2020-0125, In the Matter of Alli Morris and Dustin Morris

biological mother, who passed away in 2008. Father and Stepmother began a The relevant facts follow. Child w as born in 2005 to Father and Child’s

Father and Stepmother with respect to Child, w e reverse and remand. child standard to determine the parental rights and responsibilities between conclude t hat the circuit co urt erred in applying solely a best - interests - of - the proceeded with, and now decide, this case on Father’s brief only. Because we Stepmother did not file a brief or memorandum of law in this appeal; we ex - wife and Child ’s stepmother (Stepmother). See RSA 461 - A:6, V (2018). placement” of his biological child (Child) to the petitioner, Alli Morris, Father’s decision of the Circuit Court (Alfano, J.) awarding “custody and school HANTZ MARCONI, J. The respondent, Dustin Morris (Father), appeals a

the respondent. Bedard & Bobrow, PC, of Eliot, Maine (David J. Bobrow on the brief), for

Alli Morris, the petitioner, filed no brief.

No. 2020 - 0125 7th Circuit - R ochester Family Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e mail at the following address: reporter@courts.state.nh.u s. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

This appeal followed. August and September of p. 2 2019, which the circuit court denied as untimely. of the child.” (Citing RSA 461 - A:6, V.) Father filed subsequent motions in step - parent in preference even to a natural parent based on the best interests Hampshire law provides that the court in a divorce may award custody to a best interests. The circ uit court denied Father ’s motion, explaining that “New Child ’s biological father and is presumed to be a fit parent, acting in Child ’s because Stepmother is not Child’s biological or adoptive mother, and he is standard. He argued that the use of such a standard was “impermissible” “awarding custody” of Child to Stepmother based solely upon a best - interes t s Father moved for reconsideration, arguing that the circuit court erred in

[Child] attend school in [Stepmother’s] school district.” allow [Child] to be with his Fath er as often as possible, but are ordered to have with Stepmother. The court further stated that “[t]he parties are encouraged to which is every other weekend” with Father, and “the remaining parenting time” that Child would have “the same parenting schedule as the other children, Father that his Father is physically available to parent him,” but otherwise, time with his F ather,” and ordered that Child “spend every weekend with his ( p. 2 2014 & Supp. 2020). The circuit court acknowledged that Child “wants more pursuant to RSA chapter 169 - C (2014 & Supp. 2020) or RSA chapter 170 - C parent, the record does not reflect that Father was found to be an unfit parent Although the court made findings cr itical of Father’s “effective[ness]” as a

evidence regarding Child’s relationship with Father’s girlfriend. be with [Stepmother]” in light of Child’ s relationship with her and the lack of Father is traveling, which does not appear to be the case, then the child should from her home, and that “even if Father’s girlfriend would be available when resources to take [Child] to school in Father’s school district” given the distance continues to seek out - of - state work, that Stepmother “does not have the physically present for weeks at a time to parent.” The court foun d that Father court reasoned, “that Father travels extensively for work, and would not be district [is] not in the child’s best interests.” “This is based on the fact,” the that permitting Child “to live with Father and to go to school in his school Following the hearing, the circuit court issued an order in which it found

Hampshire. approximately an hour apart and in different school districts in New children’s interests. At th e time of the hearing, Father and Stepmother lived each represented by counsel, and a guardian ad l item represented the part, determine the parenting plan for Child. Father and Stepmother were child” but has not adopted. On July p. 3 3, p. 2 2019, a final hearing was held to, in children, and with respect to Child, whom Stepmother has “raised. . . as her and responsibilities between them with respect to their three, shared biological 2016 and later filed for divorce, necessitating the allocation of parental rights romantic relationship in 2010 and married in 2013. The parties separated in 3

custody and management of their children does not evaporate simply because “Moreover, the fundamental liberty interest of parents in the care,

that parent’s children.” Id. (quotation omitted). the ability of that parent to make the best decisions concerning the rearing of the State to inject itself into the private realm of the family to further question N.H. at p. 3 314. “Provided that a parent is fit, there will normally be no reason for parents are presumed to act in the best interest of their children. Bordalo, 164 CONST. pt. I, art. 2. We have adopted the Troxel plurality’s ruling that fit U.S. 57, 66 (2000) (plurality opinion); see also U.S. CONST. amend. XIV; N.H. raising and caring for their children.” Id. at 314; see Troxel v. Granville, 530 “It is well - established that parents have a fundamental liberty interest in

