Grounds for Modification of Parenting Rights

In a recent decision entitled In the Matter of Adam Muchmore and Amy Jaycox, the New Hampshire Supreme Court strictly construed RSA 461-A:11,I in determining when parental rights and responsibilities as established under a Parenting Plan may be modified.  More specifically, the Court held that the Family Court MUST comply with the specific grounds for modification set forth in this statute.  In Muchmore, one parent had primary residential parenting rights and the other parent had visiting (or non-primary) parenting rights).  The parent with visiting parenting rights argued that it was in the best interests of the children to modify the existing Parenting Plan, and that on this basis the Parenting Plan should be modified.

However, RSA 461-A:11,I did not allow for the application of the best interest standard in reviewing whether modification of final parenting rights should occur as the statute clearly required when one parent had primary residential parenting rights then the parent seeking modification must show by “clear and convincing evidence that the child’s present environment was detrimental to the child’s physical, mental, or emotional health, and that the advantage to the child of modifying the Order outweighs the harm likely to be caused by a change in environment”.  This is a very difficult burden of proof to meet.  The Court made it clear that even as to minor modifications of parenting rights, that this standard would be applicable, even when the Parenting Plan had language that discussed the procedures in which the parties would discuss or mediate possible changes to the plan.

As a result of this Supreme Court Decision, a change in RSA 461-A:11 was proposed and subsequently passed by the New Hampshire Legislature.  RSA 461-A:11, Subsection F was added and provides that a modification that makes either a minimal change or no change in the allocation of parenting time between the parties may be made when the Court makes a determination that it is in the “best interest” of the child.  The result of this change in the modification statute is to give the Family Courts some discretion in making minimal changes to the allocation of parenting time based upon the ‘best interest” standard when one parent has primary residential parenting rights and the other has non-primary.

Any parent who is considering a settlement agreement involving parenting rights under a Parenting Plan or who is seeking to modify  parenting rights under an existing Parenting Plan should consult with an attorney to insure that their rights are protected.

Attorney Michael Fontaine has been practicing for 25 years and focuses his practice on family law. He can be reached at (603) 883-0797.

For more information, please see the NH Supreme Court Opinions.

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