. As to the failure to rule on the motion for temporary order, it is "seemingly an abuse of discretion."105 However, father was not prejudiced by the error, since there were no hearing dates available.106

The Supreme Court found that GAL recommendations do not carry any greater presumptive weight than any other evidence. It stated, "The guardian ad litem is appointed to represent the best interests of the child, not to make a conclusive or presumptive determination; that is the province of the court or master."107

The Court ruled that the record and findings supported the master's decision on choice of school.108 At the end of the opinion, Judge Batchelder called on parties to use the court system to benefit their children instead of attempting to manipulate it to benefit themselves.109

Constitutional Rights and GAL: Provencal110 and Ross v. Gadwah111

In Provencal v. Provencal,112 the trial court awarded custody of the parties' fourteen-year-old daughter to her father. The GAL interviewed the parents and the child and recommended that father receive physical custody. The master allowed counsel to review the GAL report, but ordered them not to disclose the contents to their clients.113

The master awarded custody to the father. Mother appealed, claiming that her due process rights were violated. The Supreme Court found that a parent's interest in decisions regarding the custody and rearing of his or her children is a fundamental right which is protected by the due process provisions of the State and Federal Constitutions.114 This right includes the right to be informed of all adverse evidence, and to challenge such evidence by cross-examination and otherwise.115 The court's order regarding the GAL's report deprived mother of her right to challenge its contents. The trial court erred both in making the report unavailable to the parties and in preventing counsel from challenging it at trial.116 The Supreme Court noted that the GAL could leave out certain names to protect sources who wish to remain anonymous, subject to the court's determination of whether such names would be disclosed.117

Mother also challenged the GAL's procedure in interviewing the child without counsel for the parties present, but with her father present. The Supreme Court noted that if all interviews with children were in the presence of an attorney, the child would not confide in the GAL. Further, the child was interviewed numerous times without her father. Due process only requires that the parents be permitted to question the GAL about his or her investigatory methods. Since this was allowed here, there was no lack of due process.118

Ross v. Gadwah119 was an interlocutory appeal by the guardian ad litem, challenging an order that allowed counsel for other parties to review her notes regarding contact with persons other than the child. The guardian's report recommended a change in custody. Mother requested a deposition of the GAL and the opportunity to review her file. The trial court ordered that the file be turned over to counsel for parents, other than those portions protected by attorney-client privilege with the child.

The appeal raised two questions: (1) Whether counsel are entitled to inspect all GAL notes from conversations other than the child; (2) Whether due process requires parents' access to all information on which the GAL report is based, even if such information was obtained from the child. The Supreme Court's answer to both questions was "yes."120

The Supreme Court found that GALs serve a dual role: representing their ward and making an investigation to assist the court.121 The Court also held that the attorney-client privilege is incompatible with the GAL role as party to the case and expert witness. Finally, the court ruled that communications between a GAL and child are not confidential.122 Because due process requires that the parents have the opportunity to counter evidence presented to the court, none of the information the GAL receives is shielded from discovery by attorney-client privilege. 123

Sanborn124 and Religious Freedom

At the time of the Sanborn divorce, the main disputed issue was custody of the parties' children. During the marriage, the wife left the Methodist church and joined a sect whose beliefs include Saturday Sabbaths, disavowal of holidays such as Christmas and Easter, certain dietary restrictions, and belief in faith-healing.

Differences over religious observances formed the basis of the marital difference and were central to the custody disputes. The GAL recommended that father receive legal and physical custody, because the mother's religious beliefs interfered with her parenting.125

The divorce decree did not follow the GAL's recommendation and instead awarded mother legal and physical custody. The decree imposed certain restrictions on mother's freedom to raise the children according to her own beliefs and gave father visitation all day every Saturday. Shortly after the divorce, both parents sought modifications. The trial court then awarded joint legal custody and removed the explicit religious restrictions.126 Mother appealed the change in legal custody and the effect of the custodial schedule giving preference to the father's holidays over the mother's holidays.

On a constitutional level, the requirement that a state "shall make no laws respecting an establishment of religion"127 applies to custodial (visitation) decrees.128 Any state action, which is alleged to be in violation of the establishment clause must satisfy three criteria to pass constitutional muster:129

  1. The challenged action must have a secular purpose.
  2. Its principal or primary effect must neither advance nor inhibit religion.
  3. It must not foster excessive government entanglement with religion.

