In the Matter of Alli Morris and Dustin Morris ( 2021 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
7th Circuit-Rochester Family Division
No. 2020-0125
IN THE MATTER OF ALLI MORRIS AND DUSTIN MORRIS
Submitted: April 28, 2021
Opinion Issued: October 19, 2021
Alli Morris, the petitioner, filed no brief.
Bedard & Bobrow, PC, of Eliot, Maine (David J. Bobrow on the brief), for
the respondent.
HANTZ MARCONI, J. The respondent, Dustin Morris (Father), appeals a
decision of the Circuit Court (Alfano, J.) awarding “custody and school
placement” of his biological child (Child) to the petitioner, Alli Morris, Father’s
ex-wife and Child’s stepmother (Stepmother). See RSA 461-A:6, V (2018).
Stepmother did not file a brief or memorandum of law in this appeal; we
proceeded with, and now decide, this case on Father’s brief only. Because we
conclude that the circuit court erred in applying solely a best-interests-of-the-
child standard to determine the parental rights and responsibilities between
Father and Stepmother with respect to Child, we reverse and remand.
I
The relevant facts follow. Child was born in 2005 to Father and Child’s
biological mother, who passed away in 2008. Father and Stepmother began a
romantic relationship in 2010 and married in 2013. The parties separated in
2016 and later filed for divorce, necessitating the allocation of parental rights
and responsibilities between them with respect to their three, shared biological
children, and with respect to Child, whom Stepmother has “raised . . . as her
child” but has not adopted. On July 3, 2019, a final hearing was held to, in
part, determine the parenting plan for Child. Father and Stepmother were
each represented by counsel, and a guardian ad litem represented the
children’s interests. At the time of the hearing, Father and Stepmother lived
approximately an hour apart and in different school districts in New
Hampshire.
Following the hearing, the circuit court issued an order in which it found
that permitting Child “to live with Father and to go to school in his school
district [is] not in the child’s best interests.” “This is based on the fact,” the
court reasoned, “that Father travels extensively for work, and would not be
physically present for weeks at a time to parent.” The court found that Father
continues to seek out-of-state work, that Stepmother “does not have the
resources to take [Child] to school in Father’s school district” given the distance
from her home, and that “even if Father’s girlfriend would be available when
Father is traveling, which does not appear to be the case, then the child should
be with [Stepmother]” in light of Child’s relationship with her and the lack of
evidence regarding Child’s relationship with Father’s girlfriend.
Although the court made findings critical of Father’s “effective[ness]” as a
parent, the record does not reflect that Father was found to be an unfit parent
pursuant to RSA chapter 169-C (2014 & Supp. 2020) or RSA chapter 170-C
(2014 & Supp. 2020). The circuit court acknowledged that Child “wants more
time with his Father,” and ordered that Child “spend every weekend with his
Father that his Father is physically available to parent him,” but otherwise,
that Child would have “the same parenting schedule as the other children,
which is every other weekend” with Father, and “the remaining parenting time”
with Stepmother. The court further stated that “[t]he parties are encouraged to
allow [Child] to be with his Father as often as possible, but are ordered to have
[Child] attend school in [Stepmother’s] school district.”
Father moved for reconsideration, arguing that the circuit court erred in
“awarding custody” of Child to Stepmother based solely upon a best-interests
standard. He argued that the use of such a standard was “impermissible”
because Stepmother is not Child’s biological or adoptive mother, and he is
Child’s biological father and is presumed to be a fit parent, acting in Child’s
best interests. The circuit court denied Father’s motion, explaining that “New
Hampshire law provides that the court in a divorce may award custody to a
step-parent in preference even to a natural parent based on the best interests
of the child.” (Citing RSA 461-A:6, V.) Father filed subsequent motions in
August and September of 2019, which the circuit court denied as untimely.
This appeal followed.
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II
The circuit court has wide discretion in matters involving parental rights
and responsibilities under RSA 461-A:6 (Supp. 2020), and we will not overturn
its determination except when there has been an unsustainable exercise of
discretion. See In the Matter of Bordalo & Carter, 164 N.H. 310, 313 (2012);
see also RSA 461-A:20 (2018) (“Any provision of law that refers to the ‘custody’
of minor children shall mean the allocation of parental rights and
responsibilities as provided in this chapter.”). However, we apply a de novo
standard of review both to the constitutionality of a statute and to the circuit
court’s application of the law to the facts. See Bordalo, 164 N.H. at 314.
