2006-730, IN THE MATTER OF RICHARD L. STAPLEFORD AND CHERYL STAPLEFORD

Walker & Buchholz, P.A.

No. 2006-730

Derry Family Division

guardian ad litem (GAL) to represent the interests of the parties’ two children. 10, 2004, the parties filed for divorce. On July 27, 2005, the court appointed a years old, appeal a recommended order of a Marital Master (Cross Richard Stapleford (father) were married on October 17, 1992. On December HICKS, J. The parties’ minor children, currently thirteen and fifteen The record supports the following. Cheryl Stapleford (mother) and

Mark H. Campbell

Law Offices of Paula J. Green, PLLC

intervene in their parents’ divorce proceedings. We affirm. approved by the Derry Family Division (Sadler, J.) denying their motion to

brief. THE SUPREME COURT OF NEW HAMPSHIRE , of Manchester, for Richard L. Stapleford, filed no

the brief and orally), for Cheryl Stapleford.

and orally), for the children.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as test and denying their motion to intervene; (3) they have a due process right to p. 2 unsustainable exercise of discretion in failing to apply the proper intervention intervene as parties to their parents’ divorce; (2) the trial court committed an On appeal, the children argue that: (1) they have a statutory right to

Court’s Temporary Order dated June 14, 2006.

cause concern about the appropriateness of the

examples are also not qualitatively different as to

those specifics from the parties themselves, but the

do, but not only has the Court already heard some of

examples than the GAL of why the children feel as they

The children’s attorney offers more specific

preferences. He further noted in his order: represented the children’s best interests and had adequately reported their The master denied the motion to intervene, finding that the GAL had

parenting harder, and otherwise confuse them. would unduly empower the children, encourage them to violate rules, make whom they wanted to live. The GAL opposed intervention, asserting that it in his opinion, had more to do with their familiarity with Chester than with want to be there for their grandparents.” He also noted that their preference, “they lived in Chester their entire life, their grandparents are ill . . . and they explained that the children wanted to live in Chester with their father because had already represented the children’s preferences in his reports. The GAL

The mother argued that intervention was unnecessary because the GAL

GAL makes a recommendation contrary to their preferences. with RSA 461-A:6, II (Supp. 2006) if they are not allowed to intervene when a 2 court cannot give substantial weight to the children’s preferences consistent process and statutory right of the children to be heard. He argued that the At a hearing held on the motion to intervene, Buchholz asserted a due

on behalf of the children. children were not parties to the case. Buchholz then filed a motion to intervene the court’s temporary orders. The court denied the motion because the August 9, 2006, Buchholz filed a motion, on behalf of the children, to modify the father retained Attorney Kevin Buchholz to represent the children. On Milford with their mother. Subsequently, upon his attorney’s recommendation, recommending, against their preference, that the children live primarily in On May 17, 2006, the GAL submitted a preliminary report

awarding the mother primary physical custody of the children. On April 14, 2005, the Derry Family Division entered a temporary order p. 3 Fourteenth Amendment of the United States Constitution and Part I, Article 2

The children next argue that their due process rights under the

the legal system. See notwithstanding, and minors do not have the same legal rights as do adults in regarding the issue of custody. However, the children are minors, maturity right and interest involved in the outcome of the divorce, most notably seeking to intervene in their parents’ divorce. The children arguably have a In New Hampshire, this standard has never been applied to children

and apparent; such as would suffer if not indeed be sacrificed were the court to in a case must have a right involved in the trial and his interest must be direct traditional intervention test, which provides: “A person who seeks to intervene intervention test and denying intervention. The children point to the unsustainable exercise of discretion in failing to apply our customary traditional intervention test. We next address the children’s claim that the court committed an court committed an unsustainable exercise of discretion in failing to apply the intervene in their parents’ divorce. Accordingly, we cannot say that the trial test, therefore, cannot be applied to the minors in this case to allow them to 2006); see also 43 C.J.S. Infants § 329 (2004). The traditional intervention representation of a minor’s interests through a GAL. See RSA 461-A:16 (Supp. participate in litigation in their own names.”). This is why the law provides for common law . . . children do not possess the requisite legal capacity to

de intervene for mature minors. We review questions of statutory interpretation (quotations, brackets and emphasis omitted). The children argue that RSA 461-A:6, II creates a statutory right to, 134 N.H. 32, 35 (1991)