Removal of explicit references to religion is insufficient.130 The Supreme Court held that even as modified, the decree favored father's religion over mother's in two respects: he received visitations on his religious holidays; but there was no provision for mother's holidays, and father had the children every Saturday, thus preventing mother from taking the children to Sabbath services.131

The visitation decree did not satisfy the second part of the test, as its primary effect was to advance father's religion while inhibiting mother's. Religion must be considered solely as it relates to "the concerns and temporal welfare of the children."132 The visitation portions of the decree were vacated,133 but the legal custody change was upheld, since the best interest test had been met.

Stepparental Custody: Stanley D.134

At the time of the parties' marriage, wife had a daughter who had been born a year earlier. Stanley was not the daughter's father. The parties had one child of the marriage, a son two years younger than the premarital child. After six years of marriage, husband filed for divorce and requested custody of both children.

On reconsideration of the original decree, the master recommended that father receive custody of both children. The master found that this was in the best interests of the children since the husband had provided a more stable, secure, and beneficial home for the children.135

Wife appealed, challenging the Superior Court's authority to make a physical custody determination regarding a child who is neither a natural nor an adoptive child of both parties to the divorce.136 The Supreme Court found that the divorce statute's reference to "custody of the children"137 granted the appropriate authority and upheld the lower court.138

The Supreme Court explained that the divorce was not just the end of the marriage, but also the "dissolution of a family."139 The Court noted the following facts:

  1. Husband is the only father that daughter has known.
  2. The child is apparently unaware that husband is not her natural father.
  3. Husband treated daughter as his child; he loved and supported her.
  4. A psychological parent-child relationship was formed.
  5. The children were raised as siblings.

The Supreme Court held that when a family unit is formed by marriage, the court has the power and responsibility for all the children.140

The Supreme Court distinguished an award of custody to a stepparent at divorce from a termination of parental rights, finding that an award of physical custody to another does not terminate the parental rights of a parent denied custody.141 Thus, no proof of the natural parent's unfitness is required, rather the test is the best interest of the child.142 The Supreme Court held that it was within the trial court's discretion to award joint legal custody, even when the parties have requested sole legal custody.143


In the years between the initial "final" custody decision and each child reaching age 18, many parents seek to change the custody decree in some way. Adjustments to the custodial schedule are common, often prompted by changes in the children's needs.144 Changes in physical custody are often made by agreement, but contested cases occur regularly. With one small exception, the law on custody modification is all case law.145 Perreault,146 Butterick,147 and Sanborn148 are the three key cases.

Perreault:149 Key to Modification of Physical Custody

The Perreaults' divorce was based on an agreement that father have custody of the three children, with liberal visitation to mother. A few months later, mother's unilateral removal of the children from New Hampshire was resolved with an agreement to a specific schedule for her visitation.150

Four years later, mother sought a custody change because father was divorcing his second wife. After a Probation Department investigation, the master recommended that mother have custody. Father appealed, requesting that the Supreme Court require a parent seeking modification to prove a substantial and material change in circumstances.151

The Supreme Court noted that as the financial status of individuals is always fluctuating, support orders can be expected to change.152 By contrast, the focus of a custody case is the welfare of the child.153 Shuffling a child back and forth between parents "can destroy his sense of security, confuse his emotions, and greatly disrupt his growth as an individual."154

A court should not change custody unless 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."155 This 1974 holding, referred to as the Perreault standard, is the basic law on custody modification in New Hampshire.

Legal Custody Modification

In the post-divorce case Sanborn v. Sanborn (discussed above in the section on religious freedom), the trial court modified the original award from legal custody to mother to joint legal custody. The Supreme Court ruled that the proper standard for legal custody modification is best interest; not the Perreault156 standard. Further, the court may award joint legal custody even when neither party requests it.157

Butterick and Mature Minors

At the time of the Butterick divorce, the parties agreed to mother having physical custody of their two boys, then ages 7 and 10.158 The divorce agreement stated that modifications of physical custody would be governed by the "best interest" standard in Del Pozzo159 rather than "possibility of harm" test from Perreault v. Cook. 160

Four years after the parties' divorce, father sought physical custody of the two children. The Superior Court awarded him custody of the older child only.

The Supreme Court found the Perreault161 standard inadequate to guard the welfare and healthy psychological development of a child who has clearly reached the age of mature judgment and who expresses a strong desire to live with a different parent.162 While reaffirming the danger custody changes 163 pose to children, the Court said that common sense tells us that a child may be sufficiently mature to play a large part in deciding that a custody change is needed. If the court finds that a child is mature enough to make a sound judgment about his or her proper custody, it may give substantial weight to the child's custodial preference.164 The court must also consider whether the child's preference is based on "undesirable or improper influences."165

The Supreme Court refused to identify a particular age as the date of maturity, noting that children gain sufficient maturity at varying ages.166 While Butterick is a modification case, it is logical that its rulings on the role of a "mature minor" in a physical custody decision would apply to initial custody decisions. At the time of a divorce, "[t]he court may take into consideration any preference shown by said children" in determining what custody order is in their best interests.167 Butterick describes the weight to be afforded such preference, if the child is a "mature minor."


