From the Family Law Letter: Child Custody

Questions & Answers:

What’s the difference between physical and legal custody?

Physical custody means the right and responsibility to provide a child’s primary residence. Legal custody means all parental rights with the exception of physical custody (RSA 458:17). This means the right and responsibility to make legal decisions for a child about important matters such as education, health care, religion, and general welfare, and includes the right to access information like school and medical records.

New Hampshire courts are required to decide custody based on the best interest of the child. Usually, joint legal custody is in the child’s best interest. When the court orders joint legal custody, both parents have the right to make legal decisions for the child and are expected to cooperate in making those decisions.

When parents are unable to cooperate the court may award sole legal custody to one of them. Moreover, if the court finds that abuse has occurred, it may find joint legal custody inappropriate and make custody and visitation orders that protect the children, the abused spouse or both.

It is common for New Hampshire courts to award primary physical custody to one parent and secondary physical custody to the other. In this case, the child would reside in the home of the parent with primary physical custody and the other parent would see the child on a regular schedule.

Less frequently, when both parents have been very involved in their child’s life and are committed to working together long term, they may agree to share joint physical custody. In this case, the child would spend comparable amounts of time at each household, commonly alternate days or weeks. To share joint physical custody, parents have to commit to living close together to make transportation to school practical for each of them.

Courts will typically approve any reasonable custody arrangement parents agree on. If a dispute arises, the court may appoint a guardian ad litem to make recommendations as to what arrangements will serve the child best. If a child is old enough to express a preference, the court may consider that too. The court will generally award primary physical custody to the parent who has been the primary caretaker prior to filing for divorce. By statute, there is no gender preference for one parent over the other. Under certain circumstances the Court may award primary physical custody to a stepparent or grandparent if that is in the child’s best interest.

Since stability is important for children, New Hampshire courts are reluctant to change physical custody after issuing a permanent order. A court-ordered change generally requires a showing of a “strong possibility of harm” to the child. This is the highest standard in the country, and difficult to prove.