context. statutory basis to differentiate between grandparents and stepparents in th is stepparent and a fit, natural or adoptive parent, as there is no constitutional or equally to determinations of parental rights and responsibilities between a Bordalo, 164 N.H. at p. 3 312, 314, 316. We hold that th is conclusion applies responsibilities between a grandparent and a fit, natural or adoptive parent. be constitutionally applied to determinations of parental rights and case, we concluded that solely a best - interests - of - the - child standard could not RSA 461 - A:6, V. This statutory language was also at issue in Bordalo. In that

child. court determines that such an award is in t he best interest of the rights and responsibilities to a stepparent or grandparent if the shall be construed to prohibit or require an award of parental children pursuant to RSA 461 - A:1 p. 3 3. Nothing in this paragraph who is a stepparent of the children or to th e grandparents of the it shall in its decree grant reasonable visitation privileges to a party If the court determines that it is in the best interest of the children,

and r esponsibilities as to a stepparent or grandparent, and provides: RSA 461 - A:6, V specifically pertains to determinations of parental rights

court’s application of the law to the facts. See Bordalo, 164 N.H. at p. 3 3 14. standard of review both to the constitutionality of a statute and to the circuit responsibilities as provided in this chapter.”). However, we apply a de novo of minor children shall mean the allocation of parental rights and see also RSA 461 - A:20 (2018) (“Any provision of law that refers to the ‘custody’ discretion. See In the Matte r of Bordalo & Carter, 164 N.H. 310, 313 (2012); its determination except when there has been an unsustainable exercise of and responsibilities under RSA 461 - A:6 (Supp. 2020), and we will not overturn The circuit court has wide discretion in matters involving parental rights

appropriate to use in allocating parental rights and responsibilities between a W e have previously discussed standard s that may be constitutionally

p lacement” of Child to Stepmother. Therefore, we rev erse the circuit court’s award of “custody and school and Stepmother w ith respect to Child. See Bordalo, 16 p. 4 4 N.H. at 31 4 - 17. child standard to determine parental rights and responsibilities between Father conclude that the circuit court erred in applying solely a best - interests - of - the adoptive parent. Adhering to our decision and reasoning in Bordalo, we chapter 170 - C, and that Stepmother is Child ’s stepparent, not his natural or that Father has not been found to be unfit under RSA chapter 169 - C or RSA The record in this case is clear that Father is Child ’s biological parent,

grandparent). by RSA p. 4 461 - A:6, V, prescribing special rules for awarding visitation to a VI, the predecessor to RSA 461 - A:6, V); cf. RSA 461 - A:13 (2018) (as referenced stepparents are the “only two classes of third parties” identified in RSA 458:17, Janette P., 153 N.H. 200, 203 - 04 (2006) (explaining grandparents and likewise involve grandparents and stepparents); In the Matter of Jeffrey G. & (pertaining t o determinations of parental rights and responsibilities that natural or adoptive parent. See id. at 314 - 16; see also RSA 461 - A:6, V concerning parental rights and responsibilities between a stepparent and a fit, adoptive parent, this same constitutional backdrop is implicated by disputes RSA 461 - A:6, V, and neither a stepparent nor a grandparent is a natural or stepparents and grandparents are the two classes of third parties identified in by usin g a best - interests standard. Bordalo, 164 N.H. at 31 5 - 17. Because justices did agree that the statute could not be constitutionally applied simply constitutionality of the statute as applied in individual cases; h owever, all five judgment that it was, what standard should be employed to assess the 458:17, VI was constitutional on its face and, in light of the majority’s opinions were issued in R.A., the court being divided both as to whether RSA predecessor to RSA 461 - A:6, V). As we discussed in Bordalo, three separate (plurality opinion) (examining RS A 458:17, VI (2004) (repealed 2005), the 164 N.H. at 314, 316; see In the Matter of R.A. & J.M., 153 N.H. 82 (2005) fundamental liberty interest in raising and caring for their children.” Bordalo, either wi th Troxel, 530 U.S. at 66, or our precedents recognizing parents’ between a grandparent and a fit natural or adoptive parent does not comport standard to adjudicate disputes concerning parental rights and responsibilities A:6, V in Bordalo to ultimately conclude that “[a]pplying solely a best - interests It was a gain st this constitutional backdrop that we considered RSA 461 -