While there is no specific statute concerning custody decisions between unwed parents, both constitutional and practical reasons explain why these cases are decided under the same legal provisions as divorce cases and modifications of divorce decrees.168 Doubt about the Superior Court's jurisdiction169 to handle unwed cases was resolved in 1996.170 The authorization for the Family Division explicitly includes unwed cases.171

Locke v. Ladd172 discussed custody and visitation cases rights in unwed cases. The parties lived together before their child's birth and separated when she was three. Father filed to legitimate173 the child and award him visitation rights. Mother sought to deny him any visitation. The Supreme Court noted:

The problems resulting from the separation of the increasing number of unwed parents who have been living together for a period of time as man and wife are rapidly emerging. The legislature has seen fit as yet only to deal in partial fashion with these problems in the paternity statute,174 and has not provided the court with statutory authority to grant or control custody rights of unwed fathers who legitimate their children.175

Visitation rights are based on factors unrelated to marriage between unwed parents, and should not depend upon the existence of divorce proceedings where there never was a lawful marriage to be dissolved.176 The Supreme Court noted that as her unwed parents have lived together with the child one can assume that the child has "developed the same emotional needs for the companionship and support of her father [as a child born in wedlock]. Complete denial of visitation could have serious adverse effects upon the child." 177

The right of the child and the father to a continuing relationship is founded in the "natural, essential, and inherent rights" recognized in the N.H. Constitution.178 Such rights are constitutionally entitled to a remedy.179 The authority of the judiciary to provide a remedy guaranteed by the N.H. Constitution stems from the Constitution itself and is inherent in the very nature of the judicial function.180


Interstate Custody Cases

Interstate custody jurisdiction is governed by two statutes, the Uniform Child Custody Jurisdiction Act (UCCJA), enacted in New Hampshire as RSA 458-C,181 and the federal Parental Kidnapping Prevention Act (PKPA).182 These statutes determine which of two or more states183 may decide the custody of a child. The UCCJA was proposed in 1968 and now is law in all 50 states. The PKPA was passed in 1980. The purposes of the PKPA are to eliminate gaps in the UCCJA and require full faith and credit184 for custody decrees.

Like many statutes drafted by committee, RSA 458-A is difficult to read. It must be read and analyzed carefully and as a whole chapter. The best guide to RSA 458-A is section one, which lists the purposes of the chapter and how to construe it. The five primary purposes of the statute are: 185

  1. Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
  2. Promote cooperation with the courts of other states to the end that a custody judgment is rendered in that state which can best decide the case in the interest of the child;
  3. Assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his or her family have the closest connection and where significant evidence concerning the child's care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and his family have a close connection with another state;
  4. Discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
  5. Deter abductions and other unilateral moves of children undertaken to obtain formal custody awards.

The UCCJA spells out four alternate jurisdictional tests: home state, significant connection and substantial evidence, abandonment or emergency, and no other state has jurisdiction.186 "Home state" is the preferred jurisdictional basis.187 The home state is the state where the child has lived for the six months prior to the commencement of the action. If the child is removed from the state, and the other parent is still in the home state, it retains home state status for six months.188

"Significant connection" may justify jurisdiction under the following conditions:

  1. where to do so would be in the child's best interest;
  2. the child and at least one person claiming custody have a significant connection to New Hampshire; and
  3. there is substantial relevant evidence here.189

Other grounds for jurisdiction that apply only if the child is physically present are abandonment of the child and an emergency where it is necessary to assume jurisdiction to protect the child.190 The court may use the catch-all basis for jurisdiction when to do so is in the child's best interest, if no other state has jurisdiction under "home state" or other grounds or if another state has declined jurisdiction.191

Four New Hampshire Supreme Court cases have interpreted and applied the UCCJA: Brauch v. Shaw,192 Cartelli v. Martin,193 Mattleman v. Bander,194 and Clark v. Clarke.195 Additionally, the U.S. District Court for the District of New Hampshire has found that the purpose of the UCCJA is to prevent a parent from taking a child to another state to obtain a more favorable custody disposition.196

