Brauch v. Shaw

• Decision Date: 26 June 1981
• Docket Number: No. 80-237,80-237
• Citation: 432 A.2d 1,121 N.H. 562
• Parties: Ernest and Angela BRAUCH v. Madeleine Mary SHAW.
• Court: New Hampshire Supreme Court

Page 1

432 A.2d 1

121 N.H. 562

Ernest and Angela BRAUCH v. Madeleine Mary SHAW.

No. 80-237.

Supreme Court of New Hampshire.

June 26, 1981.

K. William Clauson, Hanover, on the brief and orally, for plaintiffs.

Stein & Viles, Concord (Bruce E. Viles, Concord, on the brief and orally), for defendant.

BOIS, Justice.

This case arises from a petition filed by Ernest and Angela Brauch seeking custody of a child, Rupert Brauch, born out of wedlock to the plaintiff Ernest Brauch and the defendant Madeleine Mary Shaw. The issues presented by the defendant's appeal are whether the petition meets the requirements of RSA ch. 458-A (Supp.1979), the Uniform Child Custody Jurisdiction Act, necessary to confer jurisdiction on a New Hampshire court, and, if so, whether the superior court may exercise this jurisdiction under the circumstances of this case. A third issue, whether a superior court has jurisdiction to determine which natural parent shall have custody of their illegitimate child, also presents itself on appeal. We hold that the superior court has jurisdiction to make a custody award to either natural parent and that it could exercise the jurisdiction if it finds in its discretion that it would be in the best interests of the child to do so.

Ernest Brauch and Madeleine Shaw are the natural parents of a child, Rupert, born September 26, 1969, in England. At the time of Rupert's birth, Mr. Brauch and Mrs. Shaw were not married, and they have never been married to each other. Mr. Brauch has acknowledged Rupert as his son since birth, and Rupert's birth certificate bears Brauch as the surname. Mr. Brauch, however, has never formally legitimized Rupert. Mrs. Shaw admits that Mr. Brauch is the father of Rupert.

Mr. Brauch, a naturalized American citizen, is now married to Angela Brauch and is a resident of Hanover, New Hampshire, having moved there in the spring of 1979. Mrs. Shaw, an English citizen, is now married to Dr. Jeremy Shaw and is a resident of London, England. Rupert lived with Madeleine Shaw in London until December 1978, during which time Ernest Brauch supported the child to some extent and extensively and periodically visited Rupert.

In December 1978, Mrs. Shaw sent Rupert to New York to visit with the Brauchs for the holiday season. Two days before Rupert was scheduled to return to England, Mr. Brauch telephoned Mrs. Shaw to express concern for Rupert's happiness and to tell her that Rupert wanted to extend his visit. The next day, after talking with Rupert, Mrs. Shaw agreed to an extension of Rupert's visit. Madeleine Shaw now asserts that she acquiesced only under the protest that "she had no other choice."

In early February 1979, the Brauchs, with Rupert, moved to Rio de Janeiro, Brazil. They returned to the United States in May, and in June finally settled in Hanover, New Hampshire, where Rupert has since lived and attended school. The Brauchs and Rupert continued to communicate with Mrs. Shaw throughout this period, and Ernest Brauch twice offered Mrs. Shaw the opportunity to visit with Rupert in Brazil and in the United States at his expense. Mrs. Shaw declined both offers.

Madeleine Shaw now asserts that she continued to object to Rupert remaining with the Brauchs and to ask for his return. In addition, although admitting that she received telephone calls and an offer to visit during this period, Mrs. Shaw contends that from mid-April to mid-July of 1979 she was unable to locate Rupert and the Brauchs until she read in a London newspaper that Mr. Brauch had been arrested in New Hampshire under an extradition warrant. Mrs. Shaw, however, did not commence legal proceedings to obtain custody of Rupert until February 1980.

On March 13, 1980, the High Court of Justice, Family Division, London, upon petition by Madeleine Shaw, issued an ex parte wardship order, making Rupert a ward of the Court as the first step in awarding custody. The order was personally served on Ernest Brauch on March 21, but, for procedural reasons, the order lapsed on April 3. According to Mr. Brauch, the first time he learned that Mrs. Shaw objected to Rupert staying with him was when the order was served on him. He asserts that, previously, Rupert's stay was by mutual agreement between Mrs. Shaw and himself, and was based on Rupert's strong desires to remain with him.

