Child Custody

The fact that parents have a fundamental right to their children is one of the most well-established principles in the constitution. Custody disputes are often emotionally draining and stressful.  Usually, each parent will want what is best for the child but will disagree on what custody arrangement will be in the child’s best interest.  It is important to seek legal advice prior to signing any documents related to a custody because once signed and approved by the court, the custody arrangement is often difficult, but not impossible, to change.  

  In New Hampshire, custody is broken down into two categories, “decision-making” authority and “residential responsibility.”  “Decision-making” refers to the parents’ rights to share in major decisions regarding the child’s education, religion and medical care.  “Residential responsibility” refers to where the child will live.  Custody is more commonly referred to as “parenting time”.  The document that outlines the custody arrangement is called a “parenting plan.”  

The laws regarding custody are contained in New Hampshire Statutes RSA 461-A, the Chapter of Parental Rights and Responsibility. Absent certain factors, such as abuse or child endangerment, New Hampshire law favors parenting plans that award equal or approximately equal parenting time between the parents.  The age of the child is a big factor in drafting a parenting schedule.  For example, a younger child may not tolerate the same number of transitions that a teenager may be able to handle 

The purpose of the parenting plan is to encourage the parents to share in the raising of their child(ren) and to grant parents wide discretion in adopting their own parenting plans. To promote this goal, the court will order a mediation in all cases involving minor children prior to scheduling a court date.  A court-appointed mediation occurs in the courthouse.  A mediator is a third-party neutral who will try to facilitate an agreement between the parents.   A mediator is sometimes not an attorney and can never give legal advice.  For this reason, it is often wise to have an attorney present at the mediation to represent your interest and help negotiate a favorable parenting plan.  

In some cases, a Guardian Ad Litem (GAL) is appointed by the court to make recommendations. A GAL does not legally represent the child but is charged with making recommendations to the court that are in the child’s best interest.  The GAL will conduct an investigation into your case.  The court can, but is not required to, adopt a GAL’s recommendation.

Divorce

ODivorce and custody disputes are emotionally overwhelming, the complexities of the court process can certainly add to an already stressful situation.  Overall, there are two aspects to a divorce case: (1) the issues that need to be decided and (2) the process used to issues decide the issues.

What issues does a divorce need to decide?

A divorce case can be broken down into three categories, visual these categories as three buckets. The first bucket will divide your marital estate, including all assets and debts.  The second bucket deals with custody and parenting plans.  The third bucket contains orders of child support and/or alimony if it applies.  

What is the timeline/court process in a divorce?

There are many ways to fill the three buckets.  If you and your spouse are committed to settle the case without having to go into court, this is referred to as alternative dispute resolution (ADR).  
There are many forms of ADR including mediation and collaborative law.   If you are able to settle your divorce without court intervention, you and your spouse have control on the terms of the agreement, or how the buckets are filled.  Once you submit your settlement documents, the court usually takes 4-6 weeks to approve the agreement.  In the event the court has questions, you may have to go to court.  However, in most cases, people who settle never step inside a courtroom.  

In the event you cannot settle your case using an ADR method, you and your spouse give up your control over your case and let a court will decide how to fill the buckets. This is done in a series of hearings.  

If a petition for divorce is filed, the parties will be ordered to attend a first appearance.  At the first appearance a judge or marital master will explain the divorce process and encourage mediation.  In most cases with children, the court will order a mandatory mediation.  If the case does not settle in a court-appointed mediation, the court will usually schedule the case for a temporary hearing.

At a temporary hearing, the court will issue “temporary orders”.  These are court orders that are in place during the duration of the divorce process.  These temporary orders usually encompass who will live in the marital home, whether support will be paid and a parenting plan.
In most cases, if there are no motions filed, the court will next schedule a pretrial.  At the pretrial, the court will schedule the date for your final hearing (trial) and address discovery deadlines.  

At the end of the trial, the court will issue orders usually two to three months later.  If you believe the court erred in the law or facts of the case, you can file an appeal within 30 days to the New Hampshire Supreme Court.

Attorney Connolly has helped hundreds of clients through the divorce process.  She is a board-certified family trial law specialist by the National Board of Trial Advocacy.  She is the only family law attorney in New Hampshire with this accreditation.  Attorney Connolly is also certified in the area of collaborative divorce.  She has successfully represented countless clients in mediation, collaborative meetings and trial.

Attorney Connolly has successfully litigated and negotiated favorable resolutions for her clients in post-divorce matters.  In 2016, she successfully argued to the New Hampshire Supreme Court that her client’s inheritances acquired after the court issued a divorce decree was not a marital asset subject to division.

Financial Support Modifications

Often times, people need a family lawyer long after a court order issues.  The most common examples are requests to modify a parenting plan, child support, and/or alimony.  In rare cases, a person may seek to reopen a finalized divorce decree.  The legal standard to modify existing orders are specific to the type of case you have.  It is important that the attorney you hire knows these differences so that your strongest case is presented to the court or mediator.
Child support can automatically be reviewed after three years, a substantial change in circumstances or if a minor is emancipated. In New Hampshire, a child is emancipated at the age of 18 or when the child graduates high school, whichever occurs later.   In all three instances the parties should exchange financials and recalculate the guidelines based on the New Hampshire child support calculator.  A new uniform support order will need to be submitted to the court that issued your original order.

In alimony cases, the person seeking to modify alimony must demonstrate that a substantial change in circumstances has occurred which makes the current alimony order unfair. Importantly, if your original alimony award was a result of negotiations between you and your former spouse, a change that was foreseeable and anticipated at the time the alimony order was agreed upon cannot be considered a “substantial” change.  For example, if you mediated an alimony payment of $500.00 a month, for five years and you knew at the time that you were going to retire the following year, you cannot move to terminate alimony when you retire and argue that your income is less.

A parenting plan can be modified if there are factors present in your case. The reasons for modifying a parenting plan can be found in the RSA 461-A:11.  Interestingly, New Hampshire courts do not allow parenting plan modifications because the change would be in the child’s best interest. Instead, the argument to change the parenting plan needs to be based on the very specific factors listed in the law.

Typically, a court order that divides property and debt in a divorce is considered final and cannot be modified.  There are certain exceptions to this rule, but there are only a few.  For this reason, it is important that prior to signing any final divorce paperwork you seek the advice of an attorney.
The issue of relocation can arise during or after the divorce or custody case.  If you are considering relocating, you have to notify the other parent within 60 days prior to moving.  If the other parent objects to the relocation, he/she needs to file a pleading with the court stating the objection.  If the pleading is filed, you cannot move absent a court order.  Because of the time- sensitive nature of relocation cases, it is important to contact a lawyer immediately if you have questions about the process.

Attorney Connolly has successfully litigated and negotiated favorable resolutions for her clients in post-divorce matters.  In 2016, she successfully argued to the New Hampshire Supreme Court that her client’s inheritances acquired after the court issued a divorce decree was not a marital asset subject to division.