Custody Parentage Laws | New Hampshire

Yes (NH RSA 170-B:4, II (permitting an “unmarried adult” to adopt)).

Yes, but probably only so long as they are married. More information on adopting in NH can be found, here.

Yes, four kinds:

1. “Sole legal custody” means that only one parent has the right to make major life decisions for the child, including matters of education, medical care, and emotional, moral and religious development.
2. “Shared legal custody” means that both parents are involved in and make these decisions.
3. “Sole physical custody” means that a child lives with and is under the supervision of only one parent, subject to reasonable visitation with the other parent, unless a court finds that visitation is not in the child’s best interests.
4. “Shared physical custody” means that the child resides with both parents in a way which ensures frequent contact with both.

When a married couple divorces or two unwed legal parents separate (NH RSA 461-A:3, II), a court encourages them to work together to create a “parenting plan” that allows them to share in the rights and responsibilities of raising their children (NH RSA 461-A:2). If the parents are unable to create a parenting plan, the court will create it for them. The court will treat both parents as equals. All decisions a court makes about custody are based solely on the best interests of the child and the safety of the parties (Place v. Place, 129 N.H. 252, 525 A.2d 704 (1987); See also, NH RSA 461-A:6, I). A court may award visitation or custody to step-parents or grandparents (NH RSA 461-A:6, V), and may also appoint a guardian ad litem to represent the best interests of the child (NH RSA 461-A:6, VI).

As stated above, New Hampshire courts base custody arrangements on the best interests of the child. As a general rule, a parent’s sexual orientation or marital status should have no bearing on a child’s best interests.

Nevertheless, your former partner may try to argue that your sexual orientation is detrimental to a child. Any number of reasons can be cited, such as that the LGBT parent’s sexual orientation is causing other people to tease or ostracize the child, that the parent is a bad role model, or that the parent’s new partner is not good for the child. The New Hampshire Supreme Court has not yet squarely addressed this issue. A majority of states decide the question based on whether there is evidence of direct harm to the best interests of the child, but others simply assume harm. As a matter of logic and experience, a parent’s sexual orientation should not in itself be grounds for denying custody or visitation. Contact GLAD for further resources for dealing with such a situation.

It can make a difference with respect to future modification of court orders for custody. People can seek to modify permanent court orders for custody in a number of circumstances, including when “clear and convincing evidence that the child’s present environment is detrimental to the child’s physical, mental, or emotional health, and the advantage to the child of modifying the order outweighs the harm likely to be caused by a change in environment” (NH RSA 461-A:11, I (c)). If a spouse did not know of your sexual orientation at the time of the court proceedings but learns it later, they may argue that the circumstances surrounding the child’s welfare have changed and that the custody issues should be litigated anew. However, as stated above, a parent’s sexual orientation should generally have no bearing on a child’s welfare.

It shouldn’t be. One of the additional responsibilities of being a gay or lesbian parent is helping one’s children deal with this possibility or reality. Of course, children can be teased about everything from the size of their ears to their parents’ accent to their lack of fashion sense, so all parents need to help their children develop coping mechanisms and strategies when peer harassment arises.

As a legal matter, particularly instructive is a U.S. Supreme Court case, Palmore v. Sidoti, in which the U.S. Supreme Court reversed a Florida court’s change of custody from the mother to the father. The reason custody had been switched was because the white mother was involved with a black man whom she later married. The Supreme Court acknowledged the reality of bias and prejudice, and that the child might be teased, but refused to cater to those prejudices or give them the force of law by changing the custody arrangement that previously existed. In a statement of constitutional principle applicable to all, the Court unanimously stated, “The Constitution cannot control prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

The standard for restrictions on visitation, and in all matters, is what is in the best interests of the child with no concern for the adults. Courts have enormous discretion in visitation matters and certainly have the power to restrict visitation.  But unless the partner is causing harm to the child – a very high standard – visitation should not be restricted.

Same-sex couples with children who are breaking up should:

1. Support the rights of LGBT parents;
2. Honor existing relationships regardless of legal labels;
3. Honor the children’s existing parental relationships after the break-up;
4. Maintain continuity for the children;
5. Seek a voluntary resolution;
6. Remember that breaking up is hard to do;
7. Investigate allegations of abuse;
8. Not allow the absence of agreements or legal relationships should not determine outcome;
9. Treat litigation as a last resort; and
10. Refuse to resort to homophobic/transphobic laws and sentiments to achieve a desired result.

For more detailed information about these standards see the publication Protecting Families: Standards for LGBT Families.