Mattleman v. Bandler involved an end-of-summer- vacation petition by father.197 The Supreme Court found that basing jurisdiction on "significant connections" developed in a two month vacation would undermine the purposes of the statute, including discouraging unilateral removal and relitigation. The case discusses at length the concepts of "significant connection" and "substantial evidence." The court quoted the UCCJA commissioner's notes warning about abuse of the significant connection provision:

"[P]erhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section 1." Those purposes include unilateral removal or retention of a child from his present home and preventing relitigation that shifts the child from state to state.198

Brauch v. Shaw199 stresses the importance of the purpose section of the UCCJA in interpreting the other provisions. The case concerned a school age child who had been in New Hampshire for more than nine months during which the defendant took no action for his return. The court found that New Hampshire might be the place that had the most information on the child, but went on to note that jurisdiction was not mandated in New Hampshire.200 The court remanded for further proceedings.

Cartelli v. Martin201 briefly discusses the "inconvenient forum" concept.202 The parties divorced in Connecticut and mother received custody. Later, father failed to return the children after they spent a summer in New Hampshire with him. Mother filed in New Hampshire to enforce the Connecticut order and father answered with a request for modification. Based on the pleadings, the Superior Court declined to exercise jurisdiction and ordered the child returned to mother. The Supreme Court upheld the order as an appropriate application of the inconvenient forum provision.203

Clarke v. Clarke204 concerned a six-year old boy, living in New Hampshire with his mother, following a New York divorce. The court declined jurisdiction and said, "New York is the only state in which the father, mother, and child lived together as a family, so that evidence is available there regarding parental attitudes."205

PKPA May Override UCCJA

Congress enacted the Parental Kidnapping Prevention Act (PKPA)206 in 1980 to curb the unlawful interstate movement of children between litigating family members. PKPA has five jurisdictional bases: four similar to the UCCJA and "continuing jurisdiction." Continuing jurisdiction allows a state to retain jurisdiction under the federal act so long as the child or a litigant resides in that state.

Under PKPA, "significant connection" and "substantial evidence" are available only if there is no home state. Emergency jurisdiction is available only in an emergency to protect a child subjected to or threatened with mistreatment or abuse. In an interstate case, the doctrine of federal preemption requires that any differences between the UCCJA and PKPA must be resolved in favor of PKPA.

International Custody Law

International custody jurisdiction is the subject of the Hague Convention on the Civil Aspects of International Child Abduction (Abduction Convention).207 This international treaty came into force in the United States on July 1, 1988. The International Child Abduction Remedies Act,208 a federal statute, became effective simultaneously. The Act implements the treaty and sets out the method of using the treaty in the United States. The Abduction Convention only applies to countries that have ratified the treaty.209

The federal law gives concurrent jurisdiction to state and federal courts in Abduction Convention cases.210 The Abduction Convention's principal objective is to assure and effect the prompt and safe return of an abducted or wrongfully retained child to the child's country of habitual residence.211 The Convention is similar to the UCCJA and PKPA in purpose and standards, although the terminology is somewhat different. For example, "habitual residence"212 is analogous to the UCCJA's "home state."

The Abduction Convention states:213

The removal or the retention of a child is to be considered wrongful where

  1. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
  2. At the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention.

However, a court is not required to return a child to his or her habitual residence if: (1) the petitioner was not exercising custodial rights at the time of removal or acquiesced in the removal;214 (2) the return would put the children at grave risk of harm;215 or impose upon them conditions contrary to our fundamental principles concerning the protection of human rights and fundamental freedoms.216

New Hampshire has one reported case decided under this international law, Currier v. Currier,217 a decision from the U.S. District Court for the District of New Hampshire. The German-born children were brought to New Hampshire by their father, a New Hampshire native. The court found that mother had been exercising lawful custodial rights when the children had been "wrongfully removed" from Germany, their "habitual residence."218 As none of the treaties exceptions applied, the children were ordered returned to Germany.219

Another Federal Statute: Native Americans

The rights of Native American tribal groups and children with Native American parentage are protected by the Indian Child Welfare Act (ICWA).220 The ICWA applies to a child who is a tribal member, is eligible for tribal membership, or is the child of a tribal member.221 A New Hampshire child could meet this definition based on a connection to an out-of-state tribe.222

The purpose of the ICWA was to overcome perceived cultural bias in state courts against Native Americans, shown in courts' use of dominant cultural criteria in adoption and custody decisions.223 The solution is a statutory preference for the use of tribal courts in these cases. If the case is heard in a state court, the tribe has a right to intervene.224


