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Bar News - August 19, 2011

New Law Resolves Muchmore Problems


Honey Hastings
The law on modifying parenting rights and the provisions of parenting plans has reverted to its pre-Muchmore terms with the passage of House Bill 52. The 2009 decision In the Matter of Muchmore and Jaycox ruled that any proposed changes in a parenting plan must meet the strict criteria formerly applied to a request to change a childís primary residence. The legislation that resolves the Muchmore problem is designated as Chapter 162 of the Laws of 2011, and was effective 13 August 2011.

In Muchmore, the New Hampshire Supreme Court found that the enactment of the Parental Rights and Responsibilities Act (RSA 461-A) had eliminated the distinction between where the child lives most of the time (formerly known as physical custody) and other parenting topics such as decision-making, communication, exchange location, and the schedule for the less-time parentís parenting. The Court noted that the terms "custody," "physical custody," and "visitation" had been abolished and thus the RSA 461-A:11 criteria for modification applied to every parenting topic. Except in equal-time cases, the criteria justifying change include:
  • Agreement.
  • Repeated, intentional, and unwarranted interference with the other parentís parenting time, subject to the childís best interest.
  • Clear and convincing evidence that the present environment is detrimental to childís physical, mental, or emotional health and the advantage of modifying the order outweighs the harm likely to be caused by the change.
  • If clear and convincing evidence shows that child is a mature minor, childís preference to be given substantial weight.
This decision meant that modification requests that did not change the allocation of time between the parents had to meet the criteria formerly applied to physical custody changes. This included requests to make changes such as defining weekend parenting time from a Friday to Sunday schedule to a Saturday to Monday schedule or moving the exchange location from the now-closed Taco Bell to McDonalds. The Muchmore opinion stated that its ruling might prevent judicial officers from making changes that were in the best interest of children. But it noted: Of course, if the legislature disagrees with our construction, it is free to amend the statute as it sees fit. 159 N.H. 470, 474 (2009). Chapter 162 amends RSA 461-A:11 by adding the following:
  • The best interest test applies if a schedule modification makes either a minimal or no change in the allocation of parenting time between the parents.
  • The best interest test applies to all topics in a parenting plan other than the parenting schedule and relocation, the latter of which includes its own balancing test.
  • Modification of decision-making responsibility is subject to the domestic violence provisions of RSA 461-A:5.
Read the text of the new law.

Honey Hastings is a mediator and lawyer in Wilton. She drafted both RSA 461-A and HB52.

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