We’ve written extensively about child support laws in New Hampshire when there is equal custody. The law has evolved over time and HB 1564 effective 2025, which amended RSA 458-C, is now clearer on how child support should be handled when there is equal custody. You can read our part 1 of our previous posts here and part II here.
Child Support Guidelines
Heath Gosselin filed to reduce the child support to his ex-wife, Kathryn Page. In NH child support cases, the first thing the Judge always has to do is calculate the “guidelines“. Using the income of both parents, and tables provided by law, the Judge figures out the guidelines number. The Judge should start with the presumption that the guidelines number will be the child support figure. The Judge, however, can vary from the guidelines (either up or down), but only when there is a good reason. The question raised by this case is – how should a Judge change child support when there is equal custody?
Child Support Cut to $0
In this case, the Judge calculated the guidelines amount of support at $529 per month. Then, however, he “varied” from the guidelines figure by reducing Heath’s child support to $0. Not only that, but the Judge ordered that the $0 support was retroactive to 2012, which is was when the petition to reduce the support was first filed. Furthermore, the Judge ordered that Kathryn must reimburse Heath for all the support she had received during this four-year period.
The Judge had two reasons for ordering no child support. First, Heath had 43% of the total custody. Not quite 50-50, but close. Second, Kathryn’s boyfriend paid for their mortgage and heating bill. So, her expenses were much lower than his. The New Hampshire Supreme Court, however, reversed the order. The Court felt that the Judge did not give enough reason to eliminate child support. The Court also held that there was little basis to force Kathryn to pay back the years worth of support that she had received.
How Much Child Support Should There Be When the Parents Have Equal Custody?
How should courts calculate child support in cases when the parents have equal custody? Lawmakers originally designed NH child support guidelines in an era when courts typically awarded the mother primary custody and the father weekend visits. Equal custody was uncommon. Over the years, things changed, and equal custody orders became much more common — yet for a long time, the law did not keep pace. In fact, the version of RSA 458-C:5, I(h) that was on the books until January 1, 2025 specifically provided that equal or approximately equal parenting time, by itself, was not enough to justify deviating from the guidelines.
That gap is exactly what produced cases like Gosselin and, later, Silva.
Update: The Legislature Has Finally Addressed This — HB 1564
Effective January 1, 2025, the New Hampshire legislature passed HB 1564, which repealed and completely rewrote RSA 458-C:5, I(h). The amendment also added new definitions to RSA 458-C:2 that matter a great deal to how the new rule works. At a top level, here is what changed:
New definitions. The law now defines “parenting time” as the period when a parent has physical responsibility for the children, and “parenting schedule” as the agreed-upon or court-ordered schedule specifying when each parent has parenting time. It also creates a defined category of “approximately equal parenting schedule,” meaning each parent has parenting time for more than 40 percent of the annual schedule, and a separate category for “substantially similar incomes,” meaning the parents’ gross monthly incomes differ by no more than 10 percent.
The new presumptions. Building on those definitions, the rewritten statute creates a tiered approach:
- If the parents have substantially similar incomes and an approximately equal parenting schedule, there is now a rebuttable presumption that $0 child support is appropriate.
- If the parents have substantially similar incomes and a substantially shared (though not quite equal) parenting schedule, there is a rebuttable presumption that some deviation from the guidelines figure is appropriate, even if not all the way to zero.
- If the parents do not have substantially similar incomes but do have an approximately equal or substantially shared parenting schedule, the guidelines amount is no longer treated as automatically appropriate or inappropriate. The court must decide whether the guidelines amount should apply, with the paramount consideration being whether any adjustment still allows the lower-earning parent to meet child-rearing costs in a similar or approximately equal style to the higher-earning parent.
A backstop rule. The amendment also added a notable guardrail: when parents have a substantially shared or approximately equal parenting schedule and there are no extraordinary circumstances, the resulting child support order should not leave the parent receiving support with a higher adjusted monthly income than the parent paying it, after accounting for taxes and FICA. The law carves out exceptions for situations like a child with significant medical needs, long distances between the parents’ homes, or unusual or unpredictable work schedules.
Other changes. HB 1564 also raised the self-support reserve from 115% to 130% of the federal poverty guideline for a single person, and added a definition of “eligible child care costs” tied to costs necessitated by a parent’s employment.
In short, the legislature has done what we hoped for back when we first wrote about the Gosselin case: it gave courts (and parents) a much more specific roadmap for handling child support when custody is equal or close to it, rather than leaving the analysis to case-by-case discretion.
Another Supreme Court Case (Decided Under the Old Law)
Since our last post, the New Hampshire Supreme Court addressed this issue again, before HB 1564 took effect. In the Silva case, the parents agreed to an equal parenting plan. The Judge ordered the father to pay child support. The “guidelines” amount of support, based on the father’s income, was $1,590 per month. The Judge reduced the father’s child support down to $533.80. Since the parents shared equal parenting time, this struck us as eminently reasonable at the time. The New Hampshire Supreme Court, however, disagreed.
Under the version of the statute in effect at that time, the Court held that when there is equal custody, a Judge could vary from the guidelines amount by considering three factors: how the parents shared “variable” expenses such as school, clothing, and medical costs; whether the equal custody arrangement reduced the lower-income parent’s “fixed costs”; and whether the lower-income parent had enough income to raise the children in a similar style to the higher-income parent.
The Supreme Court found that none of these factors supported the Judge’s decision to reduce child support, holding that the equal parenting plan did not reduce the mother’s fixed costs, such as housing.
Where Things Stand Now
The Silva decision illustrated just how unpredictable child support outcomes were for parents with equal custody under the old framework. Many parents, relying on common sense, would simply agree to reduced support rather than risk litigating it — but Silva made it harder to defend those agreements if challenged.
HB 1564 changes that calculus considerably. Parents with substantially similar incomes and an approximately equal parenting schedule now start from a presumption of $0 support rather than fighting uphill against guidelines and case law that assumed equal time alone meant nothing. Parents with disparate incomes still have a less mechanical, more individualized rule, but one explicitly grounded in comparable standards of living rather than a rigid guidelines figure with little room for adjustment.
If your custody arrangement involves equal or approximately equal parenting time and you have questions about how the 2025 amendment affects your existing or future child support order, contact our office to speak with an experienced NH family law attorney.