Bar News - November 18, 2015
Family Law: Ten Years of the Parental Rights & Responsibilities Act
By: Honey Hastings
Proposed Family Law Legislation for 2016
By Honey Hastings
The following proposed legislative changes are still in the drafting and review stage.
Housekeeping Changes to RSA 458:
• Add to the jurisdictional grounds for divorce the filing of a joint petition by a New Hampshire domiciled petitioner and an out-of-state respondent.
• Add to the automatic restraining order exceptions the ability of either party to transfer from a joint account to an account in his or her name, half of the total balance, or $10,000, whichever is less.
• Add to the automatic restraining order a restriction on either party removing the other from existing health insurance coverage, failing to include the other in the open enrollment period to continue health insurance coverage, or removing the other as a beneficiary of life insurance.
Additional Grounds for Modifying Parenting Time (RSA 461-A:11 & 12)
• If one parent’s allocation of parenting time was based in whole or in part on the travel time between the parents’ residences at the time of the order and the parents are now living either closer to each other or further from each other by such distance that the existing order is not in the child’s best interest.
• If one parent’s allocation or schedule of parenting time was based in whole or in part on his or her work schedule and there has been a substantial change in that work schedule such that the existing order is not in the child’s best interest.
• If one parent’s allocation or schedule of parenting time was based in whole or in part on the young age of the child, the court may modify the allocation or schedule or both based on a finding that the change is in the best interests of the child, provided that the request is at least 5 years after the prior order.
• If relocation is agreed-on or ordered.
House Bill 249 was held by the House Children & Family Law Committee for interim study during 2016. Proposals being considered include a major statutory revision to delineate various types of alimony with differing purposes and termination standards. The maximum length of “basic” alimony would be tied to the marriage length and there could be guidelines for the amount of alimony. Expect hearings on alternative options in 2016.
Note: The proposed changes to RSA 458 and 461 will be assigned bill numbers when introduced in the House in January.
Honey Hastings practices family law and mediation in Wilton. For over 30 years, she has been active in modernizing family law statutes. She wrote the first two proposals described above.
NH Practitioners Surveyed on Law’s Impact
October 2005 saw a major change in family law, as the Parental Rights and Responsibilities Act (RSA 461-A) took effect. The statute includes a statement of state policy that: “Supports frequent and continuous contact between each child and both parents, and encourages parents to share in the rights and responsibilities of raising their children.” In addition to eliminating “custody,” the statute encourages mediation, requires parenting plans, and incorporates all child-related provisions of RSA 458.
Over these 10 years, the statute has been amended several times, primarily in sections six (best interest) and eleven (modification). The NH Supreme Court has issued a number of opinions interpreting this statute. A topic of many of these cases was modification, including a holding that the 1976 Perrault test has been replaced by the statutory standards of RSA 461-A:11. Another common topic was how legal parentage is determined. The Supreme Court also upheld the constitutionality of the parenting plan provision that requires seeking the help of a neutral before taking a parenting dispute to court.
In a survey of more than 150 family lawyers (56 responded) 33 percent answered that the Parental Rights and Responsibilities Act “substantially” impacted their practice, and 42 percent reported “some impact.”
In responding to the survey, Manchester family lawyer Marilyn Mahoney noted, “There is no question that RSA 461-A has had a profound impact on the whole issue of child custody. The concepts of a parenting plan, joint decision-making, and ‘residential responsibility’ are very widely understood by parents. Rarely do I see someone looking to engage in a win-lose battle for custody. Even when I do, after explaining the general principles of the statute and its legal foundation, a parent’s attitude will visibly change as they embrace the common-sense approach of the law.”
She continued: “The other benefit of RSA 461-A is the requirement of mediation and its ready availability and affordability. Mediation puts the important decisions about the lives of children into the hands of the people who know their children best – the parents themselves.”
“In my practice, it has become a rarity to need a guardian ad litem, which is evidence enough for me that the law is working. But I think there is also the realization that in today’s families, both parents typically are employed outside the home, both parents are active participants in the many jobs of parenting, and they both accept that the kids need and want both parents to take an active role on a daily basis.”
The goal of the Parental Rights and Responsibilities Act was to reduce the harm caused by the adversarial nature of parenting cases. Thirty-three percent of survey respondents concluded that this goal had been “moderately” met; 17 percent replied that the goal has “definitely” been met.
Asked if the new legal terms “parenting” and “decision-making” have made a positive difference in their cases, 21 percent of survey respondents replied “yes,” 38 percent replied “some positive difference, if I explain what they mean.” Shaunna L. Browne commented that, “It requires parents to really think about a parenting schedule that will meet their children’s needs and not concentrate upon who has custody vs. visitation.”
An anonymous respondent said, “It helps reduce the all-or-nothing feel of the word ‘custody.’ ” Another noted that negotiations had changed from a “possessory demand to a more nuanced discussion of the child’s best interest.” Others reported that disputes over “primary” residential responsibility have replaced the former fights over “custody.”
RSA 461-A:6 contains the first statutory best-interest test for New Hampshire. Seventy-one percent found this helpful in explaining the law to clients, and 20 percent found it to be a helpful criteria for judges to apply.
The survey also asked what changes in RSA 161-A those responding would like to see. Eleven of the 56 responding mentioned the current tough standard for modifying parenting schedules, and especially, that self-represented litigants often sign a parenting plan without understanding this. (See sidebar, for a preview of a 2016 bill that would add several new reasons for modification, including that the schedule was based on the child’s young age and at least five years have passed since that order.)
Honey Hastings practices mediation and family law in Wilton. She served on the Task Force on Family Law and drafted RSA 461-A. For 30 years, she has been active in modernizing family law statutes.