BE WARY OF MANDATORY COURT ORDERED MEDIATION and resist the desire to conclude your case “quickly” through that process.

Effective October 2005, the New Hampshire state legislature implemented a sweeping reform of existing family law as it related to parents and children.

The Parenting Rights and Responsibilities Act attempted to address several areas of concern, but unfortunately, has done so with mixed success.

The goals of the act were certainly laudable as its declaration of purpose states that the legislature recognizes that children do best when both parents are actively involved in their lives, and the act attempted to allow parents to fashion a plan to allow them to coparent their children, effectively and with minimal court intervention, after a divorce. Terms like “physical custody”, “legal custody”, and “visitation” (which were deemed to be adversarial, derogatory and outdated) have been eliminated, and are now replaced with the generic term “parenting time.”

Like many pieces of legislation passed by our citizen legislature, this act has had several unintended and untoward consequences that serve to invoke significant ongoing hardship upon many New Hampshire parents.

One of the primary objectives of the act was to reduce “serial filings” by litigants disgruntled with an original parenting decision (or were intent on “continuing the hostilities” for various reasons) to prevent them from continuing to re-litigate their cases toward what they hoped to be a more favorable conclusion. Such actions were deemed disruptive to the children of a divorce, costly to one (or both) litigants, and burdensome to an already overworked judicial system.

Parties remain free to modify any aspect of their parenting plans by agreement. Unfortunately, such agreement is often absent or strained within the context of divorced parents. Parties also remain free to modify a parenting plan if they have equal or nearly equal parenting time. Modification is also possible if children are of sufficient age and maturity (generally deemed to be approximately 14 years of age) and have expressed a preference for a change in a parenting plan. Parties can modify a parenting plan, if the circumstances surrounding their original plan has changed substantially, such that the children’s continued placement in that environment would be detrimental to their overall well-being and best interest (a very difficult standard to address).

As a result of a recent New Hampshire Supreme Court decision interpreting this law very narrowly, the legislature slightly amended the statute’s modification provisions to allow parties to adjust the parenting plan to allow “minor” adjustments (such as a slight change in pickup/drop-off times, drop off locations, and other minor adjustments).
As currently drafted, the law does not allow parties to use the “minor adjustment” section to increase or expand their parenting time, despite changes in their children’s age and/or the parent’s changes in employment schedules.

An overwhelming majority of parties seeking to adjust or modify a parenting plan do not fit within one of these narrow pigeonholes, and are precluded from modifying their plan, however, reasonable and legitimate their desires to do so may be. And this is causing significant heartache, stress and frustration for many New Hampshire parents.

As our system is currently structured, parties are required to attend a mediation session within weeks of the initial divorce filing. In my considerable experience, parties are generally ill-equipped to approach this process realistically and rationally, since they may be reeling from the shock of the divorce and separation, the realities of their new uncoupled life, and coping with the absence of their children in their day-to-day existence.

Many times, parties, afraid of offending their former spouse, causing more difficulty, or otherwise in an effort to “get it over with” agree to loosely worded parenting plans that later come back to haunt them.
For example, many mediators present parties with parenting plans and urge them to fill out the plan. Although they are not supposed to offer legal advice, many offer their opinions and parties end up agreeing, in lieu of a regular routine parenting and holiday schedules, to loosely defined terms such as “as agreed upon by the parties.”

While everyone wants to appear to be cooperative, generous and not adversarial during their mediation session, I have had many prospective clients come to me with such loosely worded plans, complaining that the other parent will not “agree” to most if not all requested parenting time with children. This generates an obvious cycle of frustration, anger and resentment that does nothing to allow parents to effectively co-parent.

Another problem area is when parties, in good faith, enter a parenting plan involving an infant or young child. Clearly, the needs of children change rapidly over time, as does their need and ability to spend time away from their primary residence to be with and develop a meaningful relationship with the absent parent. Also, parent’s work schedules change, making them available for more parenting time than originally existing at the time the final plan was finalized.

Regrettably, a parenting plan entered without anticipating and addressing such future contingencies will be almost “cast in stone”, until such time as the children become of sufficient age to have meaningful input in their parenting placement. This can lead to many many years of limited parenting time, an absence of a divorced parent from the life of a child and even parental alienation. And it may not be possible to “make up” that time later in life.

So avoid the temptation to appear cooperative, sign away your rights, and get your divorce “done for the sake of conclusion.” While mediation has its time and place in any dispute resolution, it is clearly not at the beginning of an emotionally volatile and unsettling family dissolution. Although you may save money by going this route, you will likely live to regret it.

Don’t be penny wise and pound foolish.

You need the steady hand and experience of seasoned counsel to assist you in all aspects of a divorce, including mediation. As a result of changes to the NH Code of Professional Conduct, attorneys are now allowed to offer limited services, such as preparing for and conducting ONLY a mediation, which may serve to save you countless heartache and headaches in the future. Of course, your best bet is to consult with and work closely with experienced counsel throughout the divorce process, but at a minimum, you should not try to “go it alone” in this confusing, esoteric and emotionally overwhelming process.

Call our offices today for a no cost, telephone conversation conference to determine your rights in the best course of action for you to pursue, so that you can maintain a meaningful relationship with your children after of the dissolution of your family.