Our society's view of parents and children has changed substantially in the last two hundred years. These changes have been reflected in development of statutory and case law on custody. A legal historian has proposed "history lessons" that can inform policy decisions about custody:

  1. [T]he legal history of child custody is far more about the rights of mothers, fathers, and masters than it is about the welfare of children.225
  2. Biological parenthood has been emphasized without regard to the best interests of children. "A reevaluation of the custodial rights of non-biological parents is in order . . . ."226
  3. As family law reforms "are undertaken with little forethought of the effects on children," , they need adults who will advocate their interests in the reform process.227

Although in New Hampshire, the discretion to make custody orders for the "benefit"228 of the children involved has guided our courts for more than 150 years, in the last thirty years the Supreme Court and the legislature have elaborated on that concept. The recent developments include a presumption of joint legal custody, a prohibition of sexual bias in custody decisions, description of best interest factors, stepparent custody, grandparental rights, two tests for modifications, and clarification of the role of the GAL. It is likely that in the next thirty years we will see further statutory and case law changes.

The remnants of the view of children as chattel whose "possession" is "awarded" to one parent continue to be challenged, with psychologists, lawyers, and parents offering a myriad of views. This will lead to changes in the law on modification. Our increasingly mob, ile society demands a clearer legal standard for relocation questions from either the New Hampshire Supreme Court or the legislature. The question, "Who is the parent," comes up in both third-party and assisted reproduction cases and the law will need to provide answers. Finally, we may expect to hear more from the children, either directly or through their advocates.



Custodia, Webster's International Dictionary 559 (3d ed. 1976).




Mary Ann Mason, From Father's Property to Children's Rights xvi (Columbia University Press, 1994).


Likely the cases now referred to as "neglect" or "abuse."


Mason, supra at xvi.


Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases 1.02 (rev. 2nd ed. 1993).


The Judeo-Christian tradition was also patriarchal.


Mason, supra at xvi.


Haralambie, supra at 2 citing King v. DeManneville, 102 Eng. Rep. 1054 (KB 1804).


Id. at 2 (quoting William Blackstone, Commentaries on the Laws of England 452 (17th ed. 1830)).


Id. citing Shelley v. Westbrooke, 37 Eng. Rep. 850 (Ch. 1817). Shelley, a Romantic poet, lost custody following his wife's death because of atheism and immorality.


Id. at 3 (citing Blisset's Case, 98 Eng. Rep. 899 (KB 1773)).


Id. citing 2 & 3 Vict, ch 54 (1839). Another notable change was a sharp drop in the birthrate between 1800 and 1900; the average number of children born to white women dropped from 7.04 to 3.56 per mother between 1800 and 1900. Mason at 51.


Mason, supra at 3.


Id. at 5.


Id. at 11, citing 1679 N. H. Province Laws 13. Mason notes that there is no record of capital punishment being ordered under these laws.


Id. at 14.


Mason, supra at 24.


Like today, the records from Connecticut and Massachusetts show that women filed more frequently than men. Id. at 16. The custody laws likely deterred some women from seeking divorce. Id. at 17.






Id. at 50.


Id. at 51.


Including Godey's Ladies Book and Ladies Magazine; Id. at 52.


Id. at 52.


Id. at 52-53.


Various courts have defined the upper limit of "tender years" at ten or thirteen years.


Helm v. Francisus, 2 Bland ch 544, 563 (Md 1830).


Mason at 53, citing Bradwell v. Illinois, 83 US 130, 141, 21 L. 3d 443 (1873).


Robert Horowitz and Howard Davidson, Legal Rights of Children 6.04 (citing Finlay v. Finlay, 204 NY 429, 433 (1925)).


Haralambie, supra at 4, citing M. Roman & W. Haddad, The Disposable Parent 23 (1978).


The N.H. no-fault statute, RSA 458:7-a, effective August 29, 1971. 1971 N.H. Laws, 445:1.


Mason, supra at 123.


Haralambie, supra at 4.


Id. at 30.


Mason, supra at 170.


Id. at 168.


Id. at 170.


Id. at 169.


Isolina Ricci, Ph.D, Mom's House, Dad's House 6 (Collier Books, 1980).


Id. at 129.


Some states have adopted both as alternatives. N.H. adopted a presumption of joint legal custody in 1981, when paragraph II was added to RSA 458:17. 1981 N.H. Laws, 202:1.


Mason, supra at 132.


Haralambie, supra at 258.


Mason, supra at 132 (citing David Chambers, Rethinking the Substantive Rule for Custody Disputes in Divorce, Mich. L. Rev. 83:477 (1984)).


