Modification after Muchmore

June 1, 2010

(As published in the Spring 2010 issue of the New Hampshire Trial Bar News)

 I.  Introduction


This article will review current New Hampshire law governing modification of parental rights and responsibilities, explore changes from prior law and analyze the New Hampshire Supreme Court’s interpretation of RSA 461-A in the recent matter of Muchmore and Jaycox.

II.  RSA 461-A

RSA Chapter 461-A took effect in New Hampshire on October 1, 2005.  Designed to make New Hampshire’s family courts more approachable and less adversarial, it eliminated the terms “custody” and “visitation” from the legal vocabulary.  The goal of these changes was to avoid battles over the “prize” of custody.  The statute’s stated goal is to provide for the stable and meaningful involvement of parents in their children’s lives.  Thus, it aims to ensure frequent and continuing contact between each child and both parents, parental sharing of child rearing rights and responsibilities, and development of a parenting plan by parents to raise their children.
According to the statute, the parenting plan created by the parties (or the court, in the absence of agreement) should describe each parent’s rights and responsibilities and address, among other things, a procedure for review and adjustment of the plan.   The statute announces its purpose to “grant parents and courts the widest discretion in developing a parenting plan”   and states that in allocating rights and responsibilities between the parents, it will examine the best interests of the child.  It details factors for the court to consider in determining the best interests of a child.   Application of the best interests standard is consistent with prior New Hampshire case law.

RSA 461-A:11addresses modification:
I.  The court may issue an order modifying a permanent order concerning parental rights and responsibilities under any of the following circumstances:

 (a)  The parties agree to modification.
 (b)  If the court finds repeated, intentional, and unwarranted interference by a parent with the residential responsibilities of the other parent, the court may order a change in the parental rights and responsibilities without the necessity of showing harm to the child, if the court determines that such change would be in accordance with the best interests of the child.
 (c)  If the court finds by clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment.
 (d)  If the parties have substantially equal periods of residential responsibility for the child and either each asserts or the court finds that the original allocation of parental rights and responsibilities is not working, the court may order a change in allocation of parental rights and responsibilities based on a finding that the change is in the best interests of the child.
 (e)  If the court finds by clear and convincing evidence that a minor child is of sufficient maturity to make a sound judgment, the court may give substantial weight to the preference of the mature minor child as to the parent with whom he or she wants to live.  Under these circumstances, the court shall also give due consideration to other factors which may have affected the minor child’s preference, including whether the minor child’s preference was based on undesirable or improper influences.
II.  For the purposes of this section, the burden of proof shall be on the moving  party.

III. In the Matter of Muchmore and Jaycox
The December 2009 Supreme Court decision in Muchmore and Jaycox laid bare a change in the law not immediately apparent to many practitioners upon the enactment of RSA 461-A:  namely, a change in the standard for modification of the parenting schedule, or “visitation.”  Prior to the enactment of 461-A, different standards applied depending upon whether a parent sought an award of custody, modification of a permanent custody decree, or modification of a visitation schedule.   In seeking to modify an existing visitation schedule, a parent previously had to show only that such change was in the best interests of the child.   By contrast, modification of custody was subject to a more rigorous standard.
In the Muchmore decision, the New Hampshire Supreme Court clarified that the enactment of RSA 461-A superceded the system of multiple standards for modification  developed under prior caselaw.  Modification of any existing parenting order is now governed solely by RSA 461-A:11, which did not incorporate New Hampshire’s previous common law standard for modification of visitation.
The Muchmore case was an appeal from the Lebanon Family Division.  The parties’ daughter was born in September 2006.  At that time, the parties lived in Vermont.  They entered into a stipulation addressing their parenting rights which was filed with and approved by a Vermont Court.  That order granted the respondent/mother “primary legal and parental rights and responsibilities” to the child and allowed the petitioner/father weekly visits.  The stipulation and order stated that either party could petition to modify the parenting schedule when the child was between the ages of 3 and 4.
In July 2008, prior to the child’s second birthday, the father moved to domesticate the Vermont order in the Lebanon Family Division, as both parties and the child had moved to New Hampshire.  He also moved to modify the stipulation pursuant to RSA 461-A.  Although the father’s petition asserted that he was entitled to modification under 461-A:11, I, by the time a hearing was held he conceded that the evidence did not support the criteria set forth in that section of the statute.  Nevertheless, the father argued that he was entitled to modification of the schedule of “visitation” upon a showing that such modification was in the child’s best interest.  In support of his position, he cited opinions issued by the NH Supreme Court prior to the enactment of RSA 461-A, and the following language of RSA 461-A:4, I: 
In any proceeding to establish or modify a judgment providing for parenting time with a child, except for matters filed under RSA 173-B, the parents shall develop and file with the court a parenting plan to be included in the Court’s Decree.  If the parents are unable to develop a parenting plan, the court may develop it.  In developing a parenting plan under this section, the court shall consider only the best interests of the child as provided under RSA 461-A:6 and the safety of the parties. 

