Bar News - November 19, 2010
Family Law: Parental Rights and Responsibilities
By: Honey Hastings
October 2005 saw a major change in family law, as the Parental Rights and Responsibilities Act (RSA 461-A) took effect. Most of RSA 461-A is text transferred from RSA 458, with updated terms. The statute includes a statement of state policy that: "Supports frequent and continuous contact between each child and both parents, and encourages parents share in the rights and responsibilities of raising their children." In addition to eliminating "custody," the statute encourages mediation (it may be ordered); requires parenting plans; and incorporates all child-related provisions of RSA 458.
Family law lawyers see a lot of men and women facing divorce who are seeking advice and direction. One of the priorities many of them list is "custody." Similarly, some couples who go to mediation report that their main disputed issue is "custody." In my office, all get the same answer, "You are not going to get ‘custody,’ as it has been abolished."
In 2005, Manchester lawyer Marilyn Mahoney was skeptical that changing the terminology would have any real effect on parents’ attitudes when going through divorce, but her experience has been different.
"I have on numerous occasions observed clients process the concept [of parenting], think about their kids from a different perspective, and move from the adversarial, win/lose way of thinking to a more cooperative co-parenting approach. In my practice, there has been a real decrease in litigation about parenting," she said. "Of course, there are still those high-conflict situations where cooperation and positive attitudes are not going to be successful. Nevertheless, there is beginning to be a shift in people’s attitudes that I think signifies a general societal shift toward less hostility on the parenting issues, and fewer power struggles."
Hanover lawyer "Cappy" Nunlist says, "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.’"
Laconia lawyer-GAL John Cameron reports "It is helping put a positive spin on parenting after divorce as opposed to ‘you win, I lose.’" He notes that it is "reducing litigation and competition over children."
Newport lawyer Lanea Witkus reports, "Mediation has made the most positive impact as it is an outlet to address the emotional issues that the courts don’t have time for."
Rye lawyer Patricia Frim says, "I remind parents to carefully read the Parenting Plan form to understand how the law in NH regards what children need and to see the points the state considers important so they don’t think it is the other parent or the lawyer making an issue about details."
The statute was amended in 2006 and 2007 to restore the mature minor test for modification, which had been mislaid in the transfer from RSA 458 to 461-A.
The most important case decided under RSA 461-A is In the Matter of Muchmore & Jaycox, issued 4 December 2009. The Court’s holdings: (1) Under RSA 461-A, there is no distinction between "custody" and "visitation;" both are included in "parental rights and responsibilities." (2) A court may modify a parenting plan only if one of the RSA 461-A:11 circumstances exist: (a) agreement; (b) interference with parenting; (c) present environment is detrimental; or (d) an equal time schedule is not working. [The Court did not mention the "mature minor" test, likely because the child was age two.] (3) "Best interest" is not sufficient reason to modify; it is the test for what modification is appropriate. (4) An order from another state qualifies as a parenting plan if it "describes each parent’s rights and responsibilities."
The parties are the unwed parents of a child born in 2006. In 2007, a Vermont court entered a stipulation and order giving mother "primary legal and physical parental rights and responsibilities, with father having weekly contact with the child." After both moved to New Hampshire, father petitioned for modification alleging grounds (b), (c), and (d) above. Mother moved to dismiss, alleging that father had not met his burden. The trial court denied the motion, noting that while father had not met his burden under (b), (c), or (d), proof that modification was in the child’s best interest was sufficient.
The Supreme Court ruled that RSA 461-A:4 is not an alternate test for modification; any modification must meet an RSA 461-A:11 test. The Court also rejected father’s argument that his request merely sought a change in the "visitation" schedule, as both "custody" and "visitation" are anachronisms.
Since Muchmore, most trial court judicial officers will not change the schedule unless one of the RSA 461-A:11 factors apply. One short-term solution that some judicial officers are approving is to make a temporary parenting plan. This method may be used for the initial order at the time of the divorce or later, when a change in the schedule is requested. An example of the first situation is a case where the parties have not yet separated and thus have not tried out the parenting schedule. Before establishing a schedule that may be (under Muchmore) non-modifiable, the parties want to try it out. One modification scenario where a temporary order would be useful is when an old parenting plan was made when the child was quite young, but doesn’t fit now as the child enters first grade.
I expect the 2011 Legislature will consider an amendment to address the Muchmore issues.
Honey Hastings is a solo-practitioner in Wilton, NH. She is co-founder of the NHBA Family Law Section and co-founder of the Collaborative Law Alliance of New Hampshire. You can reach her at email@example.com.