Saturday, May 31, 2014

Can a Child Choose the Parent they want to live with in a New Hampshire Divorce?

There is an old "parents" tale that a child can choose the parent to live with during or after a divorce if the child is thirteen years old. In New Hampshire family law statutes, there is no bright line rule that at a certain age the child can choose. New Hampshire bases the overall decision of parental rights and responsibility (custody) on the “best interest of the child” standard N.H. Rev. Stat. § 461-A:6, I (a-l). There are twelve factors that the court must consider in making its parental rights and responsibility (custody) decision. A child’s preference and the weight given to the preference is in N.H. Rev. Stat. § 461-A:6, II, and a factor that the court can consider in making parental rights and responsibility decisions.

N.H. Rev. Stat. § 461-A:6, II provides
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 determination of parental rights and responsibilities. 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.

The statute says the child must be of “sufficient maturity to make a sound judgment” and not a preset age. The family law judge may give “substantial weight” to the child’s preference in making a decision on parental rights and responsibilities (custody). However, the court must also consider whether the child’s preference is genuine and free from influence.

It is a warning to parents not to influence the child. Improper ways a parent could influence their child is by promising them gifts like cars, i-phones, or clothes. The parent could also promise special privileges like not having to do chores, longer curfews, or more lenient rules. The parent that attempts to influence the child may also discourage a relationship with the other parent.

Instead of manipulating or bribing a child, parents should be parents by meeting the other factors that are in a child’s best interest like

  • Provide for a child’s physical needs –food, shelter, and a safe environment.
  • Provide for a child’s emotional needs-love, affection, and guidance through discipline and realistic rules.
  • Support your child in development of their talents and interests, relationships with friends and others, and a connection to their community and school.
  • And always promote your child’s relationship with the other parent.

The court will look at all these factors in addition to the child’s preference. Moreover, a child raised in an environment where the child’s best interest is the priority will mostly likely prefer it over the alternative environment.

In the end, there is no preset age when a child’s preference will be considered in making the decision on a petition for a parental rights and responsibilities (custody) in New Hampshire. The family law judge may give “substantial weight” to a mature child’s preference, but the judge must consider any factors that influence the child’s preference. In addition, all the factors concerning the best interest of child must be considered. More importantly, the family law judge makes the final decision on which parent the child lives with-it is not the child’s decision.