New Hampshire Child Custody Agreement

Introduction

Key Things to Know

1. 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. 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. 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. 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. 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. 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. 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.

New Hampshire Requirements for Child Custody Agreement

• Parenting Plan Required and Included in the Decree (RSA 461-A:4, I)

  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.

• Prohibited Custody Labels in the Plan (RSA 461-A:4, VI)

  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.

• Presumption From an Agreed Joint Decision-Making Award (RSA 461-A:5, I and II)

  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.

• Statutory Meaning of Custody Elsewhere in the Law (RSA 461-A:20 and 461-A:3, III)

  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.

• Best Interests Factors Applied to the Plan (RSA 461-A:6, I(a) to (m))

  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.

• Findings When Approximately Equal Parenting Time Is Not Ordered (RSA 461-A:6, I-a)

  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.

• Legal Residence Disclosure With Joint Decision-Making (RSA 461-A:4, IV)

  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.

• Optional Plan Topics and Limits on Court-Ordered Programs (RSA 461-A:4, II, III and V)

  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.

• Relocation Notice, Exclusions and Court Order (RSA 461-A:12)

  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.

• Modification by Agreement and Enforcement of the Plan (RSA 461-A:11 and 461-A:4-a)

  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.