The bill also requires parents to file parenting plans with
the court.
STATUS: The House Children and Family Law Committee will hold a hearing
on the bill Thursday at 10 a.m. in Room 206 of the Legislative Office
Building.
ON THE NET: www.gencourt.state.nh.us/legislation/2005/HB0529
.html
CONCORD - A group of lawmakers and lawyers wants to change the way
parents get divorced in New Hampshire.

Hearings are scheduled Wednesday and Thursday on two related bills that
seek to change the way parents decide how to raise their children after
a divorce.

Both bills seek to encourage parents to plan together how they will rear
their children, and perhaps dilute the bitterness that so often flavors
divorce.

"We want the (legal) system to see each family as unique," said Nina
Gardner, chairwoman of the Family Law Task Force and head of the state's
Judicial Conduct Committee. "We want families to, as much as possible,
craft their own solution regarding the kids."

Both bills state, as a premise, "Children do best when both parents have
a stable and meaningful involvement in their lives."

One of the bills takes a big step further, however.

The Presumption of Shared Parental! Rights and Responsibilities Act (HB
529) would create a legal presumption that parents should share equally
in raising their children, both in decision-making and physical custody.

"In determining parental rights and responsibilities," HB 529 states,
"the court shall be guided by the presumption that equally shared
parent rights and responsibilities are in the

child's best interest."

The other bill, the Parental Rights and Responsibilities Act (HB 640),
is the product of the Family Law Task Force, a large group of lawyers,
lawmakers and family-services advocates formed in 2002 to study the
state's divorce system and laws.

While HB 640 encourages parents to cooperate in deciding how to raise
the children, it directs that the courts "shall be guided by the best
interests of the child" in deciding parental rights and
responsibilities.

"What we are really looking for is a cultural change," said that bill's
author, Amherst divorce lawyer Honey! Hastings. "We want the whole
society to think that the first thing is for the parents to work it out"
before they go to court.

Both bills would require parents to draft plans covering things such as
where the parents and children will live and when, and how the parents
plan to communicate and resolve any future disputes. When parents are
unable to agree on a plan, the court may impose one.

Both bills seek to encourage parents and the courts to be creative and
cooperative in drawing up parenting plans, and both encourage everyone
to consider the children's best interests in doing so.
Changing terms

Both bills would separate laws relating to parents and children from the
laws relating to marriage and divorce so as to avoid confusing the
issues, and both bills replace the terms "custody" and "child support"
with the phrase "parental rights and responsibilities."

"Those are value-laden terms that add to the acrimony relating to
divorce," Gardner said.

"The biggest thing is getting rid of the words 'custody' and 'custodial
rights,' " Hastings said. "I think that's the most significant change.
It's gotten to have the sense of ownership, or winning. . . . This is
not good for kids."

The difference between the two bills, however, may be best illustrated
in a single word: equally.

HB 640 says the courts should "encourage parents to share in the rights
and responsibilities of raising their children after the parents have
separated or divorced." HB 529 says the s! ame, but modifies the verb
"share" with the adverb "equally."

"I felt that we needed to go one more step," said Rep. David Bickford,
R-New Durham, who is the chief sponsor of both bills but prefers HB 529.

State law presumes both parents will share major decisions concerning
the children, but for years, Bickford said, the courts generally have
favored giving one parent - often the mother - primary custody and the
other parent - usually the father - visitation rights.

Bickford said state courts seem inclined to try to perpetuate whatever
family structure existed before the divorce, giving primary custody to
whichever parent was the primary caregiver during the marriage.

Bickford argues divorce should be viewed as restructuring families, not
trying to preserve old arrangements.

"Right now the whole thing is based on looking for who the better parent
is or who the primary caretaker was," Bickford said.

"We've got to talk about what we'! re going to do tomorrow, not what we
did yesterday. That's what's impo rtant, that both parents continue to
parent to the best of their abilities, not throw one parent out to the
salt mines."

HB 529 directs courts and parents to start with the presumption that
both parents will share equally in all aspects of raising their
children. Courts could still award primary or sole custody in cases when
one parent is unfit or unable to act as a full partner, but judges would
have to articulate reasons for doing so.
Lawyers oppose idea

While everyone agrees parents should try to cooperate more, the
presumption of shared custody is a controversial idea, New Hampshire Bar
Association spokesman Dan Wise said.

"There are a lot of lawyers who do divorce work who are very skeptical
about the idea," Wise said. "They think that's sort of a parents' rights
view of the situation," rather than being focused on what's best for
children.

"I think they are trying to tip the scales in terms of this perceived
power imbalance, which I frankly don't see," Hastings said. "I don't
think there is a bias (against men). . . . I haven't seen it."

The Family Law Task Force does not endorse Bickford's favored version or
the idea of presuming anything about where and with whom children should
live, Gardner said.

"We do not believe in the strict legal presumption of joint custody,"
Gardner said. "We believe each ! family is unique and you have to look
at the needs of the children in each family. It's not always
appropriate. It's not always in the best interests of the children.

"We're looking for parents to make their own decisions regarding what's
best for their kids . . . and that flies in the face of a presumption."

Ideally, Hastings said, parents should be equally involved with their
children from birth, but the family structure before divorce can't be
ignored when sorting out the parents' roles after divorce. In any case,
she said, no single solution will suffice for all families.

"It's the cookie-cutter approach," she said.

Parenting plans reached between the parents are more likely to involve
compromise and more likely to last, Wise said.

"The more the parents themselves can work these things out, the more
long-lasting the agreements are going to be, rather than something
that's imposed on them by professionals from the outside," Wise said.
Bickford and supporters of his preferred bill argue that in most cases,
shared custody is best for the children, and that it will encourage
mediation and cooperation in every case. HB 529 would give parents
greater incentive to work together, they say, whether they decide to
share parental duties evenly or not.

"Mediation will never work as long as they're not sitting at an equal
table," said shared-custody advocate Marc Snider of Merrimack. Under the
current system, Snider said, "Everybody involved in the process knows
that the deck is stacked in the mother's favor."

"You've got to give people a reason to negotiate," Bickford said, "and
that's what this bill does, because you know you're on equal footing" at
the start.Andrew Wolfe can be reached at 594-6410 or
wolfea@telegraph-nh.com.