New Law Aims to Make Divorce Easier on Children
Parental Rights and Responsibilities Act takes effect October 1
Divorce is hard on everyone, but especially children. Getting tangled
up in the legal system can be confusing and can lead to wars between
parents, where there are “winners” and “losers” of
the divorce. What’s really best, however, is when both parents
feel they have won, because this promotes better outcomes for children.
The laws that regulate a state’s divorce procedures can contribute to whether or not parents come out feeling like winners or losers. In the best of cases, the state legislature can provide guidelines on how to make divorce less adversarial. The state of New Hampshire recently has done just that. The State’s Task Force on Family Law has revamped the laws that regulate divorce procedures in the state of New Hampshire. The Parental Rights and Responsibilities Act, which will take effect October 1, changes substantially how the state of New Hampshire approaches divorce.
In the best interests of the child
Weighing what is “in the best interests of the child” has
served as the foundation of all child custody decisions since the early
1970’s. Most states outline how to determine what is in the best
interests of children, and now New Hampshire will as well, using criteria
that include:
- The relationship of the child with each parent
- The ability of each parent to provide the child with love, affection and guidance
- The ability of each parent to ensure that the child’s basic needs are met
- The child’s developmental needs and the ability of each parent to meet them
- The ability of each parent to support a relationship between the child and the other parent and to foster frequent and continuing contact with that parent
- The ability of the parents to communicate with each other
- Evidence of family violence or maltreatment
Language
Enter a New Hampshire courtroom in the near future, and you may be surprised
by the language being used. Like many other states, New Hampshire has
abandoned value-laden terms, such as sole physical custodian,
in favor of more neutral terms, such as residential responsibility, when
talking about with whom the child lives. Below are the new terms and
the old terms they replace:
- Parental rights and responsibilities: This term replaces the old concept of “custody,” setting forth what rights parents enjoy as parents and what responsibilities the state expects them to meet. It specifies the role each parent will have in making decisions about the children and providing financial support for them.
- Decision-making responsibility: This term replaces “legal custody” and refers to who is legally empowered make substantive decisions about the children’s lives.
- Residential responsibility: This term replaces the old phrase “physical custody.” This new term addresses parents’ responsibilities to provide a home for their children.
- Parenting schedule: This term, adopted by other states as well, replaces the word “visitation.” States and court systems usually adopt this new language, because they want to make sure that “fit parents” never become visitors in their children’s lives. This new language suggests that parents are both permitted and expected to remain parents.
Joint decision-making responsibilities
The new law retains the old presumption that, except in cases of family violence
or other forms of maltreatment, parents will adopt joint decision-making responsibilities
for their children. To read more about shared parenting visit the Web sites
of the Children’s Rights Council or
the Shared
Parenting Information Group. Both of these
resources provide fairly gender-neutral information about joint parenting.
Educational seminars for parents
The new law also retains the old mandate that parents who are divorcing
and facing child custody or child support issues must attend an educational
child impact seminar before their case can be heard in court. This
program, called Children First, broadly addresses how divorce and parental
separation affects children. For more information about this program
and for a scheduling of its offerings around the state, visit the Web
site of Behavioral
Health Network.
Mediation
Under the new law, if parents can’t come to an agreement about
the terms of their divorce, the court can order the divorcing couple
to seek assistance from a mediator.
The law doesn’t mandate all disputing couples to use mediation,
but specifies that each case be handled on a case-by-case basis. Of course,
any couple can voluntarily use mediation if they are having trouble coming
to a resolution of their divorce agreement.
For more information about mediation, see this recent issue of Bar Journal of the New Hampshire Bar Association or visit the family section of Mediate.com.
Parenting plans
In many states across the nation, parents are being encouraged to develop
a detailed plan for the remainder of their children’s childhoods.
The recently adopted New Hampshire divorce law encourages, but does
not mandate such plans.
Parenting plans outline how parents will co-parent together and who will be responsible for what. Such a plan is much more specific than a traditional divorce decree and typically includes:
- Decision-making responsibility and residential responsibility for each parent
- A plan for communication, that includes how parents will gain access to and share information about their children
- The child’s legal residence (for school mailings, tax notices, medical provider communications, etc.)
- Parenting schedules, meaning when children will see each of their parents
- Responsibility for what transportation and when
- Procedures to be followed if one of the parents relocates out of the immediate area
- Details of how the plan will be modified in the future
- Guidelines for how disputes will be handled and resolved
In a nutshell, parenting plans are intended to head off future problems. The New Hampshire Bar Association offers a link to good information (from the Massachusetts Bar Association) on how to develop a parenting plan.
For more information
- The final report of the New Hampshire Task Force on Family Law
- Parental Rights and Responsibilities Act
- Helping Children Cope with their Parents’ Divorce
By Emily M. Douglas, Ph.D., UNH Cooperative Extension, assistant extension professor and family education & policy specialist
