2009-806, In the Matter of James J. Miller and Janet S. Todd

Law Office of Joshua L. Gordon

No. 2009-806

Portsmouth Family Division

Michigan, Todd and the children spent some time alone in New Hampshire 2003. During 2002 and 2003, the parties spent some time living together in relationship produced two daughters, Laurel born in 2002 and Lindsay born in and Todd lived in New Hampshire. Although they never married, their internet and established a relationship. At that time, Miller lived in Michigan most relevant to the issues on appeal. Miller and Todd met in 1999 over the We have reviewed the extensive record in this case and set forth the facts

John P. Carr ___________________________

York, appeals an order of the Portsmouth Family Division (DeVries HICKS, J. The petitioner, James J. Miller, currently a resident of New

New Hampshire. We vacate and remand. daughters to continue to live primarily with the respondent, Janet S. Todd, in recommended by the Master (Cross, M.), requiring the parties’ two minor

Concord, on the brief, and Mr. Carr orally, for the respondent.

brief and orally), for the petitioner.

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 allegations of [Miller’s] alleged sexual assault until custody of the minor p. 2 testimony put forth by [Todd]: that her mother [chose] not to reveal the by her. As the court stated, “It is simply far too convenient to believe the Todd, the court found “most troubling” the allegations of sexual abuse raised that order, the trial court questioned the credibility of both parties. Regarding temporary decree awarding the parties joint legal custody of the children. In In November 2004, the Rockingham County Superior Court issued a

child were found and the investigation was closed. of both children administered. No indications of sexual abuse of either The agency investigated the report, including having pelvic examinations

of Laurel. This was never reported to anyone. Maternal grandmother stated father inserted his fore-finger inside

Maternal grandmother states she did not have [a] diaper rash.

rubbing diaper cream on Laurel because she had a diaper rash.

Hampshire between 10/03/03 and 10/05/03 when father was maternal grandparents recalled an incident that occurred in New

Agency of Michigan, Child Protective Services, alleging that On February 5, 2004, a report was filed with the Family Independence

transferred the children to Miller’s custody. physical exam indicated the children’s condition was good. Todd then Todd notified the hospital staff of any concerns regarding sexual abuse. The to have evaluated for custody issue.” There is no evidence in the record that physician’s report states: “[P]atient here for well child check-up; told by Lawyer department at Exeter Hospital and requested a “well baby check.” The 27, on the advice of her attorney, Todd took the children to the emergency she saw Miller molest Laurel by inserting his forefinger into her. On January Sometime in January, Todd’s mother told her that, four months earlier,

December 23, 2003, Miller obtained an ex Toward the end of 2003, the parties’ relationship broke down. On

purpose of transferring custody to him. ordered Todd to bring the children to Miller within twenty-four hours for the decree, ordered Todd to appear at a hearing and on January 26, the trial court Court, in response to Miller’s petition for enforcement of the Michigan custody Michigan custody order. On January 15, the Rockingham County Superior Hampton, New Hampshire. On January 6, 2004, Todd was served with the daughters. That same day, Todd took the children to her parents’ home in Michigan granting him sole temporary legal and physical custody of his

Todd’s parents’ house in New Hampshire. living with Todd’s parents, and the parties all spent some time together at parenting/custody assess[ment], abuse allegations by both parties, parental p. 3 Ward “to investigate and make recommendations . . . on the issues of a In July 2006, the parties agreed to be evaluated by psychologist Peggie

pursue charges. referred to the Manchester Police Department, which investigated but did not abusive to a child as if the abuse had actually occurred.” The matter was also Please understand that this . . . type of coaching, if proven, is equally as Laurel has been coached with the information that she has been disclosing. been closed unfounded.” DCYF stated that “[t]here has been a concern that come to its attention and that “the assessment regarding your children has determination. In a letter to Todd, DCYF informed her that new evidence had the finding and, on February 24, 2006, DCYF rescinded its initial its central registry of founded child abuse and neglect reports.” Miller appealed individual responsible for the abuse” and that his name would be entered “on DCYF sent a letter to Miller stating that it had determined that he was “the made her “eat his pee pee” and “panks her in the front.” On January 30, 2006, that Laurel had stated that Miller took “pictures of her with her clothes off,” In November 2005, Todd and the children’s therapist reported to DCYF 3

filed an ex that Laurel had reported that Miller had spanked her in the groin area. Todd In September 2005, a friend of Todd’s made a statement to the police

