HB1415: relative to de facto child custody.

HB 1415 - AS INTRODUCED

2003 SESSION

03-2337

05/01

HOUSE BILL 1415

AN ACT relative to de facto child custody.

SPONSORS: Rep. Cady, Rock 73; Sen. Barnes, Dist 17; Sen. Boyce, Dist 4

COMMITTEE: Children and Family Law

ANALYSIS

This bill provides the circumstances under which custody may be awarded to the de facto custodian of a minor child.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

03-2337

05/01

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Three

AN ACT relative to de facto child custody.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 New Section; De Facto Child Custody. Amend RSA 458 by inserting after section 17-e the following new section:

458:17-f De Facto Child Custody.

I. A person who is the de facto custodian of a minor child may petition the court for custody of the child. In this section, "de facto custodian" means a person who has been shown by clear and convincing evidence to have been the primary caregiver for, and financial supporter of, a child who has resided with the person for a period of 6 months or more if the child is under 3 years of age and for a period of one year or more if the child is 3 years of age or older or has been placed by the department of health and human services. Any period of time after a legal proceeding has been commenced by a parent seeking to regain custody of the child shall not be included in determining whether the child has resided with the person for the required minimum period.

II. A person shall not be a de facto custodian until a court determines by clear and convincing evidence that the person meets the definition of de facto custodian in paragraph I. Once a court determines that a person meets the definition of de facto custodian, the court shall give the person the same standing in custody matters that is given to each parent under this chapter.

III. The court shall determine child custody in accordance with the best interest of the child and shall give equal consideration to each parent and to any de facto custodian. The court shall consider all relevant factors including:

(a) The wishes of the parent, child, and de facto custodian as to custody.

(b) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian.

(c) The intent of the parent or parents in placing the child with a de facto custodian.

(d) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence, as defined in RSA 173-B, and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.

IV. The petition for de facto custody shall be entered in the superior court which has jurisdiction over the divorce, legal separation, or other proceeding brought under RSA 458; in the case of death of a parent, stepparent adoption, or unwed parents, the petition shall be entered in the superior court located in the county where the child resides.

V. Upon the motion of any original party, the court may modify or terminate any order made pursuant to this section to reflect changed circumstances of the parties involved.

VI. The court may grant joint custody to the child's parents, or to the child's parents and a de facto custodian, if it is in the best interest of the child. If the court grants custody to a de facto custodian, the de facto custodian shall have legal custody of the child under New Hampshire law.

2 Support and Custody of Children; Grounds for Modification; De Facto Custodian. Amend RSA 458:17, V(a)(3) and (4) to read as follows:

(3) The circumstances affecting the welfare of the child have been so greatly altered that there is a strong possibility that the child will be harmed if the child continues to live under the present arrangement; [or]

(4) If the court finds that a minor child is of sufficient maturity to make a sound judgment about his or her proper custody, the court may give substantial weight to the preference of the mature minor child 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, but not limited to, whether the minor child's preference was based on undesirable or improper influences[.]; or

(5) The custodian appointed under the prior decree has placed the child with a de facto custodian.

3 Support and Custody of Children; Reference to De Facto Custodian Added. Amend RSA 58:17, VI to read as follows:

VI. In making any order relative to such custody, the court shall not give any preference to either parent of the children because of the parent's sex. The paramount and controlling consideration in deciding child custody is the overall welfare of the child, and there is no one formula for all cases, each case being determined by its particular facts. Considerable weight may be given to the stated preference of a mature minor, provided that preference was not unduly influenced. If the court determines that it is in the best interest and welfare of the children, it shall in its decree grant reasonable visitation privileges to a party who is a stepparent of the children or to the grandparents of the children pursuant to RSA 458:17-d. Nothing in this paragraph shall be construed to prohibit or require an award of custody to a stepparent, [or] grandparent, or defacto custodian if the court determines that such an award is in the best interest of the child.

4 Effective Date. This act shall take effect January 1, 2005.