In re R.A., 2004-721.

CourtSupreme Court of New Hampshire
Writing for the CourtBroderick
Citation891 A.2d 564
PartiesIn the Matter of R.A. and J.M.
Docket NumberNo. 2004-721.,2004-721.
Decision Date30 December 2005
891 A.2d 564
In the Matter of R.A. and J.M.
No. 2004-721.
Supreme Court of New Hampshire.
Argued: September 29, 2005.
Opinion Issued: December 30, 2005.

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Upton & Hatfield, LLP, of Concord (Lauren S. Irwin and Matthew R. Serge on the joint brief, and Kenneth J. Barnes orally), for the petitioner.

Law Office of J. Brandon Giuda, PLLC, of Epsom (J. Brandon Giuda on the brief and orally), for the respondent.

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Stephen A. Cherry & Associates, PLLC, of Henniker (Sunny Mulligan on the joint brief), for the intervenor.

Mary Pilkington-Casey, of Concord, by brief, for the Franklin Pierce Administrative Law and Advocacy Clinic, as amicus curiae.


R.A. (Mother), the petitioner and mother, and R.R. (Grandmother), the intervenor and maternal grandmother, appeal the award of custody of a minor child (Daughter), by the Superior Court (Brennan, J.) to J.M. (Father), the respondent and father. At issue is the applicability of RSA 458:17 (2004) (repealed Oct. 1, 2005) in custody disputes between unwed parents, and its constitutionality generally. We affirm in part, vacate in part, and remand.


The trial court made the following findings of fact. Daughter was conceived during a one-time sexual encounter in 1993 between Mother and Father, and was born on March 4, 1994. Although Daughter is the child of Mother and Father, only Mother is listed on her birth certificate. Mother and Father were not married to each other at the time of Daughter's conception or birth; Father subsequently married another woman in 2000.

Mother informed Father of the pregnancy in 1993, shortly after she discovered it herself. Father admits that, several weeks after their encounter, Mother informed him that she might be pregnant. According to Father, Mother never confirmed the pregnancy or Daughter's birth, even though he remained in New Hampshire for another year after Daughter's conception. Father asserts that he first became aware of Daughter's birth when he was contacted in 1995 by the New Hampshire Department of Health and Human Services (HHS).

At that time, Father was unemployed and had no permanent address. As a result, he gave HHS his grandmother's address. Mother claims that Father acknowledged to HHS that he was possibly Daughter's father. Father told HHS that he was willing to take a paternity test, but now asserts that it was not done either because he was not given proper notice, or because the testing site was changed at the last moment. Mother asserts that from 1995 to 2000, Father avoided taking the test, and did not take responsibility for their daughter.

During that time, Daughter lived with Mother and Grandmother. Grandmother was present at Daughter's birth, and ten days later Daughter and Mother moved into Grandmother's home in Goshen. Daughter has spent approximately half her life living in Grandmother's home, and the balance with Mother in her own home. Although there have been long periods when Mother left Daughter solely in Grandmother's care, there were occasions when Mother lived with her daughter in Grandmother's home. Even when Daughter and Mother lived in their own home, Daughter would still spend significant time with Grandmother.

Grandmother has participated extensively in Daughter's life, taking her to doctor's appointments and contributing to her educational and extracurricular activities. She asserts that, even when Mother and Daughter lived in their own home, they continued regular and consistent contact with her. She also contends that she played the primary parental role in Daughter's life, particularly from 2002 to 2004. Father, however, alleges that Mother has been Daughter's primary caregiver. He points out that, during the three years when Daughter and Mother lived in their

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own home, Grandmother acted only as a secondary babysitter and that Mother used an unrelated person as the primary babysitter.

When Daughter was six and one-half years old, at the urging of his wife, Father took a paternity test which confirmed that he was Daughter's father. In February 2001, one month shy of Daughter's seventh birthday, Mother and Father entered into a uniform support order, and Daughter met her father for the first time. Father also added Daughter to his health insurance and began paying child support, although the trial court found that he was $2,875 in arrears. Father then began visiting Daughter and speaking to her on the phone.