Specifically, the 1988 statutory changes concerning property division and alimony.


Although, effective January 2000, the fault ground of "abandonment" has been eliminated.


Mason, supra note 9, at 213.


Haralambie, supra at 6-7.


Id. citing Meyer v. Nebraska, 262 U.S. 390 (1923).


Id. citing Kovacs v. Cooper, 336 U.S. 77, 94 (1949).


Id. citing Stanley v. Illinois, 405 U.S. 645 ,658 (1972).


Id. citing Santosky v. Kramer, 455 U.S. 745, 779 (1982).


Haralambie, supra at 7.


Mason, supra at 122.


C. 94, passed February 1791. And be it further enacted that divorces from the Bond of matrimony shall be decreed in Case the parties are within the degrees aforesaid or either of them had a former Husband or Wife alive at the time of solemnizing such second marriage knowing them to be alive or for impotency, for adultery in either of the parties, or where either of the parties shall be absent for the space of three years together and shall not be heard of or where the Husband shall willingly absent himself from the Wife for the Space of three years together without making suitable provision for Her Support & Maintenance where it is in his power So to do.

And divorces may be granted for the cause of extreme cruelty in either of the parties.

And the Justices of the Superiour [sic] Court of Judicature may in all Cases where a divorce is decreed restore to the Wife all or any part of her lands tenements & Hereditaments and may assign to the Wife such part of the real and personal estate of her late Husband as all circumstances duly considered they may think just and reasonable. And they may use such process to carry their Judgment into effect as may be necessary and may compel the Husband to disclose on Oath what personal estate he hath received in right of his Wife and how the same hath been disposed of and what proportion thereof remained in his hand at the time of such divorce.


C. 94, passed February 1791.


RSA 148:10 (1842).


RSA 148:12 (1842).


In 1941, the word "support" replaced the word "maintenance." 1941 N.H. Laws, 84:1.


1975, 426:2, 1979, 211:1.


RSA 458:17 (III, IV) . Effective January 1, 2000, the following language was added at the end of the quoted sentence: "except that such other parent shall not be deemed to have a right of primary physical custody under RSA 633:4."


RSA 458:17 (VI).


RSA 458:17 (V). Such a change is based on "best interests" rather than harm to the child. See discussion of Perreault v. Cook under Modification of Custody section of this article.


Petition of Kerry D., No. 97-838,1999 N.H. Lexis 87, at *10 (N.H. Supreme Court Aug. 30, 1999) (citing Robert H., 118 N.H. 713, 716, 393 A.2d 1387,1389 (1978)); See also N.H. Const. part I, art. 2.


Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388,1396 (1982).


Kerry D. at *12-13.


Ross v. Gadwah, 131 N.H. 391, 554 A. 2d 1284 (1988).


Kerry D. at *4 (citing for example Sheehy v. Sheehy, 88 NH 223, 226, 186 A. 1, 4 (1936)).


Until 1911, it was the father alone. The change to joint guardianship was under 1911 N.H. Laws, 104:1-2.


White v. White, 77 N.H. 26, 30, 89 A. 352, 354 (1913).


Id. at 30.


This reference to property rights is used because of the analogy to "bundle of rights."


That is, guardian of the person of a minor.


Until 1996, the Probate Court had the power of appointment. Effective July 1, 1996, the Family Division has the statutory authority in Rockingham and Grafton counties. In counties without the Family Division, the Probate Court continues to have jurisdiction.


1903 N.H. Laws, 116:1. The list was essentially the same for ninety years, with updates in titles of officials and substitution of other charities for N.H. Society for Prevention of Cruelty to Children. Mayor, overseer of public welfare, or selectmen of the city or town in which the minor is residing, the county commissioners, the director of the division for children and youth services, New Hampshire Children's Aid Society, New Hampshire Catholic Charities, Inc., or Child and Family Services of New Hampshire. RSA 463:6, prior to amendment.1993 N.H. Laws 136:3 effective May 17, 1993.


RSA 463:5.


135 N.H. 688 (1992).


She would have standing under the current RSA 463:5.


139 N.H. 262 (1994). The author was counsel for the McLaughlins, the child's maternal grandparents.


RSA 463:4.


McLaughlin at 264.


Id. at 265.




RSA 458:17 (II).


RSA 458:17 (III).




At the end of 1999, the Family Division is in Grafton and Rockingham counties. 1995 N.H. Laws, 152:5, IV, and 152:8.


