New Hampshire’s “best interests” statute lists out several factors that the court should use to determine best interests. Many of the factors are little wordy, and as a whole the statute misses some of the very basic issues that must be considered when creating a parenting plan that is in the child’s best interest.
When I had the chance to reread a wonderful guide from the Massachusetts Association of Family and Conciliation Courts titled Planning for Shared Parenting: A Guide for Parents Living Apart, I loved the way that the factors were presented so simply. If I had the opportunity to rewrite RSA 461-A:6, I would use the AFCC’s language:
- The age, temperament and social adjustment of each child.
- Any special needs of each child (medical, developmental, educational, emotional or social).
- The quality of relationships between siblings and any other extended family members.
- Each child’s daily schedule.
- Caregiving responsibilities of each parent before the separation.
- How you would like to share responsibilities both now and in the future.
- Availability of each parent as a caregiver.
- Potential flexibility of each parent’s work schedule.
- Distance between each parent’s home, workplace and children’s schools.
- The ability of parents to communicate and cooperate with each other.
- The ability and willingness of each parent to learn basic caregiving skills such as feeding, changing and bathing a young child; preparing a child for daycare or school; taking responsibility for helping with homework; assessing and attending to each child’s special emotional and social needs.
Here are two good examples of why the basics can be so important in the determination of best interests:
1) Both parents are good caregivers and share responsibilities for the children both before the separation and after. However, the parents live forty-five minutes from each other. Although each parent is able to adequately provide and care for the children, the distance that they live from each other prevents implementing a shared schedule during the school year. It usually is not feasible to have a parent making a forty-five minute commute with the children to school.
2) Parents are both good parents and caregivers, each dedicated to the children and able to appropriately care for them. One parent works from 8:00 am to 4:00 pm Monday through Friday, with flexibility to work from home if the children are sick or have the day off from school. The other parent works second shift, from 2:00 pm to 10:00 pm with little flexibility to take time off from work or be available for the children during work hours. The children’s best interests require that they be with the parent who is available after school and in the evenings to prepare dinner, help with homework, and oversee baths and bedtime.
Neither of these scenarios endorses the parenting of one parent over the other or concludes that one parent is unfit; rather, it is a finding that one parent’s work schedule makes them more available or that the distance between the two homes is too much to allow for a shared schedule.
Of course, under RSA 461-A:6 courts have the ability to consider any other factor not listed that the court finds relevant, but I think that these factors from the AFCC provide a plainer picture of the considerations that a GAL might use to make recommendations, or the court might use in crafting a parenting plan