New Hampshire: When can my children decide in whose home they want to live?
Okay, New Hampshire readers – I promised you would hear my thoughts on a child’s right to decide shortly, so here it is. The law in New Hampshire is different than that in Massachusetts. Read carefully and as always, call with questions!
In New Hampshire, there is a point where the Court will allow the child to have input and/or to choose in whose home she or he wants to live. There is not a certain age or grade in school that makes this determination, but rather when the Court feels that the child is mature enough to have a say in this very important decision. So long as the child is not guided in his/her decision by pressure by anyone or by undue influence, and the Court finds him/her mature, the Court will strongly consider the child’s thoughts in making the decision.
RSA 461-A:11(e) states “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 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 influence.”
In plain language, if the child seems to be one whom is mature enough to understand the situation and articulate his/her position, the Court is willing to consider his/her input. To do so, the Court would need to find that this is the case through a Guardian Ad Litem that has interviewed all parties, the child and whomever else is deemed necessary to investigate the matter. The child will speak to the Court through the Guardian and not be expected to meet with the Judge or testify (the idea being that the child is not put in more of a “position” than necessary when giving input).
Let’s be clear. The child never is in a position to choose an option that is not safe or sound in any way. If the child wants to live in a situation that doesn’t appear to be a good option for a safe, nurturing environment, the Court will not allow him or her to choose that option. The choice truly comes in where there are two living situations in which the child could thrive and one must be chosen by the parties or the Court.
If you have a situation like this, and you think that your child is in a position to speak his or her mind, you may ask the Court to appoint a Guardian Ad Litem or that the parties retain a Guardian privately. With any luck, once the Guardian completes his/her investigation, s/he may be able to work with the parties to make a Parenting Plan. If not, that can be decided after argument to the Court.
It’s scary to think that your child may be growing up enough to have a say in his choice of residence, but it is a sign that s/he is independent and strong. If you find yourself in this situation, and you have questions, please call us to help!