This is one of the most common — and most stressful — questions we hear at Cohen & Winters.
You weren’t married. You break up. And suddenly you’re wondering: What happens to our child? Who decides custody? Do I have rights?
Take a breath. New Hampshire law provides a structured process for this situation, even though it can feel overwhelming at first. Courts focus on the child’s best interests and typically address things like decision-making responsibility, parenting time, and child support through a court-approved parenting plan.
Below is a general overview of how custody/parenting issues are handled when parents were never married, what the court looks at, and what you should know before taking your next step. (Every family is different, so for advice about your specific situation, talk with a lawyer.)
First Things First: Both Parents Matter
In New Hampshire, being unmarried does not mean one parent automatically “wins” custody. Courts decide parenting arrangements based on the child’s best interests, and they do not favor one parent over the other based on gender.
In many families, the goal is for a child to have a strong relationship with both parents, as long as that is safe and healthy for the child.
That said, in unmarried-parent cases, the legal process often starts with confirming legal parentage/paternity—because until a parent is legally recognized, the court can’t meaningfully allocate parenting rights and responsibilities. (For many fathers, that’s the key first step.)
Establishing Parentage
If the parents were married when the child was born, parentage is often presumed.
If you were never married, parentage may need to be formally established before the court can issue final orders allocating parental rights and responsibilities.
In New Hampshire, that usually happens in one of two ways:
Affidavit (Voluntary Acknowledgment) of Paternity: The parents sign and file a sworn, notarized affidavit with the appropriate city/town clerk. This affidavit has the legal effect of establishing paternity (unless later rescinded under the applicable rules).
Court order: A parent (or the State in support cases) files a paternity action, and the court adjudicates parentage. Genetic testing may be part of that court process if parentage is disputed.
Until parentage is legally established, a father may not be able to fully exercise parental rights through the court. Once parentage is established, both parents have legal standing to seek parenting orders—and the court then decides the parenting plan based on the child’s best interests.
Custody Isn’t About “Winning”
New Hampshire doesn’t really use the word “custody” the way people often mean it. Instead, the court talks about parental rights and responsibilities.
Those issues usually fall into two main categories:
Decision-making responsibility (often what people mean by “legal custody”)
Residential responsibility / parenting time (often what people mean by “physical custody”)
Depending on the circumstances, these can be:
Shared/joint,
Divided by topic (for example, one parent has final say on certain issues), or
Primarily assigned to one parent.
Courts make these decisions based on the child’s best interests, and the law does not apply a preference for one parent over the other based on gender.
New Hampshire law, as of new legislation effective 2025, also requires the court to explain its reasons if it concludes that approximately equal parenting time is not in the child’s best interest.
The Big Question: What’s in the Child’s Best Interests?
Everything comes down to one standard: the best interests of the child.
The court looks at a wide range of factors, including:
Each parent’s ability to meet the child’s needs
The child’s relationship with each parent
How well the parents can communicate and cooperate
Each parent’s involvement in daily care (school, medical, routines)
Stability of each parent’s home
Any history of abuse, neglect, or substance misuse
The child’s adjustment to home, school, and community
In some cases, the child’s wishes (depending on age and maturity)
Notice what’s not on the list: who makes more money, who “left” the relationship, or who’s more likable.
This isn’t about punishment. It’s about structure, stability, and the child’s long-term well-being.
Temporary Orders Come First
If parents separate and don’t agree, the court can issue temporary parenting orders while the case is pending.
These orders cover things like:
Where the child lives
Parenting time schedules
Decision-making authority
Child support
Temporary orders often set the tone for the final outcome, which is why early legal guidance matters. What feels “temporary” can quickly become the new normal.
What If We Agree on a Plan?
Good news: New Hampshire courts strongly encourage parents to reach agreements when possible.
If you and the other parent can work out a parenting plan that serves your child’s best interests, the court will usually approve it — as long as it’s reasonable and complete.
At Cohen & Winters, we often help parents:
Draft clear, enforceable parenting plans
Avoid vague language that leads to future conflict
Think through real-life logistics (holidays, school breaks, transportation)
An agreement today can save you years of stress later.
What If We Don’t Agree?
When parents can’t agree, the court steps in.
That may include:
Mediation
Parenting education requirements
A guardian ad litem (GAL) in contested cases
A full hearing where a judge makes the final decision
These cases are emotionally charged. Having experienced counsel matters — not just to advocate for you, but to keep the focus where it belongs: your child.
A Quick Word on “Primary Custody”
Many parents ask, “Do I need primary custody to protect my rights?”
Not necessarily. And part of the confusion is language: New Hampshire courts don’t usually talk in terms of “primary custody” anymore. Instead, the court allocates parental rights and responsibilities, including:
Decision-making responsibility (joint or sole), and
Residential responsibility / parenting time (how time is scheduled and where the child is primarily living on a day-to-day basis).
New Hampshire law encourages parents to share in raising their children and—when it’s in the child’s best interests—to support approximately equal parenting time. But what matters most is meaningful involvement, consistency, and the ability to co-parent—not the label someone uses.
That’s where smart legal strategy comes in.
Our family law practice has extensive experience handling parenting cases involving unmarried parents throughout New Hampshire. We understand:
The emotional weight of these cases
The legal nuances that can shape outcomes
How to advocate firmly without inflaming conflict
Whether you’re just separating, already disagreeing, or need to formalize an existing arrangement, we help you protect your parental rights while keeping your child’s best interests front and center. Contact our family law team to help you determine the best course of action for your needs.