New Hampshire Child Custody Agreement
New Hampshire keeps the word custody out of the parenting plan itself, and rewards an agreed decision-making arrangement with a presumption a judge can refuse only in writing.
Find out where you stand in New Hampshire
Where are you with the custody arrangement?
DocDraft provides document preparation, not legal advice.
Introduction
New Hampshire does not put custody in a parenting plan, and RSA 461-A:4, VI is the reason: the plan may not describe either parent as having "custody" or "primary residential responsibility", as the "primary residential parent", or as the parent with whom the child "resides primarily". What the plan allocates instead is parental rights and responsibilities, divided into decision-making responsibility and residential responsibility, with a parenting schedule doing the work that visitation does in other states. RSA 461-A:20 carries that vocabulary outward, so a reference to custody anywhere else in New Hampshire law means the allocation made under this chapter, and a custodial parent means one with 50 percent or more of the residential responsibility. Agreeing still buys something concrete. Under RSA 461-A:5, I there is a presumption affecting the burden of proof that joint decision-making responsibility is in the child's best interest where the parents have agreed to it, and a court that declines to enter the agreed award must state the reasons for the denial in its decision. That presumption reaches decision-making only, not the parenting schedule and not residential responsibility, and it does not apply where the court finds abuse under RSA 461-A:5, III. The plan itself becomes binding when it is filed under RSA 461-A:4, I and included in the court's decree.
Key Things to Know
- 1
Agreeing changes the burden of proof, and only on one subject. RSA 461-A:5, I creates a presumption affecting the burden of proof that joint decision-making responsibility is in the child's best interest where the parents have agreed to that award, or so agree in open court at the hearing. A parent who merely applies for joint decision-making without the other parent's agreement gets it at the discretion of the court under paragraph II, so the agreement is what converts a discretionary request into a presumption the objecting side has to overcome.
- 2
The presumption stops at decision-making. RSA 461-A:1 treats decision-making responsibility and residential responsibility as two different things, and the RSA 461-A:5 presumption reaches only the first. An agreement about the parenting schedule or about how residential responsibility is divided carries no presumption of its own; the court applies RSA 461-A:4, I and the best interests factors in RSA 461-A:6 to it.
- 3
The plan cannot use the language most templates use. RSA 461-A:4, VI forbids a parenting plan from describing either parent as having "custody" or "primary residential responsibility", as the "primary residential parent", or as having the child "reside primarily" with them. A generic custody form that names a custodial parent is not merely off-tone in New Hampshire, it is written in words the statute rules out. Use decision-making responsibility, residential responsibility, parenting schedule, and non-residential parenting time instead.
- 4
A plan is required, but most of its contents are optional. RSA 461-A:4, I requires the parents to develop and file a parenting plan in any proceeding to establish or modify a judgment providing for parenting time, with matters filed under RSA 173-B carved out, and lets the court develop the plan if the parents cannot. The eight topics listed in RSA 461-A:4, II are ones a plan "may" include, and RSA 461-A:2, I(d) states a policy of giving parents and courts the widest discretion in developing a plan. Two items are not optional: a detailed parenting schedule under RSA 461-A:4, VI, and each parent's legal residence under RSA 461-A:4, IV where the parents have joint decision-making responsibility, subject to an exception for a history of domestic abuse or stalking.
- 5
The best interests test is a thirteen item list, and one part of it changed recently. RSA 461-A:6, I sets out factors (a) through (m), of which (m) is an express catch-all for any other factor the court deems relevant, so the list is open rather than closed. Since January 1, 2025, RSA 461-A:6, I-a requires the court to make findings supporting its order whenever it concludes that approximately equal parenting time is not in the child's best interest, and the policy statement at RSA 461-A:2, I(a) was changed to match. That is a findings requirement and a statement of policy rather than a presumption of equal parenting time, and RSA 461-A:6, III separately bars any preference based on the sex of the child, the sex of a parent, or a parent's financial resources.
- 6
Where the court finds that abuse has occurred, RSA 461-A:5, III requires it to consider that abuse as harmful to children and as evidence on whether joint decision-making responsibility is appropriate, to make the orders that best protect the children or the abused spouse or both, and to give written findings if it awards joint decision-making anyway. Because RSA 461-A:5 opens with the words "Except as provided in paragraph III", the agreement based presumption does not apply in that situation. RSA 461-A:7, V also bars the court from ordering mediation where there is a finding of domestic violence unless all parties agree. This is mandatory consideration rather than a presumption against an abusive parent, and it is a situation to take to a lawyer rather than settle on a form.