Attorney. were unfounded. A copy of the report was sent to the Hillsborough County Police Department which, after investigation, also concluded that the charges matter as unfounded. Details of the alleged abuse were sent to the Manchester New Hampshire Division for Children, Youth, and Families (DCYF) closed the as a “possible disclosure” of sexual abuse, but took no action. After an investigation that included a second pelvic examination of Laurel, the then asked, “from your father,” Laurel said “yes.” The police noted the report investigated and any and all allegations of abuse are deemed unfounded.” asked Laurel where she heard that she said nothing. When the grandfather from having any contact with the children “until this matter is duly “straddle” him on his chest and stated, “I’m f------ you.” When the grandfather As a result of these allegations, the court issued an order prohibiting Miller was lying in bed with Lindsay and Laurel watching a movie, Laurel tried to of a sexual nature,” referring to the grandfather’s report to the police in June. party in the groin area and that Laurel had displayed “other alarming behavior In June 2005, Todd’s father reported to the Hampton police that while he children alleging that the children reported being spanked by Miller and a third

parte petition for temporary stay of visitation between Miller and the

to care to whom they lie so long as they achieve favorable results.” children was awarded to [Miller].” The court noted that neither party “appears her at great risk for faulty judgment, for errors in decision-making, p. 4 intentions, motivations and actions of other people. This places

predisposes her to misunderstanding and misconstruing functioning. Ms. Todd’s level of distortion is substantial and

she demonstrates has major implications for her adaptive

takes in from her surroundings and the degree of misperception impairment in her ability to accurately process the information she

[p]sychological testing shows that Ms. Todd has a “serious

by Dr. David Medoff, Dr. Ward noted that Referring to a psychological report on Todd that was prepared in August 2007 Miller, became increasingly convinced that Mr. Miller was harming Laurel.” Mr. Miller and after having experienced her own negative interactions with Mr. data. That is, that Ms. Todd, after experiencing her parent’s concerns about opinion that this hypothesis “is the most likely hypothesis supported by the Laurel, not Lindsay, was sexually abused by Mr. Miller.” It was Dr. Ward’s Fourth, Dr. Ward posed the hypothesis that “Todd came to believe that

the data.” Ward’s opinion that “this hypothesis is not the hypothesis best supported by coached the children in what to say and scripted their responses.” It was Dr. Third, Dr. Ward posed the hypothesis that Todd “has deliberately

with other hypotheses.” less consistent with a child sexually abused by her father and more consistent abused by her father.” Dr. Ward’s opinion was that “Laurel’s presentation is interviews,” it was “impossible to determine whether Laurel was sexually abusive behavior, combined with multiple physical exams and multiple mother].” Due to the “lack of context and the lack of memory regarding and distress about sexual abuse from both Janet Todd as well as [Todd’s are of premature focus on the genital area followed by a good deal of anxiety statements and behaviors are less consistent with child sexual abuse than they or inappropriately touched by Mr. Miller.” Dr. Ward noted that “Laurel’s Second, Dr. Ward posed the hypothesis that “Laurel was sexually abused

repeatedly sexually abused.” data” in that “Laurel’s presentation is less consistent with a child who has been of context.” Dr. Ward opined that “this hypothesis may be supported by the appear to be consistent with her initial statement nor do they have a good deal questioning and that Laurel’s statements to the Child Advocacy Center “do not Dr. Ward noted that both children were subjected to multiple examinations and hypothesis that “Laurel was not sexually abused by her father or anyone else.” report in which she considered several hypotheses. First, Dr. Ward posed the deems relevant.” On December 18, 2007, Dr. Ward issued an eighty-eight page alienation issues, scripting issue[s] and any and all other issues . . . which she p. 5 Todd’s allegations of sexual abuse, Miller “has had little meaningful parenting Ward’s evaluation and recommendations. The court noted that as a result of On January 7, 2008, the trial court issued an order addressing Dr.

