Legal Decision-making in NH Parenting Plans

Legal Decision-making in NH Parenting Plans – Joint or Sole?

Parenting Plans in New Hampshire are required in all NH divorce and parenting actions.  Experienced New Hampshire family law and divorce attorneys frequently draft NH Parenting Plans for clients, often as part of NH unbundled legal services.  An important aspect of NH parenting plans is legal decision-making for the parties’ minor children.

“In New Hampshire there is a legal presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interests of minor children.”

Parties in NH divorce and parenting actions usually don’t know what legal decision-making means.  Legal decision-making means the right of one, or both, of the parties to make major decisions regarding all aspects of their children’s welfare.  Matters pertaining to their children’s welfare include education, religious upbringing, medical, dental and mental health care, safety, travel arrangements, and child care arrangements.

In NH parenting plans, the parties are required to choose between joint decision-making for the parties’ children, or sole decision-making for the parties’ children.

Joint Decision-making in New Hampshire Parenting Plans

Joint decision-making is the “default” rule for NH parenting plans in divorce and parenting cases.  That is, in New Hampshire there is a legal presumption, affecting the burden of proof, that joint decision-making responsibility is in the best interests of minor children. 

Joint Decision-making in NH parenting plans is where both parties are co-equals in making important decisions regarding their children.  The parties work together to make mutual decisions in the best interests of their minor children.  They are expected to communicate ahead of time any important appointments, events, etc. so that the other party has a chance to attend and participate.

In NH parenting plans with joint decision-making, each party essentially has a veto over decisions the other party wants to make for the children.  For example, one party may want the remove the children from a public school and enroll them in a private religious school.  If the other party disagrees, the children must remain the public school unless and until the parties can reach a compromise.

Joint decision-making is either ordered by the NH family division court after a final hearing, or agreed-upon by the parties.

Sole Decision-making in New Hampshire Parenting Plans

By contrast, sole decision-making in NH parenting plans, in which one party has no legal right to participate in major decisions regarding his/her children’s welfare, is not favored by NH family division courts.  Sole decision-making is somewhat rare in New Hampshire parenting plans because both parents are usually competent to make decisions for their children.

However, there are circumstances where sole decision-making by one parent is in the children’s best interests.  While each New Hampshire divorce and parenting case is different, certain fact-patterns are common in sole decision-making cases.  Physical or mental abuse of the children by one parent can result in sole decision-making.  One parent’s untreated mental illness or intellectual deficiency may be grounds for sole decision-making.  Substance abuse by one parent – to the extent it regularly impairs his/her ability to make sound decisions for the children – is oftentimes a reason for sole decision-making.

Legal Decision-making in NH Parenting Plans – Practical Considerations

From a practical standpoint, it is rare for one party to voluntarily relinquish his/her right to make decisions for the parties’ children.  Usually, it occurs by court order after a hearing in which both parents present evidence to the New Hampshire family court to support their respective positions.

It is an understandable impulse to seek sole decision-making in NH divorce and parenting cases.  One party usually considers himself or herself to be the primary caregiver for the children and questions the other party’s ability to fulfill those responsibilities, especially when s/he has little past experience doing so. While the court certainly may take into account the historic parenting roles of the parties, inexperience or distrust, without more, is unlikely to result in a award of sole decision-making.

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Todd W. Stevens, Esquire

Attorney Todd W. Stevens is an experienced New Hampshire attorney with a state-wide practice in personal injury, family law and business law. Attorney Stevens regularly litigates cases in New Hampshire courts and is a sought-after advocate in complex cases. Attorney Stevens maintains a limited caseload and carefully selects his clients.

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