- 7
Agreeing helps again later. RSA 461-A:11, I(a) makes it a free standing ground for modifying a permanent order that the parties agree to the modification, which sits alongside harder contested routes such as the clear and convincing showing in I(c) that the child's present environment is detrimental. The agreement still has to go to the court, because a side arrangement between parents does not change an existing decree. Child support is a separate calculation under separate rules and is not settled by the parenting plan.
Key decisions before you file
Before you file a Child Custody Agreement in New Hampshire, a few decisions shape the document: which option to choose and what each one means. The Child Custody Agreement guide walks through them.
Open the Child Custody Agreement guideCustomize your Child Custody Agreement Template with DocDraft
New Hampshire Requirements for Child Custody Agreement
In a proceeding to establish or modify a judgment providing for parenting time with a child, the parents shall develop and file a parenting plan to be included in the court's decree. Matters filed under RSA 173-B are excepted. If the parents are unable to develop a plan, the court may develop it, considering only the best interests of the child under RSA 461-A:6 and the safety of the parties.
The plan must contain a detailed parenting schedule specifying the periods when each parent has residential responsibility or non-residential parenting time, and neither parent may be described as having the child reside primarily with him or her, as having primary residential responsibility or custody, or as the primary residential parent. Draft the plan in those statutory terms rather than in custodial and non-custodial labels.
Where the parents have agreed to an award of joint decision-making responsibility, or so agree in open court at the hearing, there is a presumption affecting the burden of proof that joint decision-making responsibility is in the child's best interest, and a court that declines to enter the order must state its reasons in the decision. A parent who applies for joint decision-making without the other parent's agreement receives it only at the discretion of the court. The presumption covers decision-making responsibility, not the parenting schedule or residential responsibility.
Any provision of law referring to the custody of minor children means the allocation of parental rights and responsibilities under RSA 461-A. A custodial parent means a parent with 50 percent or more of the residential responsibility and a non-custodial parent means a parent with less than 50 percent, and the same 50 percent rule applies for interstate jurisdiction purposes under RSA 461-A:3, III.
The court is guided by the best interests of the child and shall consider thirteen lettered factors, covering the relationship of each parent with the child, the parents' ability to provide for the child's needs, the child's developmental needs, the quality of the child's adjustment and continuity, the ability and disposition of each parent to foster a relationship with the other parent and to communicate and cooperate, the support of the child's relationship with the other parent, the child's own wishes, any history of abuse, the state policy in RSA 461-A:2, and any other factor the court deems relevant.
As amended effective January 1, 2025, the court must make findings supporting its order whenever it determines that approximately equal parenting time is not in the child's best interest. The policy statement at RSA 461-A:2, I(a) carries the same wording. This is a findings and policy provision, not a presumption of equal parenting time.
Where the parents have joint decision-making responsibility, the plan must include the legal residence of each parent unless the court finds a history of domestic abuse or stalking, or finds that inclusion is not in the child's best interest. Each parent has a continuing duty to notify the court and the other parent of a change of legal residence, enforceable by contempt.
A plan may include decision-making and residential responsibility, information sharing and telephone and electronic access, the child's legal residence for school attendance, a parenting schedule with holiday, birthday and vacation planning, transportation and exchange, relocation of parents, a procedure for review and adjustment, and methods for resolving disputes. Since July 1, 2024, RSA 461-A:4, III bars the court from ordering family reunification treatments, programs or services, including camps, workshops, therapeutic vacations and educational programs, that require or result in a no-contact order, an overnight or out-of-state or multi-day stay, a transfer of physical or legal custody, the use of private youth transporters using force or the threat of force, or threats of physical force, undue coercion, verbal abuse or isolation from the child's family. Paragraph V allows the court to require that supervised visitation occur only at a center with a metal detection device and on-site trained security personnel.
The section applies to relocation of a residence in which the child resides at least 150 days a year, and does not apply where the relocation results in a residence closer to the other parent or within the child's current school district. The relocating parent must give reasonable notice before moving, and 60 days is presumed reasonable unless other factors are present or the parents agree otherwise in writing. A parent shall not relocate a child without a court order unless relocation is necessary to protect the safety of the parent or child. At either parent's request a hearing is held, the relocating parent must show a legitimate purpose and a location reasonable in light of it, and the burden then shifts to the other parent to show the relocation is not in the child's best interest.
A permanent order may be modified where the parties agree to a modification, which stands apart from contested grounds such as clear and convincing evidence that the child's present environment is detrimental. Enforcement runs through a family access motion for substantial and material noncompliance with a court approved parenting plan, with remedies including compensatory parenting time of not less than the time denied, counseling, a fine of up to $500 payable to the aggrieved party, a compliance bond, and cost shifting, and final disposition within 60 days of service.