significant periods of time with their father.” parenting plan should be worked out wherein the children can spen[d] between Mr. Miller and the children is both more positive and more stable a their father have lost time that they cannot bring back. Once the relationship recommended therapeutic reunification. Dr. Ward noted that the “children and Because the children had no present relationship with Miller, Dr. Ward had not seen his children, outside of Dr. Ward’s office, since September 2005. At the time Dr. Ward submitted her report in late December 2007, Miller

abuse.” inadvertently reinforced the abuse by making a ‘book’ with Laurel about her therapist is convinced that Laurel has been sexually abused, and may have Mr. Miller sexually abused the children.” Finally, Dr. Ward noted that “Laurel’s children. Mrs. Todd in particular is active in helping her daughter prove that adamantly accepted that Mr. Miller is a pervasive negative influence on his addition, Dr. Ward noted that “Ms. Todd’s parents appear to have wholly and harmful to Laurel but also did not protect the children from her feelings.” In feelings colored her perceptions and that she not only came to see Mr. Miller as beliefs about Mr. Miller, from her psychological profile, it is most likely that her while it is “likely that Janet Todd did influence her children with her negative with an absolute certainty that he did not.” She concluded, however, that unlikely that Mr. Miller has sexually abused Laurel, it is not possible to say In making her recommendations, Dr. Ward cautioned that “[w]hile it is

by her father is the hypothesis best supported by the data.” but clearly caused Laurel to come to believe that she has been sexually abused Dr. Ward thus concluded that “the hypothesis that Ms. Todd unintentionally

force on this information. believing that Laurel was sexually abused, and acting with full information that she gained from her environment, adamantly Ms. Todd’s emotional state placed her at risk for misinterpreting accurately identify intentions, motivations and behavior of others. Ms. Todd has the liability of distortion of information and failure to

As Dr. Ward explained,

also become confused at times in separating fantasy from reality.”

foresee the consequences of her actions at times, but that she will These data indicate that Ms. Todd will not only fail to recognize or and for behaving in ways that are based on inaccurate information. short of modifying the children’s primary residence.” Further, the court denied p. 6 insistence continues to be so intractable, [it] may be left with no alternative the single biggest obstacle to restoring [Miller’s] relationship with them. If her convinced that [Todd’s] insistence that [Miller] sexually abused the children is the reunification process. The court stated that it was “growing increasingly which gives Miller “some increasingly longer periods of parenting time” during reunification counseling with a new therapist and that they develop a schedule ‘fraudulent billing’ of insurance.” The court ordered that the parties enroll in therapist” and Todd “because of her fanciful concern about the therapist’s “[Miller] because of his insistence and belligerence with the reunification order.” The court attributed responsibility for its failure to both parties: setting forth a plan for restoring the relationship “failed in relatively short with the parties’ minor children was misguided.” The January 7, 2008 order stating that its “hope that progress could be made in [Miller’s] reunification On March 6, 2008, following a hearing, the trial court issued an order

different source.

circumstances are immediately addressed, they risk abuse from a

raise the very real possibility that unless the children’s Dr. Ward’s evaluation and the parties’ psychological evaluations

the objective evidence does not corroborate her concerns. In fact,

parenting time because of her concerns about sexual abuse, but not doubt that [Todd] feels justified in objecting to [Miller] having

unjustified.” The court expressed that it did parent, especially when the reasons for doing so appear to be wholly extraordinarily harmful to them to deprive them of a relationship with one require that they ‘normalize’ their relationship with their father. It is psychological evaluation. The court found “that the children’s best interests her therapist be given a copy of Dr. Ward’s evaluation and Todd’s own reunification process, that Todd immediately reenroll in counseling, and that the parties immediately contact Kelly Khachadourian to begin the therapeutic therapist, Todd had “made no such effort whatsoever.” The court ordered that The court noted that although Miller had already identified a reunification

premised on assertions which may not be true. convinced that [Todd’s] pace for reunification is far too slow and is reunification, but wants it to proceed at a slow pace. The court is

deserve better. [Todd] asserts that she accepts the goal of

too much opportunity has been lost. The children certainly children with their father. Too much time has already passed and to set a course for the immediate therapeutic reunification of the

