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In our blog we will try to provide you with general information regarding family law, as well as updates in important cases and statutes dealing with family law in New Hampshire. This is not to be construed as legal advice. Every case is unique and small facts can make a difference.

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Differences between physical and legal custody

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Defining the Difference Between Physical and Legal Custody

The phrases physical custody and legal custody are no longer being used in New Hampshire custody cases. Instead, NH family courts now assign “parental rights and responsibilities” between both parties. When such rights are initially being allocated, New Hampshire state law directs family courts to be guided by what is deemed in the best interest of the children.

When a person refers to legal custody, they are usually referencing the parent who has been granted the legal right to make legal decisions regarding their child. In our state, there exists an automatic presumption that the interests of a minor child are best served by joint decision making responsibilities between both parents. If joint decision making is not awarded to each parent, then a family court must provide their reasons for choosing not to do so. Certainly, cases exist where decision making authority is awarded to only one parent, but these cases are the minority, not the majority.

When decision making responsibilities are shared between two parents, both parents have an equal share in making major decisions, such as where their child will attend school, their medical care, religious upbringing, and other similar decisions that can impact the child’s welfare and health. Unless an order to the contrary exists, the parent with whom the child is residing at a particular time has the legal right to make decisions regarding their day to day care, such as what they have for dinner or what time they are required to go to bed, in addition to decisions pertaining to emergency medical care.

When the phrase physical custody is mentioned, then it is generally in reference to the amount of time that a child spends with each of their parents. In the state of New Hampshire, this is called “residential responsibility”. A parent may be awarded primary residential responsibility, which means that a child primarily lives with that parent, or a parenting schedule can be created that shares residential responsibility equally between both parents.

There are almost no restrictions regarding what a parenting schedule must resemble. Shared schedules may share alternate weekends or divide a week, while others will simply choose to alternate weeks. If there are specific issues that could impact the overall well-being or health of a child, then an NH family court may choose to order that parenting time be supervised.

There is no simple solution as to how parental rights and responsibilities and parenting time should be allocated between two parents. How each is allocated is going to quite fact specific to each case.

If you have questions regarding your particular case, then please contact one of our experienced NH family law attorneys today. We offer free initial consultations to all prospective clients, and any details about your case discussed during the consultation will remain 100% confidential. With your well-being and that of your children at stake, you cannot afford to have anything less than the best in legal representation.