 The Lebanon Family Division agreed with the father that pursuant to RSA 461-A:4, proof that modification was in the child’s best interests was all that was sufficient to modify the weekly parenting schedule.  An appeal followed.
In its order issued December 4, 2009, the New Hampshire Supreme Court (Dalianis, J.) notes that RSA 461-A:4 is silent as to when a parent may seek to modify a parenting plan.  It concludes that the only circumstances in which a parent may seek to modify a parental plan are those described in RSA 461-A:11.  If none of the enumerated criteria are present, then the court has no discretion to modify a parenting plan.  If one or more of those criteria are present, then consistent with 461-A:4, the court will apply a best interests standard to appropriately modify the plan. 

IV.  Assessing a Modification Claim Post-Muchmore
Faced with a modification standard that seems to close doors previously thought to be nailed open, lawyers should view the language of RSA 461-A:11 expansively.  If we shed the previous concept of “circumstances have changed such that there exists a substantial likelihood of harm,” and instead apply the standard of  “the child’s present environment is detrimental to the child’s physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in the environment,” we can perhaps re-open the doors, and even seek modification relief where it was not previously available. There is now no difference between the standard for modification in a shifting residential rights case and a case involving the shifting of a schedule without a change in residential rights, except with regard to the measure of harm that may be experienced with a proposed change.
In evaluating a potential case, first read the purpose clause of RSA 461-A.  It aspires to a parental environment that many divorcing couples achieve only with great difficulty and many errors in judgment. That said, the aspirational standard can help you develop the theme of your case if you are, for instance, attempting to alter a parenting schedule to increase parenting time as a child has grown.
If the facts of your case support a more limited role for one or the other parent, be prepared to demonstrate that “meaningful involvement” is not unfettered involvement or even “frequent and continuing contact” in, for example, a high-conflict case with a toxic parental dynamic that filters down to a child.  
Next, read the guidelines for initial decision-making, RSA 461-A (I).  The factors contained therein are the road map for judges and marital masters in making that first all-important determination, but consider whether they can be used after that initial decision when the question of modification arises and the court needs to determine whether the child’s present environment is detrimental to the child.  The legislature enunciated these factors to provide an objective assessment of each parent’s ability to create a healthy environment for a child. 
Measure the facts of a presenting case against the factors set forth in the guidelines.  If there is a significant variance from one or more of the factors, consider whether that variance or set of variances gives rise to a detrimental environment for the child.

V.  Navigating Change in a Child’s Parental Environment
Legislatures and courts across the country strive for certainty and stability for children; most are still struggling with the balance between children’s needs and parents’ rights. Statutes and cases often articulate contradictory standards and values as our culture evolves and our understanding of the impact of parental separation on children. We need to move forward to an objective child-centered standard for the modification of the court-sanctioned set of stipulations or orders now referred to as Parenting Plans. This portion of the article is intended to raise issues and suggest pathways to take in the modification of parenting plans under the newly identified constrictions of RSA 461-A:11.
Consider In Re Larue, 156 N. H. 378 (2007), in which the court observed that the legislature intended contract principles to apply in determining whether the parties have agreed to a modification pursuant to the statute, indicating the first steps to a limitation on the court’s power to alter a parenting plan. Contrast Larue with Chandler v. Bishop, 142 N.H. 404 (1997) that states, “Child custody and visitation orders are not contractual in nature despite the fact that they may incorporate a contractual arrangement between the parties.” While the legislature may have refined the language of modification, arguably there is no evidence that the removal of the parenting issues from the divorce document to a newly created Parenting Plan was intended to make the plan any more (or less) a contract than the stipulations contained in a final divorce decree that established parental decision-making authority, residence of the child, schedule of parent-child contact, and other child-related provisions.
Troxel v. Granville, 530 U.S. 57 (2000)  cites Parham v. J.R., 442 U.S. 584 in holding that “There is a presumption that fit parents act in their children’s best interests.” Would that it were true, but it is not. We are human. We have issues. Parents may be entirely fit and still be quite wrong about the best interests of their children.  Even when parents recognize that one path may be better than another, a perfectly fine, fit parent may still opt for the path that serves their own desires.  If it were true that fit parents almost always act in the best interests of their children, we would have few, if any, contests around parenting and no sugar-laden cereals on the shelves of our grocery stores.
Has the legislature overstepped the bounds of parens patriae in restricting the court’s ability to consider schedule modifications only to those cases where harm or interference exist?  Advocacy in the face of a restrictive environment for change requires that we define and identify what is meant by “detrimental environment” as it pertains to the case at hand.  If an infant’s frequent passing between two homes that were previously close but now far apart may or may not give rise to a “detrimental environment,” not because the child is being harmed, but because the child . There may be no “fault” here, no unfit parent, and no present evidence of harm.  Must the court leave the child to a now-unwise schedule if one parent wishes to act in the child’s best interests and the other prefers to leave the schedule alone?  Did the legislature intend to strip a parent of the right to advocate for a child’s best interests?     
Consider the thirteen year old boy who is suddenly in love with robotics after years of doing nothing but watching television and slouching around the house in his bathrobe.  What happens if the robotics team meets on Saturdays, and the schedule calls for him to be two hours away?  If one parent refuses to be flexible, does that create a detrimental environment?  
In finding that there is a detrimental environment, the court may then identify the scope of the detriment and fit the remedy to the problem, not with broad changes, but minor adjustments, just as the legislature envisioned.   
Parental fitness is relative, contextual, and subjective. A parent who is clearly unfit to care for a child can nevertheless be capable of enormous personal sacrifice in favor of a child’s need for stability and certainty.  One has only to sit with a sobbing young father who is voluntarily signing away his rights to his child because he lives in his car and has a drug habit to understand that parental love is complicated. 