Ward as part of her evaluation.” The court expressed its intent time for the past two years, other than when he and the children met with Dr. reunification therapy and appointed a guardian ad litem. p. 7 Accordingly, the court set forth a schedule to allow Miller to continue the

continue the reunification therapy.

arrangements, presumably by his traveling to New Hampshire to relationship; rather, she leaves it up to him to work out the

practical suggestions for how to continue the restoration of the the children’s relationship with their father. She offers no real

continues to be unwilling to recognize the damage she has done to

As for Todd, the court stated that she

best interests require that he be patient with the process.

has begun [and] is proceeding reasonably well, and the children’s

change(s). The process of restoring his contact with the children the fact that the children will require time to adjust to the estrangement from him; he may be right, but that does not change

has alienated the children and is responsible for the children’s 7

that Todd best interests.” The court stated that it understood that Miller is convinced therapy, while Todd contended that request was “decidedly not in the children’s children so he could bring them to New York to complete the reunification than July 1, 2008. Following an ex process.” Miller wanted temporary primary residential responsibility of the that they begin reunification therapy near Miller’s home in New York no later news quickly degenerated into a heated argument about the next step in the that the children need [to] rebuild their relationship with their father,” ordered the [May] hearing . . . in reunifying the minor children with [Miller],” that “good parties “have no interest to cooperate in what they both profess to believe – although the parties “agree that they have made considerable progress since On May 15, 2008, following a hearing, the court, after noting that the On August 25, 2008, following a hearing, the court recognized that

Miller’s request for sole decision-making and residential responsibility. the children did not appear for the July 8, 2008 appointment, it would consider immediate modification of residential custody, the court stated that if Todd and Todd’s continued interference with the reunification process required

to the contrary.” of her belief, the fact is that she continues to hold to it no matter the evidence children were sexually abused is, at this point, irrelevant; whatever the source “representation that [the therapist] is the source for her conviction that the Todd’s request to depose the children’s former therapist, stating that Todd’s could do to stop him. In response, Miller filed a motion to modify custody of p. 8 father he said that he was going to hurt her mother and there was nothing she began to cry in class and disclosed that during her most recent visit with her indicating that Laurel’s first grade teacher had reported that on April 20 Laurel In April 2009, the guardian ad litem filed a statement with the court

In March 2009, the guardian ad litem filed an ex

different course of action.” therapy, [t]he Division for Children, Youth and Families may be forced to take a with further concerns for Lindsay and Laurel and they have not started with both parents.” DCYF also stated that “[i]f we shall get another report in Seminar to understand “the impact it has on children to have a relationship in individual therapy and that the parents participate in a Child Impact letter to the parties, DCYF recommended that both Laurel and Lindsay engage “immediately.” DCYF investigated and closed the matter as unfounded. In a but ordered the guardian ad litem and Todd to report the disclosures to DCYF the hearing, the court ordered that Miller’s parenting time was not suspended threat in there that if they told anyone, he would kill their mother.” Following pee-pee. She told him not to and he did it anyway, and that there was also a guardian stated that Todd claimed Lindsay reported that “daddy touched her ordered that the “father shall not have parenting time.” At the hearing, the [him].” In response, the trial court scheduled a hearing and, in the interim, inappropriate touching by their father . . . during their last custodial time with 3/18/09 Janet Todd told the GAL that the children disclosed to her the weekend beginning March 20, 2009. The motion indicated that “[o]n the custodial time the children were scheduled to have with their father during

set forth a visitation schedule. of parenting time would guarantee Miller’s contact with the children, the court made their work nearly impossible.” Concluding that only a specific schedule to withdraw from this case. He chose both therapists, but his conduct has impatience with the process has now caused the second reunification therapist that his reunification with the children be done on his terms, and his The court noted that Miller was not blameless in that he “unreasonably insists he came to pick up the children, nor did she bring the children to New York. “but then reneged,” and that Todd neither met Miller in New Hampshire when that Todd had offered parenting time to Miller for a couple of days in August not seen the children since August “for reasons entirely unclear to the court,” minor children.” The “uncontroverted evidence” demonstrated that Miller had that [Todd] is not invested in the process of reunifying [Miller] with the parties’ Following a hearing on the motion, the court stated that it remained “convinced [he] ha[d] not had any contact with his children since August 14, 2008.” modification of residential responsibility “made necessary due to the fact that In October 2008, Miller filed an ex parte motion again seeking p. 9 Supreme Court Rule 3 providing for mandatory review of appeals involving opportunity to view videotaped interviews with Laurel. Third, he argues that Second, he argues that the trial court erred in not providing him a timely his parenting rights, by making multiple accusations of sexual abuse.” sustained campaign to alienate the children from [him], and to interfere with erred in awarding Todd parenting responsibility when she has “engaged in a Miller raises three issues on appeal. First, he argues that the trial court