When the order was served on him, Mr. Brauch retained solicitors in England who filed an appearance for him. Mr. Brauch also filed a petition for custody determination in Grafton County Superior Court on April 10, 1980. On the same day, the English Court issued a second wardship order that was served on Mr. Brauch on April 14. On April 30, Johnson, J. held a hearing on the Brauch's petition for custody. At the hearing, the court first considered Madeleine Shaw's motion to dismiss for lack of jurisdiction and as an inconvenient forum. After hearing testimony concerning the court's jurisdiction, the court proceeded with a hearing on temporary custody orders. Counsel for Mrs. Shaw, however, declined to participate in the temporary custody hearing.

On May 1, Johnson, J. denied Mrs. Shaw's motion to dismiss, concluding that the court had jurisdiction under RSA 458-A:3 (Supp.1979). The court based its decision on the grounds that New Hampshire is Rupert's "home state" and that it is in Rupert's best interests that the court assume jurisdiction because Rupert and his father have a significant connection with this State and because substantial evidence concerning Rupert's present and future interests exists within this State. The court then granted temporary custody of Rupert to Ernest and Angela Brauch and appointed a guardian ad litem.

That same day, Madeleine Shaw filed a motion for reconsideration on the basis that Mr. Brauch was being extradited to England to face charges of fraud on commodity brokers and of currency violations. Since July 1979, Mr. Brauch had been incarcerated in Grafton County Jail pending a decision on his extradition. He finally waived extradition and was returned to England on May 8, 1980. The court denied the motion on May 7.

In England, on May 8, the High Court of Justice stayed its proceedings on the matter of Rupert's custody pending a "determination of the American proceeding for custody or on the return of the said minor to within the jurisdiction of this Court...." See RSA 458-A:6 (Supp.1979) ("Simultaneous Proceedings in Other States")

Madeleine Shaw next filed a motion with the superior court to decline jurisdiction due to inconvenient forum because Ernest Brauch was incarcerated in England awaiting trial. In a decree dated July 14, 1980, Johnson, J. denied the motion and further stated that:

"(T)his Court finds that New Hampshire does have jurisdiction over the custody of Rupert provided that one of the two potential custodial parents actually resides in New Hampshire as of August 31, 1980. If both of the potential custodial parents are residing in England on said date, whether they be there voluntarily or not, the Court finds that the best interests of Rupert would be served by having the matter of custody determined by the English courts. Counsel for both of the parties are ordered to keep the Court informed as to the status of Mr. Brauch as August 31st approaches and appropriate motions shall be filed depending upon this status."

The last action before the parties filed briefs for the appeal in this court occurred at a hearing on September 9, 1980, before Johnson, J. on another motion by Madeleine Shaw to decline jurisdiction due to inconvenient forum. At that hearing, Mr. Brauch's English attorney, John Blackburn Gettings, testified concerning the criminal proceedings pending against Mr. Brauch in England. Gettings stated that, in his opinion, Mr. Brauch would be freed by the English authorities by mid-October 1980, and that, because of an English deportation order, Mr. Brauch would be prevented from contesting any civil issues in England. Mrs. Shaw's motion was denied on September 10. See RSA 458-A:4 (Supp.1979) ("Notice and Opportunity to Be Heard").

The defendant appeals the denial of her motion to dismiss for lack of jurisdiction based on the plaintiff's failure to meet the necessary jurisdictional requirements of RSA 458-A:3 (Supp.1979) and appeals the denials of her motions to decline jurisdiction as an inconvenient forum under RSA 458-A:7 (Supp.1979). Before we can address those issues, however, we must decide whether the superior court has the jurisdiction to determine custody of an illegitimate child between the natural parents.

The superior court does not have "jurisdiction to appoint a custodian of minors ... since the right of custody is a legal incident of guardianship, and the appointment of guardians is a matter within the exclusive jurisdiction of the probate court." Leclerc v. Leclerc, 85 N.H. 121, 123, 155 A. 249, 151 (1931). When the case, however, does not involve the appointment of a guardian, but relates to a disagreement between parents concerning the exercise of existing joint rights of custody, "the (superior) court might regulate their joint rights by awarding custody to either parent permanently or temporarily...." White v. White, 77 N.H. 26, 29, 86 A. 353, 355 (1913); see Gage v. Gage, 66 N.H. 282, 286, 29 A. 543, 545 (1890). Accordingly, if both the natural father and the natural mother of a child have existing joint custody rights, then the superior court has authority to enforce and regulate those rights.

In New Hampshire, the common law has been that "the mother of an illegitimate child has a right to the custody and control of the child ... (and) (t)he putative father has no right to the custody and control of the child...." Hudson v. Hills, 8 N.H. 417, 418 (1836); see State v. Byron, 79 N.H. 39, 40, 104 A. 401, 402 (1918). The question, therefore, is whether the common law can continue to be the prevailing standard for determining custody of illegitimate children.

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