By 2002, Daughter's relationship with Father had progressed to the point that she spent three nights in Massachusetts with Father and his wife. During that summer, Mother experienced significant distress as a result of her alcohol and drug addictions. Both Grandmother and Father cared for Daughter, with Daughter spending five or six weeks in Father's home in Massachusetts.

Due to what they considered to be inappropriate behaviors, Father and his wife suspected that Daughter was suffering the effects of emotional, physical or sexual abuse. In August 2002, they took her to a physician who confirmed that Daughter had likely suffered some sort of abuse. Father informed Mother and Grandmother of his suspicions and told them that he and his wife would like to keep Daughter in Massachusetts.

Mother became concerned that the abuse had occurred while Daughter was in Father's home that summer. Fearing that Father would not return Daughter to her, Mother filed a motion for an ex parte order of custody. A temporary hearing was held in August 2002, at which a guardian ad litem (GAL) was appointed to represent Daughter's interests. The court temporarily awarded Mother and Father joint legal custody of their daughter, but granted Grandmother primary physical custody of Daughter, subject to Father's visitation rights on alternate weekends.

As a result of comments Daughter made to another physician and a therapist, Mother, Grandmother and the GAL believed that Daughter had been sexually abused by Father's wife, and in January 2003, Mother filed petitions alleging abuse and neglect against Father and his wife. In June 2003, the court dismissed the petition against Father and stated, with respect to his wife, that it was "not persuaded by a preponderance of the evidence" that she had sexually abused Daughter. The court then added, "Unfortunately, the court is persuaded by the evidence and testimony presented that the child has been exposed to sexual behavior and may well have been sexually abused or assaulted — but not by [Father's wife]." The court did not state, however, who it thought might have abused Daughter.

In October 2003, Grandmother filed a motion to intervene in the custody dispute between Mother and Father. She requested that the court award legal custody of Daughter jointly to Grandmother, Mother and Father, and that the court award her primary physical custody. Both Mother and the GAL assented to the motion, arguing that RSA 458:17, VI specifically allowed the superior court to award custody to a child's grandparent, and that granting Grandmother's requests would be in Daughter's best interest. Father opposed the motion, arguing that Grandmother lacked standing. The trial court subsequently allowed Grandmother's intervention.

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In August 2004, the trial court issued its ruling, which included a legal opinion concerning whether a grandparent could be granted custody under RSA 458:17, VI, as well as a final decree detailing the terms of the custody arrangement. In its legal opinion the court stated that Grandmother "has been a true `parent' to [Daughter]" and that "[b]oth of [Daughter's] natural parents should be grateful that [Grandmother] has done so much for their child." The trial court determined, however, that Father had "the right to primary physical custody of [Daughter] as well as the responsibilities that go with that right." It rejected the contention of Mother, Grandmother and the GAL that RSA 458:17, VI "was intended to apply in a situation where a natural parent of the child, who is not unfit and who poses no danger of harm to the child, seeks legal and physical custody of the child." The court then observed that, even if this were the legislature's intention, "the provision would probably be unconstitutional." It cited the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), as supporting this determination.

The final decree granted legal custody to Mother and Father, but not to Grandmother, and gave final decision-making authority to Father rather than Mother. It also explicitly awarded primary physical custody to Father and granted Mother supervised visitation rights with her daughter at Grandmother's home and under Grandmother's supervision. However, the final decree also adopted, by reference, several of the findings of fact and rulings of law proposed by Mother, Father and Grandmother. Many of them are inconsistent with each other, as well as with the final decree itself. For example, despite the plain language of the final decree, the court granted Father's requested legal rulings that: (1) Mother was not fit to exercise legal or physical custody of Daughter; (2) physical custody be awarded to Father only; and (3) joint legal custody be awarded to Father and Grandmother, and not to Mother.

Mother, Grandmother and the GAL filed motions for reconsideration. In response, the court made some corrections with respect to child support, post-secondary educational expenses, and miscellaneous expenses. While the court granted Grandmother's request to stay the order pending this appeal, the balance of the parties' post-decree motions were denied, leaving in place the inconsistent findings of fact and rulings of law.

On appeal, Mother and Grandmother argue that, in general, third parties may be awarded custody when it is in a child's best interest, and that the trial court...

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