VI.  Drafting Issues Post Muchmore
The Muchmore decision’s applicability to New Hampshire parenting plans is somewhat limited because the underlying agreement and order at issue originated in a Vermont Court.  It did not follow the format prescribed by RSA 461-A:4(II) and therefore did not include the section required by 461-A:4(II)(g), addressing a procedure for review and adjustment of the plan.  However, the parties in Muchmore did agree in the underlying stipulation that review and adjustment of their plan would be appropriate when their child was between the ages of 3 and 4.  As the child had not reached age 3 when the litigation was commenced, the New Hampshire Supreme Court did not address whether the inclusion of such language was sufficient to trigger modification under New Hampshire law.
Although the Supreme Court has made plain that in the absence of the statutory trigger, no modification or adjustment to a preexisting parenting plan can be considered by the family division, the statute also purports to grant parents wide discretion in developing parenting plans, and requires the parties to create a procedure for review and adjustment of such plans.  Although Muchmore doesn’t specify whether a review contemplated by a parenting plan is a trigger sufficient for the Court to modify the parenting plan in accordance with the child’s best interest, such an interpretation seems consistent with the statute’s expression of intent.  Practitioners drafting parenting plans should be very cautious in specifically addressing any procedure for review and adjustment of the parenting plan, including identifying any milestone events in the child’s life which the parties agree may be sufficient to warrant review and possible modification.  Larue states that court may issue an order modifying a permanent order concerning parental rights and responsibilities when parents agree to a modification. If contract principles do, indeed, apply in determining whether the parties have agreed to a modification, look first to the parenting plan signed by the parties.  The language of a given plan reflects an agreement between the parties to which they are now contractually bound; if there is an agreement within the plan to make later changes, even if the changes are not specified in the parenting plan, there is an argument to be made that the court should consider such change even without a showing of “detrimental environment.”  In the Muchmore case, there was an agreement that the parties would modify when the child was four years old; the parent seeking change tried to modify when the child was two.  Because the court did not discuss whether the result would have been different had the child been four, this issue is still open.  
If the language of the parenting plan is that the parties will submit unresolved disagreements to a neutral third party before turning to the court for resolution, there is an implied agreement that the court can and should hear those unresolved issues based on the best interests of the child. 
Consider the language now appearing on the court’s forms, as follows: “As the child(ren) get older, their individual interests may impact the parenting schedule set forth in this parenting plan. Each parent shall be flexible in making reasonable adjustments to the parenting schedule as the needs and interests of their maturing children require.”
If both parents signed on to the above parenting plan language, and the court so approves, consider the argument that the parents are bound by their contract to be flexible in making such adjustments.  Another argument for modification absent interference or harm may be that the parents agreed, if not to the specifics of a modification, to the concept of modification without the need for showing interference, detrimental environment or an equal schedule that is “not working.”
If there is no language concerning an agreement to modify at some future time, the moving parent must convince the court that the present environment is detrimental to the child’s physical, mental, or emotional health and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in the environment.  What does “present environment” mean?  Is it the environment within one home or the other, or is it the parenting environment created by the parenting plan?  Consider whether a parenting environment affected by tension, disagreement or outright hostility (on both sides, perhaps) is a detrimental environment that requires modification if only to settle the matter one way or another.  In re Choy, N.H., the court found that the child was impacted by the hostility expressed by his father.  No expert seems to have been involved; the court saw the father’s actions as harming the child’s relationship with his mother as a given. 
In the domestic relations practice, it is all too common to see how our statutory child support scheme encourages behavior by the parents which is contrary to the best interests of the children.  Because the statute includes a link between the amount of support paid and the proportion of time spent with a child, the debate over child support can poison discussions of parenting time, making parenting issues more difficult to resolve.  As one marriage and family therapist has written, “the days and hours of `the children’s` future lives become tools for one parent to extract payment from the other.  This is a recipe for warfare, with the children’s well-being both the disputed turf and the likely casualty.” 
It follows that a small detriment in the environment of the child may justify only a minor change to a schedule that will cause less harmful disruption to the child, whereas a serious detriment in the environment will support a greater change and, therefore, the harm to the child must be weighed more carefully.  Courts may be inclined to find and remedy a detriment in the environment of the child (for example, the detrimental impact of hearing parents fight over the phone, or coming home so late on a Sunday night that Monday morning is a disaster in school) if parents seek a solution for the problem that is the least disruptive to the rest of the plan.