Co-written by: Jeanmarie Papelian
September 2005
Divorce is an emotionally charged event which changes, on a fundamental level, the way in which parents deal with their children and each other. When contemplating divorce or starting the process, most people feel disoriented and overwhelmed. This article will answer several frequently asked questions relating to children in divorce, and will address some of the dramatic changes in state law set to take effect in New Hampshire on October 1, 2005. The new law eliminates the term “custody,” for instance, from the legal vocabulary, replacing it with “parental rights and responsibilities.” The purpose of the changes is to New Hampshire’s family courts more approachable; the process less adversarial; and increase focus on the best interest of children.
Question 1: My spouse and I cannot agree on a settlement, but one thing we can agree on is that we want to avoid dragging our children through a nasty court battle. What are our alternatives?
There are many methods of resolving parenting issues in divorce which do not require heart wrenching and costly court battles. Some divorcing couples are able to set their differences aside long enough to reach agreements through informal negotiations. In the absence of such an agreement, the new statute allows courts to order divorcing spouses to mediate disputes about parental rights and responsibilities. The court will designate a certified marital mediator. The mediator is a neutral third party whose role is to facilitate settlement discussions between the parties. Parties to a divorce can decline the court’s referral to a marital mediator by choosing an alternative method of dispute resolution, such as collaborative law or private mediation with a neutral individual selected by the parties and their lawyers. (For more information about collaborative divorce, visit www.collaborativelawnh.org).
Question 2: What is a parenting plan?
A significant guide in the new statute, the parenting plan is a written document describing each parent’s rights and responsibilities. A plan must be filed in every divorce case involving minor children. The court strongly encourages parents to agree upon the terms of their parenting plan. Parenting plans will address key issues, including decision making responsibility, residential responsibility (i.e. the parents’ responsibility to provide a home for the child), information sharing, telephone and/or email communication between parents and children, the parenting schedule, transportation and exchange of children, and relocation of either parent. The plan should also include a procedure for future review and adjustment of the plan, as well as a method for resolving future disputes.
Question 3: What sort of parenting schedules should we consider?
There is no one size fits all approach to parenting schedules. Some parents assume that a 50/50 schedule is “fair”. But while seeming “fair” to the parents, such a schedule may not be appropriate for every child for every set of parents, nor will it automatically result in an adjustment of child support. If parents are unable to agree, then the court will apply the “best interest of the child” standard in determining the parenting schedule. Some factors to be considered include each parents’ relationship with the child and his or her support for the other parent’s relationship with the child, each parent’s ability to provide a safe and healthy environment for the child, the child’s developmental needs, and the ability of the parents to communicate and cooperate with one another and make joint decisions concerning the children. Parents negotiating the terms of a parenting plan should consider the same factors that would be applied by a court.
Question 4: We tried mediation, but we still can’t agree to a parenting plan. What happens next?
The court will likely appoint a guardian ad litem (GAL) to represent the interest of the child. Typically the GAL will meet with the parents, the child, and other significant persons in the child’s life, such as caregivers, counselors or physicians. The GAL will then submit a report to the court with recommendations concerning the allocation of parental rights and responsibilities.
If the parties do not agree to adopt the GAL’s recommendation into their parenting plan, then the court will schedule a trial. Each party will be given the opportunity to present evidence and arguments in support of his or her position on disputed issues. The court will ultimately issue a written decision which is binding upon the parties.
A trial on parenting issues should only be considered as a last resort. Courtroom battles are expensive and unpleasant. Judges, while conscientious and well intentioned, will spend only a matter of hours with each case before imposing a schedule which will control the parties’ lives for a long time. Although it may be difficult for parties going through a divorce to reach an agreement, the statistics show that people are more satisfied when their parenting plan is achieved between themselves through compromise and agreement than when it is dictated by the court.
Margaret Kerouac practices domestic relations law in the litigation group law firm of McLane, Graf, Raulerson & Middleton, P.A. She can be reached at 603.628.1330 or at mkerouac@mclane.com. The McLane Law Firm is the largest full-service law firm in the State of New Hampshire, with offices in Concord, Manchester and Portsmouth. Co-authored by Jeanmarie Papelian.