Hampshire.” interests require that they continue living primarily with their mother in New in their best interest. Accordingly, the master concluded that “the girls’ best most of what they have known during their formative years and would not be mother, a move to New York would be a drastic change requiring them to leave friends in New York, and enjoy their time with their father’s brother and although they have reestablished a healthy bond with their father, have made close relationship with their maternal grandparents. In addition, he found that attended school. He found that they have friends in New Hampshire and a with their mother in New Hampshire for nearly five years, where they have Regarding the children, the master found that they have lived primarily

children from her feelings.’” children with her negative beliefs about (father) . . . (and) did not protect the Laurel) by [Miller]’” and that Dr. Ward “opine[d] that mother ‘influence(d) her found that Todd “believes that ‘something sexual definitely happened (to found that Miller’s expert, Dr. Garber, shared this conclusion. The master also to something that undermines their relationship with father.” The master parenting assessment included the conclusion “that the girls are being exposed The master found that Dr. Ward’s “thorough and extraordinarily perceptive” but that “DCYF investigated and ultimately made no findings of sexual abuse.” parenting time because of mother’s allegations that he sexually abused Laurel” 2009. The master found that in 2005 the court had “suspended father’s regarding custody, which were approved by the trial court on September 8, Following a three-day hearing, the master issued his recommendations

school year.

uprooting of the children, especially so close to the end of the the court does not find a risk of imminent harm to justify the Hearing is scheduled in July, only two months away. Until then, consider all that has happened before March and since. The Final spiraling into new and more serious ones. The court will carefully

previous ones and the recent one in March, is a “slippery slope” that [Miller] fears that this new allegation, when combined with

denied the motion. The court noted that it understood the children due to new acts of child abuse. Following a hearing, the court p. 10 RSA 461-A:6, I(e)-(g) (Supp. 2009) (amended 2010).

the other parent. (g) The support of each parent for the child’s relationship with

other parent as shown by allowing and promoting such contact. (f) The support of each parent for the child’s contact with the

Choy

result in harm to the child or to a parent. telephonic contact with the other parent, except where contact will relationship and frequent and continuing physical, written and (e) The ability and disposition of each parent to foster a positive

could reasonably be made. made, and we will not disturb the trial court’s determination if it

concern is the best interest of the child.” In the Matter of Martin & Martin “When determining matters of child custody, a trial court’s overriding the court must consider, including: codifies the “best interests of the child” criteria, setting forth twelve factors that responsibilities of raising their children.” RSA 461-A:2, I(a), (b). The Act visitation. In the Matter of Choy & Choy both parents” and to “[e]ncourage parents to share in the rights and The trial court has wide discretion in matters involving custody and state to “[s]upport frequent and continuing contact between each child and in their lives.” RSA 461-A:2, I (Supp. 2010). Accordingly, it is the policy of this “children do best when both parents have a stable and meaningful involvement objective basis sufficient to sustain the discretionary judgment chapter 461-A, the Parental Rights and Responsibilities Act, states that This means that we review only whether the record establishes an N.H. 645, 647 (2010), cert the trial court engaged in an unsustainable exercise of discretion.. denied, 79 U.S.L.W. 3329 (Jan. 24, 2011). RSA Our review is limited to determining whether it clearly appears that, 160

court’s statutory interpretation de novo. Id. at 711. , 154 N.H. at 713 (quotation and citations omitted). We review a trial

as provided in this chapter.”). minor children shall mean the allocation of parental rights and responsibilities 461-A:20 (Supp. 2010) (“Any provision of law that refers to the ‘custody’ of

