Published in NH Trial Lawyers Quarterly – Fall 2021
If you are currently involved in a divorce or parenting matter and trying to relocate your minor child out of the state of New Hampshire, and the move will result in you and your child living farther away from your spouse or result in your child switching school districts, then you will want to consult New Hampshire's relocation statute before moving.
In New Hampshire, Judges prefer to keep a child's living arrangement stable, secure, and predictable. In fact, if you already have a court order regarding parenting time and where your child will live, the law makes it difficult to modify the orders. A judge will be reluctant to grant a modification or relocation unless you meet the requirements of the statute.
If relocation, however, is necessary for your safety or the safety of your child, you can relocate without a court order. RSA 461-A:12(II-a). Additionally, the relocation statute only applies to the relocation of any residence in which the child resides “at least 150 days a year. RSA 461-A:12(II).
If either parent requests that the court hold an evidentiary hearing on the relocation, in an active divorce or parenting case, then the court is required to “hold a hearing within 30 days of the request for a hearing on the relocation issue.” RSA 461–A:12(IV)(a).
New Hampshire's relocation statute, RSA 461-A:12, requires that the party who wishes to relocate provide reasonable notice to the other parent. Even though “reasonable notice” may change depending on the special circumstances of each case, 60 days is presumed reasonable in a majority of cases. The notice should be provided to the other party in writing. Factors justifying shorter notice include, “relocation to protect the safety of the parent, child, or both, or relocation because the current abode is unavailable due to circumstances beyond the control of the parent.” RSA 461-A:12(3).
You do not need to provide notice of the relocation if the move results in you being closer to the other parent; although, a change in school districts may justify and/or require notice and agreement of the non-moving party.
A request to relocate will only be approved by the Court if the relocating parent can demonstrate that their relocation is for a legitimate purpose and that the proposed relocation is reasonable in light of that purpose. RSA 461-A:12(V)(a) & (b).
A parent's ability to relocate is subject to the statute as well as the Supreme Court's decisions interpreting the statute. RSA 461-A:12(V)(a) & (b) places the initial burden upon the parent proposing relocation to prove that the relocation is for a “legitimate purpose” and that the proposed location is “reasonable in light of that purpose.” “A relocation motivated by a legitimate purpose should be considered reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent's relationship to the child.” In Matter of Sullivan, No. 2014-0256, 2015 WL 11182025, at *2 (N.H. May 22, 2015) (quoting Tomasko v. DuBuc, 145 N.H. 169, 171-72 (2000)) (internal quotes omitted).
A legitimate purpose may exist for different reasons, including economic opportunities such as employment or the ability to be self-supportive, to be close to a support network, or for an educational opportunity for the parent or child. See Matter of St. Pierre, 172 N.H. 209, 214 (2019).
In making such a determination of “reasonableness”, the Court's guiding principle must be the best interests of the children. In the Matter of Pfeuffer and Pfeuffer, 150 N.H. 257, 260 (2003); In the Matter of Lockaby and Smith, 148 N.H. 462 (2002).
“If the petitioning parent meets [her] burden, the opposing party then has the burden of proving that the relocation is not in the best interests of the child. RSA 461–A:12.” In re Heinrich, 160 N.H. 650, 654 (2010).
In determining whether a parent may relocate and whether the proposed relocation is in the best interests of the child, courts must evaluate the following criteria (known as the Tomasko factors):
See Tomasko, 145 N.H. at 172; see also Pfeuffer, 150 N.H. at 260. No one of the above factors may be presumed to be dispositive. Id. It is important to keep in mind, in New Hampshire, the trial court has “the ultimate responsibility for determining and safeguarding the best interests of children.” Matter of Hoyt, No. 2017-0238, 2018 WL 4762416, at *4 (N.H. Oct. 3, 2018); In the Matter of Laura & Scott, 161 N.H. 333, 337 (2010).
If the judge does not think you are moving for a legitimate purpose or if the judge does not think that relocation is the best interests of your child, the Judge may deny your request to relocate. Due to the nuances of the relocation statute, it is best to consult a family law attorney before relocating.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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