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Parenting | Custody & Parentage Laws | New Hampshire

New Hampshire Custody & Parentage Laws Q&A

Can a single gay individual adopt a child in New Hampshire?

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

Can same-sex partners jointly adopt a child together in New Hampshire?

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

How does a court generally go about making custody determinations?

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).

If I have a child from a former straight relationship, and I am now involved with a same-sex partner, can my ex use my sexual orientation against me in custody proceedings?

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.

Does it matter if my “ex” knew or suspected I was gay or lesbian before we separated?

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.

Can a court keep my kids from visiting when my partner is present?

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.

What standards should same-sex couples with children who are breaking up maintain?

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.