In a 1999 Superior Court decree, (Hillsborough South Docket #98-M-333) Judge Arthur Brennan made such a finding because father could not make decisions with mother. Father's Notice of Appeal was declined by Supreme Court. Docket # 99-303. See Anderson v. Anderson, 125 N.H. 686, 484 A.2d 1180 (1984).


Reversals are generally based on a legal defect. For example, Sanborn v. Sanborn, 127 N.H. 740 (1983); McLaughlin v. Mullin,139 N.H. 262 (1994).


Butterick v. Butterick, 127 N.H. 731, 506 A.2d 335 (1986).

Del Pozzo v. Del Pozzo, 113 N.H. 436, 309 A.2d 151 (1973).

Perreault v. Cook, 114 N.H. 440, 322 A.2d 610 (1974).

Provencal v. Provencal, 122 N.H 793, 451 A.2d 374 (1982).

Stanely D. v. Deborah D., 124 N.H. 138, 467 A.2d 249 (1983).

Richelson v. Richelson, 130 N.H. 137, 536 A.2d 176 (1987).

Ross v. Gadwah, 131 N.H. 391, 554 A.2d 1284 (1988).


RSA 458:17 (II).




125 N.H. 686, 484 A. 2d 1180 (1984).


Id. at 690, 484 A.2d at 1183.


Del Pozzo v. Del Pozzo, 113 N.H. 436, 309 A. 2d 151 (1973).

97. 437-438, 309 A.2d at 152-153.




RSA 458:17-a. N.H. Supreme Court Guidelines and Standards of Practice for Guardians ad Litem, Rule 2.4.2.


RSA 458:17-a, II. Historically, GAL in Superior Court custody cases were always lawyers. See Superior Court Guidelines for Guardians ad Litem (1983). The current training and certification system has no specific educational requirements. N.H. Supreme Court Guidelines and Standards of Practice for Guardians ad Litem, Rules 1.4, 1.5.


RSA 458:17-a, I, prior to amendment by 1992 N.H. Laws, 212:1-3.


RSA 458:17-a, I.


See N.H. Superior Court Standing Order Relative to Guardian ad Litem Appointment. The appointment order is a fill-in-the-blank form that the judge or master completes. It includes 18 specific areas of investigation and the judicial officer checks off those that apply. The GAL prepares the stipulation for the parents to sign.


130 N.H. 137, 536 A. 2d 176 (1987).


Id. at 142.




Id. at 143.


Id. at 144.


Id. at 148.


122 N.H. 793, 451 A. 2d 374 (1982).


131 N.H. 391, 554 A. 2d 1284 (1988).


122 N.H. 793, 451 A. 2d 374 (1982).


Id. at 795-96. Note: under Superior Court Domestic Relations Rule 15, GAL reports are sealed and available only to parties and counsel of record.


Id. at 797.






Id. at 797-98.


Id. at 798.


131 N.H. 391, 554 A. 2d 1284 (1988).


Id. at 393-94.


Id. at 394.


Id. at 395.


Id. at 394.


123 N.H. 740, 465 A. 2d 888 (1983).


Id. at 743-44.


Id. at 744- 45.


Id. at 747, citing U.S. Const. amend. I.


Id. at 748.


Id. (citing Lartein v. Grendel's Den, Inc., 459 U.S. 116, 123, 103 S. Ct. 505, 510 (1982)).


Id. at 748.


Id. at 748-49.


Id. at 748, (citing Provencal v. Provencal, 122 N.H. 793, 798-99, 451 A. 2d 374 (1982)).


Id. at 749.


Stanley D. v. Deborah D., 124 N.H. 138, 467 A. 2d 249 (1983).


Id. at 140- 141.


Id. at 141.


Id. citing RSA 458:17.


Id. at 142.


Id. at 142- 143.


Id. at 143.








With preschoolers, the schedule often includes frequent short periods with the secondary custodian. Once children attend school, the school schedule impacts parental time. In the teen years, the children's social and work schedule may make a set schedule impractical.


Repeated, intentional, and unwarranted custodial interference is a basis for modifying custody if it is in the best interests of the child. RSA 458:17, V.


114 N.H. 440, 322 A.2d 610 (1974).


127 N.H. 731, 506 A. 2d 335 (1986).


123 N.H. 740, 465 A. 2d 888 (1983).


114 N.H. 440, 322 A. 2d 610 (1974).


Id. at 441.


Id. at 442.




Id. at 443.


Id. (citing Freed & Foster, "The Shuffled Child and Divorce Court," 10 Trial 26 (1974)).




Id. at 746, (citing Perreault v. Cook, 114 N.H. 440, 322 A. 2d 610 (1974)).