C (termination of parental rights).” Id. either RSA chapter 169 - C (abuse and neglect proceedings) or RSA chapter 170 parents are presumed to be fit parents until they are found to be unfit under “Even though their parenting skills are less than ideal, biological and adoptive they have not been model parents.” Id. (quotation and alterations omitted). p. 5 5

concurring in part and dissenting in part). endorsed that reasoning. R.A., 1 p. 5 53 N.H. at 110 (Nadeau and Galway, JJ., (or, its successor, RSA 461 - A:6 (Supp. 2005)),” but only two of the five justices constitutionally appropriate standard to use “when applying RSA 458:17, VI 315. In R.A., the alternative in loco parent is test was contemplated as the the parent who is denied such rights and responsibilities to be unfit.” Id. at grandparent in appropriate circumstances even when the court has not found allowed it to “award parental rights and responsibilities to a stepparent or Mother had not challenged the trial court’s interpretation that RSA 461 - A:6, V reviewing the trial court’s application of the four - part Broderick test, that itself error. Bordalo, 164 N.H. at 315, 317 - 19. We also specifically noted, in noted that no party argued that the trial court’s use of the Broderick test was parental rights and responsibilities under RSA 461 - A:6, V, but specifically court erred in finding that the Broderick test was satisfied in allocating under its successor, RSA 461 - A:6, V. In Bordalo, we reviewed whether the trial should be applied to determinations of parental rights and responsibilities response to a challenge that RSA 458:17, VI was facial ly un constitutio nal, contemplated constitutional standards, which were outlined in R.A. in Nor is there a precedential opinion evaluating how our previously

support to afford it precedential weight in New Hampshire. parents” (emphasis omitted)). However, no standard has received sufficient or other third party can obtain custody of a child over fit biologi cal or adoptive (Dalianis and Duggan, JJ., dissenting) (reiterating they “believe that no relative a child over a biological or adoptive parent); Jeffrey G., 1 p. 5 53 N.H. at 205 stepparent who has established in loco parentis status” may obtain custody of J.) (opining, with Chief Justice Broderick’s support, that “a grandparent or has not been found to be unfit); see also Jeffrey G., 153 N.H. at 204 (Galway, a stepparent or grandparent, under any standard, when the parent at issue Federal C onstitution s, reasoning that there is no authority to award custody to Broderick test nor the in loco parentis test comported with the State and (Dalian is and Duggan, JJ., dissenting) (finding that neither the proffered prescribing a n in loco parentis test in its place); R.A., 153 N.H. at 111 - 12 the Broderick test was the constitutionally appropriate standard and and Galway, JJ., concurring in part and dissenting in part) (disagreeing that test is proven by clear and convincing evidence); R.A., 153 N.H. at 110 (Nadeau parent is not unreasonable or unduly restrictive of parental rights only if” t hat stepparent or a grandparent over the objection of a fit natural or adoptive called the Broderick test — and holding that “an award of custody to a (prescribing, in that case’s controlling opinion, a four - part test — subsequently appropriate constitutional standard is); R.A., 153 N.H. at 101 (Broderick, C.J.) interests standard is i nappropriate, it is unsettled in New Hampshire what the the fact that, beyond the established consensus that using solely a best - 315 - 17 (discussing the three separate opinions issued in R.A., in recognition of grandparent or a stepparent and a fit, natural or adoptive parent. See id. at p. 6 6

concurred. M AC DONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,

remand for further proceedings consistent with this opinion. Accordingly, we reverse the parenting plan decision of the trial court and

insufficient, as a matter of law, to satisfy the Broderick test. Step mother. See id. We, therefore, conclude that the evidence was forced to leave the significant psychological parent - child relationship” with protecting [Child] from the emotional harm that would result if [Child] were Stepmother was “necessary for the State to enforce its compelling interest in overriding factor justifying intrusion into [Father’s] rights” or that the award to however, that the evidence was sufficient to establish either “some additional Broderick criteria have been met. On this record, we cannot conclude, For purposes of this analysis, we will assume that the first and second

R.A., 153 N.H. at 101.

stepparent or grandparent. psychological parent - child relationship between the child and the that would result if the child were forced to leave the significant compelling interest in protecti ng the child from the emotional harm and (4)] the custody award [is] necessary for the State to enforce its failure by the opposing parent to accept parental responsibilities[; justifying intrusion into the parent’s rights, such as a significant dissolution; and (3) there is some additional ov erriding factor relationship; (2). . . the family is already in the process of interest because of a significant psychological parent - child (1) the custody award would specifically be in the child’s best

convincin g evidence that: restrictive of parental rights only if the petitioning party can show by clear and objection of a fit natural or adoptive parent, is not unreasonable or unduly Broderick test, an award of custody to a stepparent or grandparent, over the this appeal, the Broderick test is the correct standard to apply. Under the before the circuit court, we will assume without deciding that, for purposes of established that the Broderick test was satisfied. On this briefing and record Father’s motion to reconsider filed in the trial court, she argued that the record Although Stepmother has not filed a brief in this court, in h er objection to Broderick test and that the evidence was insufficient to meet this test. On appeal, Father maintains that the correct standard to apply is the