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Bar News - August 17, 2016

Legislature Eases Standards for Modifying Parenting Schedules


The 2016 NH Legislature made changes to only one section of the New Hampshire divorce and parenting statutes – parenting plan modifications (RSA 461-A:11).

The most significant provision in the legislation allows the court to change the parenting time if the existing allocation of time or schedule was based in whole or in part on the “young age of the child” and if the plan has been in place for at least five years (See Chapter 134 of the Laws of 2016, effective Jan. 1, 2017).

Any change must be based on the existing plan not being in the child’s best interest. It could be either in the schedule (days and hours for each parent) or in the allocation of time (which parent gets what percent of each week or longer period) or both.

The primary reason for this statute is that children usually outgrow a schedule made when they were quite young. A strict reading of the current law is that unless the parents agree to a change, a schedule made when a child is four months or 4 years old is going to be the schedule to age 18.

However, schedules appropriate for babies, toddlers, and preschoolers are often not right or practical for school-age children. In general, the younger age groups have schedules that avoid long gaps between times with either parent. School-age children can spend more consecutive days with one parent, without losing the connection with the other.

Additionally, once school starts, there is less time to divide between parents. In itself, this may require a schedule change. For example, if one parent was home with the young child during the week and the other parent had all the weekends, once the child starts school, this schedule would result in a quite different allocation of time.

With a very young child, it is more likely that one parent limited employment to focus on parenting while the other parent focused on employment. Five years later, this may have changed, justifying modification of the allocation of time.

Why does the bill require that the current order has been in place for at least five years? To avoid opening the door to requests to substantially change parenting plans every year or two. Children need stability. For shorter periods of time, the current law would apply.

In addition to the “young child, five years” provision, the chapter clarifies several gray areas of the current modification statue. These include whether the court may modify the parenting schedule based on substantial change in parental work schedule, substantial changes in the distances between the two homes, or on the relocation of one parent.

The new law will allow modification of a parenting plan that is not in the best interest of the child, if there is a change in travel time between parental homes or a substantial change in a parental work schedule. It also states that a relocation may be a basis for modifying the parenting schedule. That is, if a parent is allowed to relocate with the child, or conversely, if after denial, he or she moves without the child, the court may modify the parenting plan.

Why did the law have to be changed to allow such “common sense” changes? Current law makes switching the child’s “primary residence” or making an “other than minimal” change in the allocation or schedule difficult. Based on decades-old case law, the existing statutory test for such changes is a hard-to-meet two-part balancing test:

(1) The present environment is detrimental to the child; and

(2) The advantages of modifying the order outweigh the harm of making a change.

This test must be supported by “clear and convincing evidence,” a tougher standard than the usual “preponderance of the evidence.” The existing statute provides several exceptions to the two-part test above:

a. Agreement between the parents

b. Interference by one parent with residential responsibilities of the other

c. Parents have substantially equal parenting time

d. Mature minor’s views on parenting schedule

e. Change makes minimal or no change in allocation of time.

Another bill that passed the 2016 session set up a legislative study committee to study the implementation of the Parental Rights and Responsibilities Act (RSA 461-A) and answer the following questions:

1. Did adoption of RSA 461-A meet the legislature’s goal of minimizing the adversarial nature of divorce and parenting cases?

2. Could RSA 461-A and RSA 458-C be amended to further reduce the adversarial nature of such proceedings?

3. Would specific guidelines for shared and split parenting cases improve outcomes and reduce conflict?

4. What effect has the loss of state funding for guardians ad litem had on low-income cases?

The committee, composed of legislators, is due to make a report in November 2017 (See Chapter 281 of the Laws of 2016).

Several other family law bills were introduced but failed to pass. If passed, they would have amended the child support guidelines, the parenting modification tests, and the automatic restraining order. Major changes to the alimony statute were proposed, but the bill did not get out of the House Children and Family Law Committee. It is expected that alimony will be on the agenda of the 2017 General Court.

Honey Hastings

Honey Hastings retired in February after 34 years of solo practice. She now focuses on mediation and legislative advocacy. Hastings can be reached by email.

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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