2008-326, I/M/O JAMIE M. HUFF AND LAWRENCE R. HUFF

The petitioner and mother, Jamie M. Huff, appeals the

Johnson on the brief and orally), for the respondent. Law Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. to press. Errors may be reported by E-mail at the following address:

brief and orally), for the petitioner. Minutelli Law Office, PLLC, of Portsmouth (Steven J. Minutelli on the

IN THE MATTER OF JAMIE M. HUFF AND LAWRENCE R. HUFF

editorial errors in order that corrections may be made before the opinion goes No. 2008-326 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Ossipee Family Division Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as preferred to transport the child herself the entire distance to the prison. p. 2 mother’s residence to the prison – approximately two hours each way.

siblings, whom he otherwise would not have time with.

recommendation; however, because the child is only eighteen months old, she also stated that this arrangement would be best considering the drive from the arrangements for the children to visit. The mother agreed with the GAL’s The GAL stated that, instead, the mother and Wickman could make he cannot exercise and thereby giving

Sunday. This will allow the child to have time with his two half up at approximately 8:00 on Friday and returned at 4:00 on acceptable to the prison and Petitioner. The child shall be picked

essentially delegating his remaining parenting time to Wickman or Burns. He spend the rest of the weekend with his half-siblings. He stated that he was weekend visitation would be to allow the child to visit with his half-siblings. Friday with Wickman or Burns, visit him during the prison visiting hours, and the trial court committed legal error in awarding the father parenting time that child will reside with the mother except:

related is another thing.” The GAL acknowledged that the only reason for the and 11:00 a.m. Thus, the father proposed that the child stay overnight on transporting a child is one thing, staying a weekend with people that are not show that the father’s parenting plan was more appropriate than her plan; (2) child the remaining distance to the prison. The GAL stated: “I think father’s recommendation; specifically, the parenting schedule provides that the

New Hampshire State prison, with Mr. Huff’s time to be in the

could only visit with the child at the prison on Saturdays between 8:30 a.m. On appeal, the mother argues: (1) there was insufficient evidence to his half-siblings. The parties represented to the trial court that the father child half-way and Burns, or another acceptable third party, transport the amount of actual parenting time with the child. The trial court adopted the Burns facilitate visitation at the prison and allow the child time to bond with

Mr. Huff shall have parenting time one weekend per month at the

parenting time one Saturday per month and that the mother transport the Each recommended parenting plan called for the father to have the same of the father), or another third party. The father planned to have Wickman or

The guardian ad litem (GAL) recommended that the father be awarded between himself at the prison and Wickman, Cheryl Burns (a long-time friend weekend of parenting time per month. He planned to allocate the weekend State Prison. At the final divorce hearing, the father requested one full

guilty to a felony and was sentenced to three to six years in the New Hampshire In November 2007, while the divorce was pending, the father pleaded supports the trial court’s order in this case.

p. 3 authority. We must, therefore, determine whether application of this factor

care for his child during the period of incarceration. Hampshire.”

the trial court as to what extent incarcerated parents may delegate their to exercise parental responsibilities. The statute, however, does not instruct Thus, the legislature has acknowledged that incarceration affects one’s ability 3

legislature included this factor because an incarcerated parent is unable to statutory, and the best interests of the child guide all custody decisions in New upon parental abilities.

any unique issues that arise as a result of incarceration.” RSA 461-A:6, I(k). visitation with unrelated third parties. In fact, we have held that custody

Our case law, as well as that of other jurisdictions, suggests that the argument. “The superior court’s jurisdiction to award custody is purely fundamental right to parent. We first address the mother’s statutory visitation directly to a third party, we must examine the effect of incarceration over her objection exceeds its statutory authority and infringes upon her between parents. third party. In evaluating whether such a delegation is equivalent to granting party, but rather to an incarcerated father who delegated it to an unrelated

whole. a parent is incarcerated, the reason for and the length of the incarceration, and other third parties. There is therefore no express statutory authority to order interest of the child and determining parental rights and responsibilities is “[i]f Among the factors the trial court “shall consider” in evaluating the best

argues that the trial court’s decision to award parenting time to a third party responsibilities. The trial court has broad statutory authority to allocate rights the trial court’s order does not expressly grant visitation to an unrelated third In the Matter of Nelson & Horsley, 149 N.H. 545, 549 (2003). Here, admittedly, cannot be awarded to an unrelated third party over the objection of a fit parent. intent of the legislature as expressed in the words of a statute considered as a

grandparents. RSA chapter 461-A is silent as to custody or visitation with A:6, V, the trial court may award parenting time to stepparents or authority to order visitation with third parties is limited. Pursuant to RSA 461between the child and both parents. See id. By contrast, the trial court’s

incarcerated parent’s visitation can be delegated to a third party. The mother RSA chapter 461-A (Supp. 2008) pertains to parental rights and

State v. Gallagher, 157 N.H. 421, 422 (2008).