parents is unconstitutional. married parents but discretionary review of appeals involving non-married of circumstances that warrants a modification of the prior custody

p. 11 relationship between the ex-spouse and the child, this is a change

the court’s presumption and is attempting to poison the that after the initial decree the residential parent is not living up to

need of the child for both parent’s love. Where the evidence shows of any good feeling toward the nonresidential parent, but out of the residential parent implicitly agrees to foster such affection, not out parent will promote both maternal and paternal affection. The

presumption that the circumstances are such that the residential When a court makes a custodial decision, it makes a

or she feels unloved by one parent. matter how well fed or well clothed, a child cannot be happy if he food, clothing, or shelter. Perhaps it is more harmful because no from that duty is as harmful to the child as is the failure to provide the child’s love and respect for the other parent, and the failure each other. It is the duty of each parent to foster and encourage

parents regardless of the antagonism the parents might feel for visitation, the children need to know that they are loved by both Although a court grants one parent custody and the other 11

parent. See abuse made by one parent can be grounds for granting custody to the other In addition, many courts have held that unfounded allegations of sexual

In Beekman v. Beekman

the court reasoned:

2006); Turner v. Turner, 689 N.Y.S.2d 269, 270 (App. Div. 1999). 631 N.E.2d 708 (Ill. 1994); Mack-Manley v. Manley, 138 P.3d 525, 531 (Nev. Hartman v. Hartman, 621 N.E.2d 917, 920 (Ill. App. Ct. 1993), appeal denied,

, e.g., Young v. Young, 628 N.Y.S.2d 957, 962 (App. Div. 1995);

151 N.H. 722, 728 (2005). Knudson, 133 N.H. 665, 673 (1990); see also In the Matter of Kosek & Kosek, child as to raise a strong possibility that the child will be harmed.” Webb v. if continuous, constitute behavior so inconsistent with the best interests of the custodial parent of visitation between a child and the noncustodial parent may, custodial parent.” Id. at 466. As we have recognized, “the obstruction by a the other casts serious doubt upon the fitness of the offending party to be the of conduct by one parent designed to interfere in the child’s relationship with by nurturing the child’s relationship with both parents, and a sustained course 721 A.2d 463, 465-66 (Vt. 1998). “[A] child’s best interests are plainly furthered change of custody from, the parent guilty of such conduct.” Renaud v. Renaud, inimical to the child’s welfare as to be grounds for a denial of custody to, or a one parent that tends to alienate the child’s affections from the other is so “Across the country, the great weight of authority holds that conduct by allegations of sexual abuse will cease. See p. 12 is no indication in the record that Todd’s conduct of pursuing unfounded done anything wrong, and that she may not believe the allegations herself, there alleged incidents actually occurred, that she has no evidence that Miller has Despite Todd’s admissions that she does not know whether any of the

the children’s best interests. See 12 they have twice participated in reunification therapy. These actions were not in have been evaluated by Dr. Ward, they have had two guardians ad litem and Renauld examinations, they have been interviewed by DCYF and law enforcement, they, 721 A.2d at 467-68 (mother’s reports of alleged sexual and physical pattern of conduct, having existed over the years, is unlikely to change); cf allegations, both children have been subjected repeatedly to invasive physical. (mother’s repeated attempts to alienate the children from their father and her relationship with his children for years. Further, as a result of the false significantly interfered with Miller’s visitation and deprived him of any Theisen, 405 N.W.2d at 472 do so, are several and serious. First and foremost, the false allegations of abuse unfounded belief that Miller has sexually abused his children, and continues to Based upon the record before us, the negative ramifications of Todd’s

opposed to child’s father). App. 2003) (not in child’s best interests to be raised by a mother so bitterly in psychological damage); C.J.L. v. M.W.B., 879 So. 2d 1169, 1178 (Ala. Civ. suspicion and accusation regarding conduct of father toward children resulting App. 1987) (mother created and maintained atmosphere of unwarranted in child’s best interest); Theisen v. Theisen, 405 N.W.2d 470, 474 (Minn. Ct. opportunity to know and love father by interfering with father’s visitation is not S.W.2d 711, 715 (Mo. Ct. App. 1988) (mother’s attempt to deprive child of unfounded sexual abuse are not in the child’s best interest); Ellis v. Ellis, 747 Ct. App. 1997) (numerous physical examinations and counseling sessions for