Id. at 747.


127 N.H. 731, 506 A. 2d 335 (1986).


113 N.H. 436, 309 A. 2d 151 (1973).


114 N.H. 440, 322 A. 2d 610 (1974).




Butterick at 734-5.


Id. at 735, (citing Perreault v. Cook, 114 N.H. 440, 443, 322 A. 2d 610 (1974)).








RSA 458:17 (VI).


Until the mid-1990s, most Superior Court docketed these cases as equity cases, although they were regularly assigned to "marital" masters for hearing.


The origin of the questions was McLaughlin v. Mullin, 139 N.H. 262, 651 A. 2d 934 (1994).


Ellsworth v. Heath, 140 N.H. 833, 837, 678 A. 2d 138 (1996).


1995 N.H. Laws 152:5, IV, and 152:8.


119 NH 136, 399 A.2d 962 (1979).


RSA 460:26. This statute has been revised.


RSA 460:29.


Locke at 140.






Id. citing N.H. Const. pt. 1, art. 2.


Id. at 141, citing N.H. Const. pt.1, art.14.




David Osterman, Child Custody in NH: The Uniform Child Custody Jurisdiction Act," NHBJ vol. 23, no. 3, p. 102. (1982).


28 U.S.C. 1738 A(a).


Or countries. See Brauch v. Shaw, 121 N.H. 563, 573 (1981). However, if the Hague Abduction Convention, (See # 208 below) applies it would take precedence.


U.S. Const. art. IV, 1.


RSA 458-A:1, I. Note: F-I omitted. Also note that filing an action tolls the running of the time period.


RSA 458-A:3.


Mattleman v. Bandler, 123 N.H. 368 (1983); Clarke v. Clarke, 126 N.H. 743 (1985). See Osterman, supra at 102.


RSA 458-A:1 (a); 458 - A:2 (V).


RSA 458-A:3 I (b).


RSA 458-A:3 I (c).


RSA 458-A:3 ( I)(d).


121 N.H. 562, 432 A.2d 1 (1981).


121 N.H. 296, 428 A.2d 1243 (1981).


123 N.H. 358, 461 A.2d 733 (1983).


126 N.H. 753, 496 A.2d 361 (1985).


Rubin v. Smith, 919 F. Supp. 534 (D.N.H. 1996).


123 N.H. 368, 461 A. 2d 561 (1983).


Id. at 374.


121 N.H. 562, 432 A.2d 1 (1981).


Id. at 574.


121 N.H.,296 428 A.2d 1243 (1981).


Id. at 298, 428 A.2d at 1245.


Id. (citing RSA 458-A:7 (I) ).


126 N.H. 753, 496 A. 2d 361 (1985).


96 N.H. 443, 78 A. 2d 525 (1951).


See Public Law 96-611, 94 Stat. 3569 (1980)(codified at 28 U.S.C. 1738A).


The Hague Convention on the Civil Aspects of International Child Abduction (hereinafter Abduction Convention), adopted on October 24, 1980 by the 14th Session of the Hague Conference on Private International Law, Federal Register, Volume 53, No. 122, Friday, June 24, 1988, p. 23843 (effective date of the Convention July 1, 1988). The Department of State is the Central Authority for the U.S. See their publication International Parental Child Abduction (1997). See also, Gloria F. DeHart, American Bar Association, International Child Abductions, A Guide to Apply the Hague Convention, with Forms (1993).


International Child Abduction Remedies Act (ICARA),42 U.S.C. 11601 (1988).


Canada, Mexico, Australia, New Zealand, Israel, most European countries, many Caribbean and Latin American countries, and others scattered around the globe, are parties to the treaty.


ICARA, supra 11603.


See Abduction Convention, supra art. 1.


See Id. art. 4.


See Id. art. 3.


See Id. art. 13a.


See Id. art.13b.


See Id. art. 20.


Currier v. Currier, 845 F. Supp. 916 (1994). The author was counsel for petitioner, Gabrielle Currier.


Id. at 920.


Father had argued that mother was not exercising custodial rights.


25 U.S.C. 1901 et seq.


Haralambie, vol. 2, supra at 117-18 citing 25 U.S.C. 1903 (4).


The author had such a case in 1998, but as the child was over age 18, ICWA did not apply.


Haralambie, supra at 115.


Id. at 125.


Mason, supra at 188.


Id. at 189.




RSA 458:17 ; RSA 148:10 .

The Author

Attorney Honey Hastings is a solo practitioner in Nashua, New Hampshire and author of the "N.H. Divorce Handbook."

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