Bar News - November 15, 2013
Family Law: Child Removal in NH: Examining the Law and Legal Strategies
By: Matt Passalacqua
The effect on a family when one parent moves away with a child, while the other parent stays behind, is often dramatic.
In the past year, I have litigated two cases involving child removal and have gained much insight from these all-or-nothing cases, which almost always have a serious impact on a family’s composition, the parents’ economic status, and the child’s future. Perhaps no other type of case has a greater “cost” than one involving child removal.
Child removal occurs when one parent attempts to take the parties’ child or children out of the jurisdiction in which they reside. To lawfully remove a child from New Hampshire, a party must ask the court for permission.
Substantive New Hampshire Child Removal Law
A New Hampshire court has continuing jurisdiction over a child removal case until the court determines that: (1) the child, the child and one parent, or the child and a person acting as a parent does not have a significant connection with New Hampshire; (2) that substantial evidence is no longer available in this state concerning the child’s care, protection, training; and/or (3) the child’s parent or any person acting as a parent does not presently reside in New Hampshire (NH RSA 458-A:13).
NH RSA 461-A:12 governs child relocation and expressly states that it only applies “if the existing parenting plan, order on parental rights and responsibilities, or other enforceable agreement between the parties does not expressly govern the relocation issue.” Additionally, it states that it does not apply “if the relocation results in the residence being closer to the other parent or to any location within the child’s current school district” and only applies “to the relocation of any residence in which the child resides at least 150 days a year.”
Prior to relocating, the parent moving must provide reasonable notice to the other party. Sixty days is considered “reasonable,” unless other factors are present. The parent who is relocating bears the initial burden of demonstrating that “(a) the relocation is for a legitimate purpose; and (b) the proposed location is reasonable in light of that purpose.” If the relocating party meets this burden of proof, the burden shifts to the other parent to prove the proposed relocation is not in the best interest of the child.
In determining what is in the child’s best interests, the court examines the following factors: (1) each parent’s reasons for seeking or opposing the move; (2) the quality of the relationships between the child and the parents; (3) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent; (4) the degree to which the custodial parent’s and child’s lives may be enhanced economically, emotionally, and educationally by the move; (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements; (6) any negative impact from continued or exacerbated hostility between the custodial and noncustodial parents; and (7) the effect that the move may have on any extended family relations. Tomasko v. Dubuc, 145 NH 169, 172 (NH 2000).
Other factors that should be pled and may aid the court in determining a difficult case are unique health issues of the parties and the children, any special needs or talents of the child, whether the child is in a “transitional year” in school, and any travel expenses related to visitation.
In an ideal world, a client would seek legal representation prior to the child’s removal from the jurisdiction. In this situation, it is good practice to file a motion to remove (or prevent the removal of) the child simultaneously with a complaint for modification or divorce. If there is an urgent need to remove the child from the jurisdiction or to block a party from removing the child, then an emergency ex parte motion for temporary orders should be filed as soon as possible.
To effectively file an emergency ex parte motion for temporary orders, one must file a complaint for divorce, modification, or custody and pay any corresponding court fees. One must also file a motion for temporary orders, with an affidavit signed by the client, and schedule a hearing date, as well as file a proposed order (see NH Judicial Branch Form 2076). If granted, this allows a party immediate relief, and a hearing will be scheduled within 30 days. If the party wishing to move has already filed a motion to relocate, then the party opposing the move should file an opposition to relocation, along with its emergency ex parte motion.
If a party relocates without a court order in place, then the opposing party should file an emergency order requiring the moving party to relocate back to the original jurisdiction. If done timely, this will preserve all parenting rights and require the moving party to either move back or relinquish custody of the minor child.
If the parties already have pending divorce or custody proceedings, and the court has issued temporary orders, and a party wishes to take the children out of the jurisdiction, then it is a good strategy to file a motion to modify temporary orders or a motion for further temporary orders to relocate out of the jurisdiction with a minor child. This will allow a party to temporarily move out of the jurisdiction with the child, pending a final hearing. If this motion is granted, then an important status quo will be established that may be difficult to displace in further proceedings, due to the child being in a stable environment, enrolled in a school system, and part of a particular community.
If the parties have a judgment for divorce or custody, and a party wishes to take the children out of the jurisdiction, then a good strategy is to file a complaint for modification. To successfully litigate a complaint for modification, a party must first show that there has been a change in circumstances since the original judgment and then meet the applicable relocation standards outlined above.
In the event that a party takes minor children out of the jurisdiction against a court order, then it is proper to file a complaint for contempt. In New Hampshire, a party is in contempt if they violate a court order. If a party is held in contempt, he or she may be subject to fines, attorney’s fees, or even a jail sentence.
Matthew Passalacqua is licensed in New Hampshire and Massachusetts and is associated with Kajko, Weisman, Colasanti & Stein, LLP in Lexington, Mass. This article is tailored specifically to New Hampshire law, but is part of a larger regional child removal article to be co-authored with Stephen MacKenzie. Passalacqua can be reached at firstname.lastname@example.org or (603)440-9495.