Preston v. Mercieri

• Citation: 133 N.H. 36,573 A.2d 128
• Decision Date: 11 April 1990
• Docket Number: No. 89-186,89-186
• Parties: Marie Rose PRESTON v. Lorraine Preston MERCIERI.
• Court: Supreme Court of New Hampshire

Page 128

573 A.2d 128

133 N.H. 36

Marie Rose PRESTON v. Lorraine Preston MERCIERI.

No. 89-186.

Supreme Court of New Hampshire.

April 11, 1990.

Fisher, Willoughby, Clancy, Woodman & Durand, Dover (Edward T. Clancy, on the brief and orally), for plaintiff.

Coolidge Professional Ass'n, Somersworth (Clyde R. Coolidge on the brief and orally), for defendant.

BROCK, Chief Justice.

This case requires us to consider the availability of court-ordered grandparent visitation, and to determine, for the first time, whether the adoption of a child by a stepparent, which automatically extinguishes the rights of a natural parent, also divests the court-decreed visitation rights of grandparents on that side. The defendant, Lorraine Preston Mercieri, appeals from an order of the Superior Court (Nadeau, J.) denying her motion to terminate visitation privileges previously awarded to the plaintiff. For the reasons that follow, we affirm.

The plaintiff, Marie Rose Preston, is the paternal grandmother of Ricky A. Preston, Jr., who was the only child born to her son, Ricky A. Preston, Sr., now deceased, during his marriage to the defendant, Lorraine Preston Mercieri. When the child was four years old, his father separated from the defendant and left the family home, filing for divorce on February 13, 1985, before he died suddenly on June 25, 1985. During the pendency of the divorce proceedings, and until his accidental death, Ricky A. Preston, Sr., resided with his mother, the plaintiff, and as a result, young Ricky visited his grandmother every weekend.

Tragically, however, the child suffered the separation of his parents, and the death of his father, only to become the subject of a bitter war between his mother and his grandmother. The child's devastating loss of his father was compounded, in a sense, by the loss of his grandmother, because the defendant refused, after her husband's death, to allow any further visitation between the plaintiff and her grandson. Not prepared to be easily shut-out, the plaintiff filed a petition in the superior court seeking formalized visitation rights, and on June 3, 1986, the court granted the requested rights, reasoning that the plaintiff had considerable love for her grandchild, and he for her, and that the grandmother was entitled to visits because it was "in the best interest of the child that they occur."

Noting the child's continued problems with nightmares and stutters, which developed during his parents' divorce action and worsened after his father's death, the court recognized the heart-wrenching effect upon the child of his family's intense hostility, and the emotional deficits suffered by the child as a result of the sudden cleavage of his family bonds. Because the parties could not agree upon the specifics of what constituted reasonable rights of visitation, and in particular, whether the plaintiff was permitted to have her grandchild stay overnight the court clarified that reasonable visitation included occasional overnights and weekends at her beach cottage in the summer. The defendant then appealed to this court, thereby creating another link in the lengthy procedural lineage of this case, and a pre-hearing evaluation was conducted, at which time the parties agreed to settle the matter, filing stipulations that were eventually approved by the superior court.

In the meantime, however, the defendant's present husband, David Mercieri, initiated adoption proceedings in the probate court, accomplishing the adoption in the fall of 1988, without reference to the pending litigation and without notice to the plaintiff. By letter dated November 11, 1988, the defendant's counsel unilaterally proclaimed the court order of visitation "null and void," advising the plaintiff's counsel that "Ricky has been adopted ... and thus your clients are no longer his legal grandparents." Seeking recourse, once again, through the superior court, the plaintiff filed a motion to enforce the stipulations, and the defendant, in turn, filed a motion to terminate further visitation. The court held that the plaintiff's entitlement to visit her grandchild survived the stepparent adoption, and ordered all parties to comply with the stipulation previously approved, warning the defendant that the court would not hesitate to exercise its authority, as justice required, if she interfered either directly or indirectly with the grandmother's exercise of her visitation rights. This appeal followed.

Pointing to RSA 170-B:20, the New Hampshire adoption statute, the mother claims that the New Hampshire adoption scheme severed her child, at law, from the family tree of his biological father, now deceased, and substituted a new father, David Mercieri, together with his lineal relationships, so that the child acquired the status of a natural son in respect to his stepfather and became a stranger to the blood-line of his natural father, thereby extinguishing the plaintiff's visitation rights and leaving the question of grandparental contacts solely to the defendant's own discretion and that of the adoptive father, just as it would be if the child had remained in the care and custody of his married biological parents. We disagree.