Frequently Asked Questions
If you agree on joint decision-making responsibility, RSA 461-A:5, I gives that agreement a presumption affecting the burden of proof that the arrangement is in the child's best interest, and a court that declines to enter the agreed order has to state the reasons for the denial in its decision. Agreement matters here because a parent who only applies for joint decision-making, without the other parent agreeing, receives it at the court's discretion under paragraph II. The presumption covers decision-making responsibility only. Your parenting schedule and your division of residential responsibility get no presumption, and the presumption does not apply at all where the court finds abuse under paragraph III.
Yes. RSA 461-A:4, I requires the parents to develop and file a parenting plan to be included in the court's decree, and in developing or reviewing a plan the court considers only the best interests of the child under RSA 461-A:6 and the safety of the parties. Until the plan is in the decree it is not enforceable as an order. RSA 461-A:5, I contemplates a court declining to enter even an agreed joint decision-making award, and requires written reasons when it does.
No. RSA 461-A:4, VI states that neither parent shall be described as having the child reside primarily with him or her, as having primary residential responsibility or custody, or as the primary residential parent. The plan uses decision-making responsibility, residential responsibility, parenting schedule and non-residential parenting time instead. RSA 461-A:20 then handles the translation for the rest of the code, providing that any law referring to custody of minor children means the allocation of parental rights and responsibilities under this chapter, that a custodial parent is one with 50 percent or more of the residential responsibility, and that a non-custodial parent is one with less.
They are the two halves of what RSA 461-A calls parental rights and responsibilities. Decision-making responsibility is authority over the significant decisions in a child's life, such as schooling, health care and religious upbringing. Residential responsibility is about where the child actually is, and the parenting schedule sets out the periods when each parent has residential responsibility or non-residential parenting time. They are allocated separately, and one does not follow from the other.
In any proceeding to establish or modify a judgment providing for parenting time with a child, RSA 461-A:4, I requires the parents to develop and file one, with matters filed under RSA 173-B expressly excepted. If the parents cannot develop a plan, the same paragraph lets the court develop it, considering only the child's best interests under RSA 461-A:6 and the safety of the parties. So a plan results either way, and the question is only whether it is yours.
Less than most states require. RSA 461-A:4, II lists eight topics a plan may include, from information sharing to dispute resolution methods, but the list is permissive, and RSA 461-A:2, I(d) states a policy of allowing parents and courts the widest discretion in developing a plan. Two things sit outside that list and are required: a detailed parenting schedule under RSA 461-A:4, VI, and each parent's legal residence under RSA 461-A:4, IV where the parents have joint decision-making responsibility, unless the court finds a history of domestic abuse or stalking or that inclusion is not in the child's best interest. A plan that omits a detailed schedule is not complete.
Not by presumption. Since January 1, 2025, RSA 461-A:6, I-a requires the court to make findings supporting its order whenever it determines that approximately equal parenting time is not in the child's best interest, and the policy statement in RSA 461-A:2, I(a) was changed to the same wording. That is an encouragement and a findings requirement rather than a presumption. The only presumption in the chapter is the joint decision-making presumption in RSA 461-A:5, and RSA 461-A:6, III bars any preference based on the sex of the child, the sex of a parent, or a parent's financial resources.
Through the court, on one of the grounds in RSA 461-A:11. The first of them, I(a), is simply that the parties agree to the modification, which is a considerably shorter route than the contested grounds, one of which requires clear and convincing evidence that the child's present environment is detrimental. A private side agreement does not change the decree, so an agreed modification still has to be submitted. RSA 461-A:4, II(g) also lets the plan itself set out a procedure for review and adjustment.
RSA 461-A:12 applies to the relocation of a residence in which the child resides at least 150 days a year, and it does not apply where the new residence is closer to the other parent or is within the child's current school district. The relocating parent must give reasonable notice before moving, and 60 days notice is presumed reasonable unless other factors are present or the parents have agreed otherwise in writing. Silence is not permission: under paragraph II-a a parent shall not relocate a child without a court order unless relocation is necessary to protect the safety of the parent or child. If either parent asks for a hearing, the relocating parent must first show a legitimate purpose and that the proposed location is reasonable in light of it, and the burden then shifts to the other parent to show the move is not in the child's best interest.
RSA 461-A:4-a allows a family access motion for substantial and material noncompliance with a court approved parenting plan, and paragraph VI requires final disposition within 60 days of service. Remedies under paragraph IV include compensatory parenting time of not less than the time denied, counseling for the parent who violated the plan, a fine of up to $500 payable to the aggrieved party, a bond to secure compliance, and payment for reunification counseling, with cost shifting available and the court's contempt powers behind it. Those are order remedies, which is why getting the plan into the decree matters. The chapter enforces a parental agreement on educational expenses in its own terms under RSA 461-A:23, but there is no comparable provision making a parenting plan enforceable as a private contract.