proceedings. not create a right for mature minors to intervene in their parents’ divorce and we will not add those words to the statute. Accordingly, the statute does 298, 300 (1994). Here, RSA 461-A:6, II does not address intervention at all, the lawmakers did not see fit to include. Appeal of Astro Spectacular, 138 N.H. can neither ignore the plain language of the legislation nor add words which meaning to the words used by the legislature. Boulais, 150 N.H. at 218. We construing a statute, we examine its language, ascribing the plain and ordinary determination of parental rights and responsibilities.” RSA 461-A:6, II. When give substantial weight to the preference of the mature minor child as to the minor child is of sufficient maturity to make a sound judgment, the court may pertinent part, that “[i]f the court finds by clear and convincing evidence that a novo. State v. Boulais, 150 N.H. 216, 218 (2003). The statute states, in

intervene. We address these issues in order. intervene; and (4) they were denied due process at the hearing on the motion to without their intervention. We find that the children’s interests are well p. 4 We next address the risk of an erroneous outcome for the children

interest . . . is in the custodial outcome.” Miller We first address the children’s interest. The minors’ “most immediate

substitute procedural requirements would entail. In re Father 2006-360 function involved and the fiscal and administrative burdens that additional or procedural safeguards; and (3) the government’s interest, including the procedures used and the probable value, if any, of additional or substitute action; (2) the risk of an erroneous deprivation of such interest through the balancing test, considering: (1) the private interest affected by the official permitted to intervene in their parents’ divorce by employing a three-prong 4 Next, we determine whether due process requires that the children be

in satisfaction of the first prong. aim to protect the children’s interests by achieving the best outcome for them, (Supp. 2006) includes many factors for the court’s consideration, all of which whether that is in line with their preferences at the time or not. RSA 461-A:6 specifically, the children’s interest is in achieving the best possible outcome,

335 (1976). N.H. ___, ___, 921 A.2d 409, 411 (2007); Mathews v. Eldridge, 424 U.S. 319,

implicated. Appeal of Town of Bethlehem analysis is to determine whether a legally protected interest has been process argument. Cf right to intervene in their parents’ divorce. The first step of a due process using the word “substantive” is insufficient to articulate a substantive due We first address the children’s argument that they have a due process process,” the brief addresses purely procedural due process concerns. Merely We first note that although the children’s brief refers to “substantive due

federal opinions for guidance only. State v. Ball 68. We address the children’s argument under the State Constitution, citing liberty interest in the outcome of their parents’ divorce.” Miller, 677 A.2d at assume in this case, without deciding, that the “children have a [protected]

Constitution. In re Brittany S., 147 N.H. 489, 491 (2002). This court is the final arbiter of the due process requirements of the State

omitted)). Accordingly, we will conduct only a procedural due process analysis. developed legal argument, is insufficient to warrant judicial review.” (citation laundry list of complaints regarding adverse rulings by the trial court, without

the trial court’s denial of their motion to intervene. of the New Hampshire Constitution were violated at the hearing below and by p. 5 Affirmed

they were denied due process at the hearing on the motion to intervene. intervene in their parents’ divorce, we need not address their argument that Given that we hold, as a matter of law, that the children have no right to

concurred. circumstances as the Federal Constitution, see BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, J J., State Constitution is at least as protective of individual liberties in these have no due process right to intervene in their parents’ divorce. Because the Accordingly, after weighing the above factors, we hold that the children 5

the Federal Constitution. 408, 414 (2000); Mathews, 424 U.S. at 335, we reach the same result under

Additionally, we agree with Miller best interests of the children are well-protected by the current system. interests of the child.” RSA 461-A:6, I. As discussed above, we find that the would entail. In divorce proceedings, the State’s primary interest is “the best and the fiscal and administrative burdens that intervention by the children right to intervene in their parents’ divorce litigation. Finally, we examine the State’s interest, including the function involved that would ensue if we were to hold that every mature minor has a due process advocate for their individual preferences. We need not further detail the chaos siblings disagree among themselves, they could each hire their own attorney to depose and cross-examine witnesses, and appeal the court’s ruling. Should 70. If children were allowed to intervene, they could participate in discovery, exponentially by the involvement of children as parties.” Miller, 677 A.2d at

mistakes made by the GAL, through cross-examination or otherwise. A parent who opposes the GAL’s recommendation will likely expose any nature of a divorce proceeding provides an effective check and balance system. disciplinary action under RSA 461-A:16, VI(c), (d). Further, the adversarial with a minor’s wishes. Poorly performing GALs are subject to fines and not accept the GAL’s recommendation, and the court may agree or disagree investigation and advocates for the children’s best interests. The court need also RSA 461-A:16. RSA 461-A:16 ensures that the GAL conducts a detailed best interest of the children in all of its complex dimensions.” Id. at 70; see protected by the existing process. “The [GAL] is already an advocate for the