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Bar News - May 15, 2009

Family Law - The Abolition of “Custody” in Divorce Cases



When I first meet with a potential divorce client, he or she often says, “I have to get custody,” or, “The other parent wants custody.” Similarly, couples who come to me for mediation may say that their major issue is custody. I tell them all, “No one is going to get custody in this case.”


The initial response is surprise, but when I explain New Hampshire’s public policy (see RSA 461-A: 2) and the reasons for it, these folks facing divorce relax. In my experience, both mothers and fathers are relieved to learn that there will be no “custody fight” and the child will have two active, involved parents. (Of course, some will still fight, but it is no longer for the badge labeled “custodial parent.”)


RSA 461-A, the Parental Rights and Responsibilities Act, took effect October 1, 2005.  The General Court made fundamental statutory changes in how New Hampshire looks at responsibilities for children at the time of divorce or separation, as well as modifications of the original orders. As children do best when both parents are substantially involved in their care, this is now reflected in New Hampshire’s statutes.


Some lawyers (and judges) are still trying to integrate both the philosophical and language changes the Act made to divorce and unwed cases. But some who had been hesitant about the language changes have become supporters. Cathryn “Cappy” Nunlist of Hanover says, “ I tell my clients that the focus has shifted from who has the ‘right’  to the children’s time to how the parents are going to share the responsibility for taking care of the child. And I refuse to talk about custody. I used to think that the change in the words was pointless and politically correct wordsmithing – but have changed my mind. I have a very different conversation with clients when we start to talk about how they are going to take care of the kids than when we talked about custody.”


The Act was the outcome of a couple of years of work by the multi-disciplinary Task Force on Family Law whose report was included in the Winter 2005 New Hampshire Bar Journal, available at


The Task Force report included the following recommendations:


Include [in the statute] statements of intent as to parties making their own decisions and both parents being substantially involved in raising their children. The Task Force proposes refocusing both the culture in New Hampshire and our legal system on parties making their own decisions and both parents being substantially involved in raising their children. Except for RSA 458:15-a (the current mediation statute) the divorce and custody statutes primarily consist of the procedures and legal standards for litigation. The new family-centered policies should be stated in the statutes. By inserting these principles in the statutes, all readers, whether parents, Guardians ad Litem, other parties, lawyers, or judicial officers, will know the background of and reasons for the specific statutory provisions.


In furtherance of this change in culture and in the legal system, such a statement of policy was included in RSA 461-A:


461-A:2 Statement of Purpose.


I. Because children do best when both parents have a stable and meaningful involvement in their lives, it is the policy of this state, unless it is clearly shown that in a particular case it is detrimental to a child, to:


(a)     Support frequent and continuing contact between each child and both parents.

(b)     Encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or divorced.

(c)     Encourage parents to develop their own parenting plan with the assistance of legal and mediation professionals, unless there is evidence of domestic violence, child abuse, or neglect.

(d)     Grant parents and courts the widest discretion in developing a parenting plan.

(e)     Consider both the best interests of the child in light of the factors listed in RSA 461-A:6 and the safety of the parties in developing a parenting plan.


II. This chapter shall be construed so as to promote the policy stated in this section.


As to language, the Task Force report stated:


The Task Force specifically recommends that New Hampshire change terminology such as “custody” and “visitation” to “parenting rights and responsibilities” to reflect the continuing role of both parents in each child’s life. “Custody” is something that is “won” or “lost,” as though the child was a possession or a game. “Visitation” seems to convey that the parent who does not have primary physical custody just visits with his or her children, rather than providing important parenting input. Changing the language for these and other terms to reflect the joint responsibility for parents for the care and nurture of their children is not enough, but it is an essential component of the changes needed in family law.


This recommendation was enacted in RSA 461-A.  As lawyers, we can understand the emphasis on language change in both the report and the Act.  Language matters. Consider the difference between “elderly” and “senior citizen” or between “paramour” and “significant other” or “lawyer” and “mouthpiece.”  The meanings are similar but the differences are significant. The old statutory language emphasized the “rights” of parents, rather than the joint responsibility of parents for the care and nurture of their children, whether the parents are married, never married, or formerly married.


Why was “custody” abolished? “Custody” suggests ownership. I have had cases where the fight was not over the schedule, but the title “custodial parent.” A parent who thinks he/she has “custody” is likely to act differently than one who understands that he or she is sharing parenting rights with the other parent. The term carries with it the connotations of the other legal uses for the word “custody,” namely:


  1. The care and control of a thing or person for inspection, preservation, or security.
  2. The detention of a person by virtue of lawful process or security.


(Black’s Law Dictionary, 7th edition.) “Custody” is no longer an accurate word to describe the responsibility for children after a divorce or separation.


“Visitation” is not an accurate term for a parent’s time with his or her children.  Children visit grandparents, aunts, and friends.  When they have time with the parent, the parent is caring for, or “parenting” the child. This was recognized by the General Court when in 1981 it substituted “physical custodial rights” for “visitation” in RSA 458:17 by inserting the following as paragraph IV (since repealed):


In those cases where joint legal custody is awarded to the parents and physical custody of the child or children is awarded to one of the parents, the other parent shall be awarded physical custodial rights during all periods of the time heretofore referred to as visitation, except that such other parent shall not be deemed to have a right of primary physical custody under RSA 633:4.


Despite common usage, from 1981 to 2005, any use of the term “visitation” for parents “physical custodial rights” was inaccurate.  But now, we have simply “parenting time.”


On a practical basis, how does a lawyer explain parental rights and responsibilities to clients? Marilyn McNamara, director of the Legal Advice and Referral Center, has suggested a short explanation for clients:  “The previous terms, custody and visitation, did not adequately describe the way families care for their children after divorce. The new terms highlight the responsibilities each parent has to participate in raising his or her children regardless of the children’s primary residential setting.”


How does a lawyer support the public policy of the statute? We can make a difference to families by seeing that clients understand and use the correct words. As I work with clients, they sometimes slip and use the old terms. I correct them and remind them of the child’s need for both parents.


In writing parenting plans, I rarely specify a primary residential parent. There is no need to. If the parenting schedule is for one parent to have alternate weekends and one overnight each week, it is clear where the child is spending most of her/his time. The designation “primary residential parent” can become a long-winded substitute for “physical custody” with the same potential for harm.


Lawyers can influence their clients’ view of the law, the court system, and the realities of co-parenting after divorce. Explaining New Hampshire’s parenting law is part of it. So is getting them to the Child Impact Program early in the case, when the information can do the most good – and to mediation, at least about parenting issues.


Honey Hastings practices in Wilton, NH.  She has been a member of the NH Bar since 1980.  She can be reached at

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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