461-A:6, I(g), in determining the best interests of the children. See support of each parent for the child’s relationship with the other parent,” RSA parent for the child’s contact with the other parent,” RSA 461-A:6, I(f), or “[t]he relationship . . . with the other parent,” RSA 461-A:6, I(e), “[t]he support of each considered “[t]he ability and disposition of each parent to foster a positive facts before it. There is no clear indication in the court’s order whether it 461-A, nor does it mention the application of the statutory factors to the specific The trial court’s order in the case before us does not cite RSA chapter contact with his children). wife and impact of wife’s repeated lawsuits on husband’s ability to maintain determination as to custody apparently did not take into account actions of the Matter of Rossino & Rossino, 153 N.H. 282, 284 (2006) (trial court’s

poisoning of the relationship. decree. Unsubstantiated allegations of abuse are the worst kind of p. 13 Id

loving relationship with both parents. the best interests of the child are furthered through a healthy and undisturbed, the court’s decision would nullify the principle that

might, with impunity, engage in similar misconduct. Left Miller sexually abused the children. children, and that Todd’s mother is active in helping her daughter prove that adamantly” accepted that Miller is a pervasive negative influence on the protect the children from her feelings, that Todd’s parents have “wholly and likely that Todd influenced her children with her negative beliefs and did not Laurel to believe that she has been sexually abused by her father, that it is children’s contact with him. These include her conclusions that Todd caused Todd’s inability to foster a positive relationship with Miller and to support the 13 extraordinarily perceptive,” contains several conclusions particularly relevant to Dr. Ward’s report, characterized by the master as “thorough and

parent. Its ruling sends the unacceptable message that others condoned a parent’s willful alienation of a child from the other

with the children). to consider evidence that mother willfully interfered with father’s relationship noticeably silent as to mother’s false allegations and it was clear the court failed Although obviously well intended, the court’s decision effectively neglect allegations); Young, 628 N.Y.S.2d at 963 (trial court’s decision interests not served by ignoring mother’s unsubstantiated child abuse and .; see Mack-Manley, 138 P.3d at 528 (trial court found children’s best

the court stated: omitted). The Vermont Supreme Court rejected such reasoning. p. 13 Id abuse that Miller was denied any. at 472. As concluded that it had no choice but to award custody to him. Id comfortable. However, it was because of the unfounded allegations of sexual. (quotations Although the court found that father did not “deserve to win custody,” it have spent the majority of their lives with her and that is where they are most fueled by their father, precluded an award of custody to mother. Id The trial court awarded custody to Todd primarily because the children. at 471. court concluded that the boys’ hostility toward their mother, encouraged and marital problems and made disparaging remarks about her lifestyle. The trial separation due to the fact that the father unfairly blamed her for the parties’ children’s relationship with their mother deteriorated following the parents’ misbehavior. In Begins v. Begins, 721 A.2d 469, 470-71 (Vt. 1998), the 2009. This raises the question whether Todd has benefitted from her and had little opportunity to establish a home life with them between 2004 and

her actions were transitory, unlikely to be repeated, and subject to cure). abuse of son by father, although unsubstantiated, were wholly reasonable and appeals are NOT p. 14 compliance with these rules. Provided, however, that the following district court, probate court, or family division court, that is in from a final decision on the merits issued by a superior court, appeal filed by the State pursuant to RSA 606:10, or an appeal supreme court for review on the merits. A mandatory appeal is an “Mandatory appeal”: A mandatory appeal shall be accepted by the

Vacated and remanded Supreme Court Rule 3 provides in part:

comments and suggestions. 51, thereby providing the public, the bench and the bar an opportunity to offer unmarried parents with respect to issues involving children. accordance with the rule-making procedures set forth in Supreme Court Rule unconstitutional because it provides differing treatment to married and moot. Any consideration regarding amending Rule 3 should be accomplished in the question concerning the constitutionality of Rule 3 as applied to this case is Having exercised our discretion and accepted this appeal, we hold that

The final issue raised is whether Supreme Court Rule 3 is

DALIANIS, C.J.