Ideally, parents would be able to agree upon a parenting schedule for their children. Parents are best suited to this task because know their own schedules, their children’s schedules, and their children’s personalities better than any attorney, Judge, or a Guardian ad Litem ever can. If the parents cannot reach an agreement regarding parenting time, then a Judge must ultimately decide what parenting time each parent has with the child. In making this decision, the Judge is guided by the best interest of the child standard contained in NH RSA 461-A:6(I). The statute provides that “[i]n determining parental rights and responsibilities, the court shall be guided by the best interests of the child, and shall consider the following factors:
(a) The relationship of the child with each parent and the ability of each parent to provide the child with nurture, love, affection, and guidance.
(b) The ability of each parent to assure that the child receives adequate food, clothing, shelter, medical care, and a safe environment.
(c) The child’s developmental needs and the ability of each parent to meet them, both in the present and in the future.
(d) The quality of the child’s adjustment to the child’s school and community and the potential effect of any change.
(e) The ability and disposition of each parent to foster a positive relationship and frequent and continuing physical, written, and telephonic contact with the other parent, including whether contact is likely to result in harm to the child or to a parent.
(f) The support of each parent for the child’s contact with the other parent as shown by allowing and promoting such contact, including whether contact is likely to result in harm to the child or to a parent.
(g) The support of each parent for the child’s relationship with the other parent, including whether contact is likely to result in harm to the child or to the parent.
(h) The relationship of the child with any other person who may significantly affect the child.
(i) The ability of the parents to communicate, cooperate with each other, and make joint decisions concerning the children, including whether contact is likely to result in harm to the child or to a parent.
(j) Any evidence of abuse, as defined in RSA 173-B:1, I or RSA 169-C:3, II, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.
(k) If a parent is incarcerated, the reason for and the length of the incarceration, and any unique issues that arise as a result of incarceration.
(l) Any other additional factors the court deems relevant.”
Each parent may present evidence to the Court as to
why the schedule that they are requesting is in the child’s best interest in
accordance with this statute. A Guardian
ad Litem is a person certified to perform an investigation and make
recommendations to the Court as to what parenting schedule would be in the
child’s best interest. Either or both parents may request a Guardian ad Litem
to be appointed.
Guardian ad Litems in divorce and parenting cases
are paid privately by the parties to the case.
Generally, the Court will allocate payment of a Guardian ad Litem
between the children’s parents. This
prevents one parent from purposely incurring unnecessary Guardian ad Litem fees
in an effort to increase the other parent’s fees. However, if the Court finds that either or
both parents do not have the ability to pay for a Guardian ad Litem, they may
order that the parent requesting the Guardian ad Litem be responsible for the
cost of the Guardian ad Litem’s fees.
It is helpful to have a Guardian ad Litem if you are
looking to provide evidence that would not be easily provided in Court. For example, a Guardian ad Litem will
routinely interview children where a Judge will not typically have a child come
in to Court to testify. In addition, a
Guardian ad Litem can go to a parent’s home if there are safety issues being
alleged. In fact, Guardian ad Litem can
even make unannounced visits to a parent’s home if they deem it necessary.
If both parents are represented by counsel, it is
helpful for the attorneys to agree upon who will be appointed Guardian ad
Litem. If the parties are not able to
agree, the Court will appoint a Guardian from the list of Court approved
Guardian ad Litems, leaving the parties with no control over who is appointed.
Once a Guardian ad Litem is appointed, he or she
will send a Questionnaire and Stipulation to the parents for signature. As part of this process, both parents provide
information they believe is relevant to the case, including a list of witnesses
for the Guardian ad Litem to speak with.
Upon receipt of these documents and the retainer
fee, the Guardian ad Litem will begin the investigation. The process that the Guardian ad Litem uses
during the investigation varies. It
generally involves interviewing both parents, the children, and going to the
parents’ homes. The Guardian ad Litem may
also speak to the children’s counselors and teachers.
Once the Guardian ad Litem completes the
investigation, he or she will issue a final report detailing the information received
and recommendations. Many times after
the Guardian ad Litem issues a final report, the parents are able to use the
Guardian ad Litem report as the basis to negotiate a resolution to the case.
If parents are still unable to reach a resolution,
the Court will schedule a final hearing where both parents have the opportunity
to present evidence. In addition, the
Guardian ad Litem testifies as to the basis of his or her opinions and
recommendations. Both parents have the
right to question the Guardian ad Litem.
Although the Court
considers the testimony of the Guardian ad Litem when issuing its Court Order,
the Court will also consider any other evidence presented by the parents at the
final hearing. Ultimately, it is still
the Judge and not the Guardian ad Litem that makes the final parenting orders.