(2006). In matters of statutory interpretation, we are the final arbiter of the

In the Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203,

The crux of the mother’s arguments depends upon whether an

applying the best interest standard. third party; and (3) the trial court committed legal error by inappropriately actually exercise.

may only award the incarcerated parent that visitation time which he can

that the incarcerated parent was unable to care for the child during her On appeal, the Montana Supreme Court reversed. Id. The court held

non-incarcerated parent is unfit. Where both parents are fit, the trial court rights. Id. at 52 p. 4 4. the child’s maternal great aunt. Id. at 523-24. The father retained visitation remain in the legal custody of the mother and awarded temporary custody to Id. The Montana trial court held that it was in the child’s best interest to five years in prison. of the child to be in the care of the child’s parents. Id. The father requested permanent custody of the child. 885 P.2d at 523. The mother was then convicted of a felony and sentenced to incarcerated parent. We have consistently stated that it is in the best interest legal and physical custody of the child and the father had visitation. Babcock, For example, in Babcock, where both parents were fit, the mother had

parent may maintain custody and designate a caregiver for the child. parent is unfit and the other is incarcerated, for example, the incarcerated parent retaining the right to designate a third-party caregiver. Where one party caregiver, over the objection of the other parent, absent a finding that the the prison). The incarcerated parent, therefore, may not designate a thirdcustodian,” entitled to reasonable visitation and grandparents will provide transportation to Davis v. Davis, 6 p. 4 48 N.Y.S.2d 742, 743 (App. Div. 1996) (incarcerated parent custody and the incarcerated parent may visit with the child. See id.; Matter of court is limited in the parental rights and responsibilities it may award an See Babcock, 885 P.2d at 524. Instead, the non-incarcerated parent retains parent is fit, the incarcerated parent may not designate a third-party caregiver. Isayah C., 13 Cal. Rptr. 3d at 207. Where, however, the non-incarcerated

other parent. Limited circumstances exist that warrant the incarcerated parental responsibility to designate caregivers hinges upon the status of the & Horsley, 1 p. 4 49 N.H. at 549. Thus, whether the incarcerated parent retains necessarily preclude the incarcerated parent from being a child’s legal See In the Matter of Nelson father’s criminal behavior.”). Although incarceration alone “does not be without his father’s care during most of his formative years as a result of his Because the incarcerated parent is unable to care for the child, the trial

In re Interest of Ditter, 322 N.W.2d 6 p. 4 42, 645 (Neb. 1982) (per curiam). 806 (App. Div. 1999); Babcock v. Wonnacott, 885 P.2d 522, 524 (Mont. 1994); Rptr. 3d 198, 207 (Ct. App. 2004); Randy K. v. Evelyn ZZ, 692 N.Y.S.2d 804, e.g., In re L.N., 689 N.W.2d 893, 897 n.4 (S.D. 2004); In re Isayah C., 13 Cal. incarcerated parent is “unavailable” by reason of his or her incarceration. See,

Reed v. Albaaj, 723 N.W.2d 50, 57 (Minn. Ct. App. 2006), an

child are commendable, the fact still remains that the child has been and will N.H. 83, 85 (2002) (“Although [father’s] efforts to maintain contact with his eighteen-month-old child to an unrelated third party for an entire weekend.

p. 5 Hampshire Constitution. which is a fundamental liberty interest protected by Part I, Article 2 of the New 5

favor of an unrelated third person.”

visitation rights. The trial court’s order in effect grants visitation of an children.” parents to make decisions concerning the care, custody, and control of their

case is consistent with the right of parents to raise and care for their children,

unusual and serious of cases may such fundamental rights be abrogated in Parents’ rights over their children “are not easily set aside. Only in the most delegated to a third party, is equivalent to awarding an unrelated third party Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion). natural parent prevails until a showing of forfeiture of that right.” Process Clause of the Fourteenth Amendment protects the fundamental right of a third party seeks custody to the exclusion of a natural parent, the right of the Similarly, the United States Supreme Court has recognized that “the Due

Our conclusion concerning the absence of statutory authority in this

actually exercise. Time allocated to the father beyond that, which is then abuse/neglect proceeding or a termination of parental rights proceeding.” authority is limited to awarding visitation to the incarcerated father that he can Here, neither parent has been declared unfit. Thus, the trial court’s child . . . .”). The court said: “It has long been the law in Montana that where

grandparents and stepparents. See RSA 461-A:6, V. court’s statutory authority to grant third-party visitation is limited to absent a determination that the non-incarcerated parent is unfit, the trial In the Matter of R.A. & J.M., 153 N.H. 82, 96 (2005) (plurality opinion). Thus, because “fit parents are presumed to act in the best interest of their children.” prove that parent is also unfit. RSA 169-C:19-e, I (Supp. 2008). This is deemed unfit, the other parent must be awarded custody unless the State can Alexis O., 157 N.H. 781, 789 (2008) (quotation omitted). Once a parent is

“presumed to be fit parents . . . until they are found to be unfit in an the court to limit parental rights. Biological and adoptive parents are abandoned the family, the other parent is entitled to the parenting . . . of the M., 148 N.H. at 84. RSA chapter 169-C provides procedural requirements for The Babcock analysis is consistent with our own law. See In re Adam

erred in awarding custody to a third party. Id. at 525. court held that proper procedure was not followed, and thus the trial court dependency,” through proper procedure, is necessary for forfeiture. Id. The 885 P.2d at 524. The court went on to say that “[a] finding of abuse, neglect, or

221 (“If either parent is dead or unable or refuses to exercise parenting or has her child is a fundamental, constitutional right”); see Mont. Code Ann. § 40- p. 6 6the father was entitled to custody. Id. (“right of a parent to custody of his or incarceration, and, thus, pursuant to statutory and constitutional authority, 6

proceedings consistent with this decision.

that the trial court exceeded its statutory authority and remand for further

BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred.

finding. Thus, such a review is best left to the trial court. We hold, instead, adopted, in light of our decision, may require additional testimony and factadopted her parenting plan. Whether the mother’s plan should now be The mother argues that on this record the family division should have

children.” Id. at 548. “[P]arents have a natural entitlement to the exclusive . . . management of their against third parties, and against the child.” Id. at 547 (quotation omitted). N.H. at 548. Parental rights “have been found to operate against the State,