In most families blessed with a new generation of issue, the door to the young ones is unguarded and safe; grandparents do not watch to invade another's right or guard their own. But for grandparents cast-out from their grandchild's world, the closing door invites inquiry as to what effect, if any, visitation has upon the child's welfare. When grandparents have cherished a child since its birth, holding it, prattling, on their knees, sharing its moments of gladness and comforting it in hours of distress, the child's love and returned affection beget instinctive feelings of filial attachment and right.

At common law, however, the parental obligation to allow visitation was considered "moral, and not legal." Mimkon v. Ford, 66 N.J. 426, 431, 332 A.2d 199, 201 (1975) (quoting Succession of Reiss, 46 La.Ann. 347, 353, 15 So. 151, 152 (1894)). Thus, at common law, ascendants were bound to grandchildren only by the links of love and heredity, and neither generation could be heard to complain if, by sudden wrench, they were forced apart. Although courts sympathized with the plight of grandparents when, by reason of parental indifference or intolerance, access to a grandchild was denied, parental authority was generally deemed supreme with regard to the upbringing of offspring, and courts refused to interfere with child-rearing decisions that excluded grandparents and prohibited meaningful contact with grandchildren. See, e.g., Kanvick v. Reilly, 233 Mont. 324, 760 P.2d 743, 745 (1988) (under common law, grandparents had no right to visit grandchildren); In re Whitaker, 36 Ohio St.3d 213, 214, 522 N.E.2d 563, 565 (1988) (at common law, grandparents had no legal right of access to grandchildren); In re Marriage of Herreras, 159 Ariz. 511, 512, 768 P.2d 673, 674 (1989) (grandparents had no legal right of visitation at common law); Clark v. Evans, 778 S.W.2d 446, 448 (Tenn.App.1989) (at common law grandparents had no legal right to visit grandchildren).

Guarding against the State's encroachment upon parental rights, the Supreme Court of the United States has recognized a private realm of family life which the State cannot enter. Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944). The judicial reluctance to interfere with parental prerogatives derives, historically, from the notion that parents have a natural entitlement to the exclusive "companionship, care, custody, and management" of their children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1972). Adhering to this tradition of family autonomy, the Supreme Court has consistently emphasized the right of parents to raise their children in accordance with their own philosophies and beliefs, however at odds with the average, and has sustained the parenting right, like the right to marry and establish a home, as a fundamental liberty interest protected by the fourteenth amendment. Griswold v. Connecticut, 381 U.S. 479, 488, 85 S.Ct. 1678, 1683, 14 L.Ed.2d 510 (1965) (Goldberg, J., concurring) (citing Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923)). In New Hampshire, the rights of parents over the family are considered "natural, essential and inherent rights within the meaning of the New Hampshire Constitution, part I, article 2." In re Diana P., 120 N.H. 791, 798, 424 A.2d 178, 182 (1980), cert. denied, 452 U.S. 964, 101 S.Ct. 3116, 69 L.Ed.2d 976 (1981); State v. Robert H. ----, 118 N.H. 713, 716, 393 A.2d 1387, 1389 (1978). Thus, parents enjoy a constitutionally protected right to raise their children as they see fit, unfettered by undue State intrusion.

But, while the common law has long acknowledged that parental rights are "essential to the orderly pursuit of happiness by free men," Meyer v. Nebraska supra, and more significant and priceless than " 'liberties which derive merely from shifting economic arrangements,' " Stanley v. Illinois supra (quoting Kovacs v. Cooper, 336 U.S. 77, 95, 69 S.Ct. 448, 458, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring)), the parental interest in raising children without State intervention is not without limitation. Rather, the parental right of family autonomy is subject to a corresponding duty on the part of parents to adequately care for their children, and child-rearing rights are secured by the law only to the extent that parents discharge their obligation. See Purinton v. Jamrock, 195 Mass. 187, 201, 80 N.E. 802, 805 (1907). The State has a competing interest in the welfare of children within its jurisdiction, and may, as parens patriae, intervene in the family milieu if a child's welfare is at stake. Prince v. Massachusetts supra. Accordingly, parental rights are not absolute, but are subordinate to the...