For a very long time, “custody” and “custodial rights” or “visitation” were words used to describe a parent’s right to spend time with their child. One parent would often have “primary custody” and the other parent would have “visitation.” On rare occasions, the parents would have “joint custody.” Since 2005, New Hampshire has stopped using the words “custody” and “visitation”. Instead, those words have been replaced with the more generic term: parenting rights and responsibilities. As defined by statute, parenting rights and responsibilities are “all rights and responsibilities parents have concerning their child”. (RSA 461-A:1, V). Any provision in the law that refers to “custody” of a child now means the allocation of parental rights and responsibilities pursuant to RSA 461-A. (RSA 461-A:20).

Not only has the statute removed the words “custody” and “visitation,” the statute specifically states that neither party will have the child reside with him/her as a “primary residence” and neither parent will have “primary residential responsibility” or “custody” or be called the “primary residential parent.” (RSA 461-A:4, VI). The goal of the legislature in removing those words and designations is an attempt to reduce litigation. Words like custody are akin to ownership. We don’t own our children. Grandparents visit their grandchildren, parents do not. Parents “parent” their children.

In short, the answer to the question posed is “no,” you cannot have “custody” of your children. You can have parenting time with your children. How much parenting time and on what schedule you see your children is up to you and the other parent to determine, by agreement, based on your schedules, the children’s schedules, etc. A mediator will be appointed to help you to discuss and reach agreement on an appropriate parenting plan for your children. If you and the other parent cannot agree, even with the help of a mediator, a Judge will make the decision for you.

There is a common misconception that the law now requires equal parenting time with both parents. That is not the case. RSA 461-A:2 states that children do best when both parents have a stable and meaningful involvement in their children’s lives, and therefore, unless it is shown to be detrimental to the children, each parent will have “frequent and continuing contact” with the children. The law also supports both parents sharing in the rights and responsibilities of raising their children. If parents cannot decide an appropriate parenting schedule for their children, the Court is required to consider the best interests of the children applying a list of factors set out in the statute. (RSA 461-A:6).

If you have questions about your parenting rights and responsibilities, contact one of the experienced attorneys at Parnell, Michels & McKay, PLLC. We can help you to understand the best interests standard, and help you to think about the factors the Court will consider in making these very important decisions for your children.