HB 571 - AS INTRODUCED
1999 SESSION
HOUSE BILL 571
AN ACT relative to joint legal and physical custody of children.
SPONSORS: Rep. Bickford, Straf 1
COMMITTEE: Children and Family Law
This bill provides the option of joint legal and physical custody after divorce or separation. It imposes a rebuttable presumption that joint legal and physical custody is in the child's best interest, provides a court-ordered mandate that both parents retain full parental rights and responsibilities, and protects the child's right to spend significant amounts of time with each parent.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
99-0578
04/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord One Thousand Nine Hundred and Ninety-Nine
AN ACT relative to joint legal and physical custody of children.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Subdivision; Joint Physical and Legal Custody. Amend RSA 458 by inserting after section 52 the following new subdivision:
Joint Physical and Legal Custody
458:53 Purpose; Intent. The legislature recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless clearly shown, in a particular case, to be detrimental to the child. The legislature further recognizes the importance of each parent and the inalienable right of each parent to be actively and meaningfully involved in their child's upbringing and that this right shall remain inviolate. In furtherance of this recognition, the legislature finds and declares that it is the policy of the state to assure that minor children have a frequent and continuing relationship with each parent on a shared basis whether or not the marital status of the minor child's parents is in question. In order to effectuate these important policies, the right of each child to have significant amounts of time with each parent shall be protected, the practice of one parent becoming a "visitor" in the child's life should be minimized, and both parents should recognize the importance of each other for the highest possible level of development, care, and growth of their minor children on a shared basis.
458:54 Applicability. In addition to the foregoing provisions of this chapter, this subdivision shall be applied to the parties or the court in any proceeding involving the custody of a minor child or children, as an alternative procedure for determining the legal and physical custody of a child or children. Nothing in this subdivision shall be construed to limit or negate any provision of this chapter.
458:55 Definitions. As used in this subdivision:
I. "Joint legal custody" means that the parents have voluntarily allocated, or the court has decreed between the parents, the decision-making rights, responsibilities, and authority relating to the health, education, safety, and welfare of a child.
II. "Joint physical custody" means an order awarding each of the parents a custodial time allocation of no less than 35 percent or 130 days per year with the child, where the child resides with or is under the direct, day-to-day care and supervision of each of the parents.
458:56 Joint Legal and Physical Custody.
I. Except as provided in paragraph II, in the making of any order relative to such custody there shall be a presumption, affecting the burden of proof, that joint legal and physical custody is in the best interest of minor children:
(a) Where the parents have agreed to an award of joint legal and physical custody or so agree in open court at a hearing for the purpose of determining the custody of the minor children. If the court declines to enter an order awarding joint legal and physical custody, the court shall state in its decision the reasons for its denial.
(b) Upon the application of either parent for joint legal and physical custody, in which case it may be awarded in the discretion of the court. For the purpose of assisting the court in making a determination whether an award of joint legal and physical custody is appropriate under this section, the court may appoint a guardian ad litem to represent the interests of the children according to the provisions of RSA 458:17-a. If the court declines to enter an order awarding joint legal and physical custody, the court shall state in its decision the reasons for its denial.
II. Where the court finds that abuse as defined in RSA 173-B:1 has occurred, the court shall consider such abuse as harmful to children and as evidence in determining whether joint legal and physical custody is appropriate. In such cases, the court shall make custody and visitation orders that best protect the children or the abused spouse or both. If joint legal and physical custody is granted despite evidence of abuse, the court shall provide written findings to support its order.
458:57 Order of Preference.
I. Unless otherwise agreed to by the parents of the minor child as provided in RSA 458:17, II, the court, in making a joint legal and physical custody determination, shall rule in accordance with the following factors, in descending order of importance:
(a) The stability of each proposed home and household, the success the children have enjoyed in each home, and the physical and emotional health of each parent. If the child is of an appropriate age, the court shall consider the preference of the child.
(b) The ability and willingness of each parent to foster a healthy and supportive relationship between the child and the other parent, including allowing the child to have regular and frequent contact with the other parent.
(c) The devotion of the parent to the best interest of the child.
(d) The willingness and desire of each parent to provide food, clothing, shelter, and other needs of the child. For the purposes of this subparagraph, the willingness to provide is more important than the ability to provide.
II In the event the court determines that neither parent is fit to care for a child, the child may be placed with the department of health and human services under the provisions of RSA 458:18.
458:58 Joint Legal and Physical Custody Awarded.
I. The parents may determine who shall provide the primary residence for the child or children. If the parents are unable to agree, the court may determine who shall provide the primary residence.
II. Neither parent shall be designated as the primary, secondary, custodial, or non-custodial parent.
458:59 Parental Duties and Responsibilities. Each parent shall have the following duties and responsibilities, any or all of which, at the court's discretion, may become part of the court's decree:
I. Each parent shall make daily decisions regarding the child's care, maintenance, and welfare during his or her respective time of custody and as is otherwise practical. The parents shall consult with one another on questions related to religion, discipline, financial matters, moral training, social and recreational activities, and non-emergency medical and dental care. Each parent shall assume an active role in the moral, social, economic, and educational
development of the child while resolving disputes amicably when such disputes arise.
II. Each parent shall promptly notify the other of any serious illness or accident affecting a minor child.
III. Each parent shall have total access to all records and information pertaining to the minor children, including, but not limited to, medical, dental, and school records.
IV. Each parent shall be permitted to authorize emergency medical treatment for a minor child.
V. Each parent shall ensure, to the extent possible, that a minor child is permitted unrestricted contact and open access with the co-parent. Both parents shall strive to preserve the child's right to frequent and continued access to the other. Each parent shall make reasonable efforts to encourage and facilitate communication with a minor child.
VI. Neither parent shall relocate to another school district without the written consent of the other parent, or without obtaining relief from the court. In cases where parents have joint legal and physical custody of a child, and one parent seeks to relocate with the child, decisions regarding modification of custody shall be based on the best interest of the child.
458:60 Modification of Prior Decrees. Modifications of custody decrees issued prior to the effective date of this subdivision shall be subject to the provisions of this subdivision.
2 Effective Date. This act shall take effect January 1, 2000.