RSA 461-A:6, V specifically pertains to determinations of parental rights
and responsibilities as to a stepparent or grandparent, and provides:
If the court determines that it is in the best interest of the children,
it shall in its decree grant reasonable visitation privileges to a party
who is a stepparent of the children or to the grandparents of the
children pursuant to RSA 461-A:13. Nothing in this paragraph
shall be construed to prohibit or require an award of parental
rights and responsibilities to a stepparent or grandparent if the
court determines that such an award is in the best interest of the
child.
RSA 461-A:6, V. This statutory language was also at issue in Bordalo. In that
case, we concluded that solely a best-interests-of-the-child standard could not
be constitutionally applied to determinations of parental rights and
responsibilities between a grandparent and a fit, natural or adoptive parent.
Bordalo, 164 N.H. at 312, 314, 316. We hold that this conclusion applies
equally to determinations of parental rights and responsibilities between a
stepparent and a fit, natural or adoptive parent, as there is no constitutional or
statutory basis to differentiate between grandparents and stepparents in this
context.
“It is well-established that parents have a fundamental liberty interest in
raising and caring for their children.” Id. at 314; see Troxel v. Granville, 530
U.S. 57, 66 (2000) (plurality opinion); see also U.S. CONST. amend. XIV; N.H.
CONST. pt. I, art. 2. We have adopted the Troxel plurality’s ruling that fit
parents are presumed to act in the best interest of their children. Bordalo, 164
N.H. at 314. “Provided that a parent is fit, there will normally be no reason for
the State to inject itself into the private realm of the family to further question
the ability of that parent to make the best decisions concerning the rearing of
that parent’s children.” Id. (quotation omitted).
“Moreover, the fundamental liberty interest of parents in the care,
custody and management of their children does not evaporate simply because
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they have not been model parents.” Id. (quotation and alterations omitted).
“Even though their parenting skills are less than ideal, biological and adoptive
parents are presumed to be fit parents until they are found to be unfit under
either RSA chapter 169-C (abuse and neglect proceedings) or RSA chapter 170-
C (termination of parental rights).” Id.
It was against this constitutional backdrop that we considered RSA 461-
A:6, V in Bordalo to ultimately conclude that “[a]pplying solely a best-interests
standard to adjudicate disputes concerning parental rights and responsibilities
between a grandparent and a fit natural or adoptive parent does not comport
either with Troxel, 530 U.S. at 66, or our precedents recognizing parents’
fundamental liberty interest in raising and caring for their children.” Bordalo,
164 N.H. at 314, 316; see In the Matter of R.A. & J.M., 153 N.H. 82 (2005)
(plurality opinion) (examining RSA 458:17, VI (2004) (repealed 2005), the
predecessor to RSA 461-A:6, V). As we discussed in Bordalo, three separate
opinions were issued in R.A., the court being divided both as to whether RSA
458:17, VI was constitutional on its face and, in light of the majority’s
judgment that it was, what standard should be employed to assess the
constitutionality of the statute as applied in individual cases; however, all five
justices did agree that the statute could not be constitutionally applied simply
by using a best-interests standard. Bordalo, 164 N.H. at 315-17. Because
stepparents and grandparents are the two classes of third parties identified in
RSA 461-A:6, V, and neither a stepparent nor a grandparent is a natural or
adoptive parent, this same constitutional backdrop is implicated by disputes
concerning parental rights and responsibilities between a stepparent and a fit,
natural or adoptive parent. See id. at 314-16; see also RSA 461-A:6, V
(pertaining to determinations of parental rights and responsibilities that
likewise involve grandparents and stepparents); In the Matter of Jeffrey G. &
Janette P., 153 N.H. 200, 203-04 (2006) (explaining grandparents and
stepparents are the “only two classes of third parties” identified in RSA 458:17,
VI, the predecessor to RSA 461-A:6, V); cf. RSA 461-A:13 (2018) (as referenced
by RSA 461-A:6, V, prescribing special rules for awarding visitation to a
grandparent).
The record in this case is clear that Father is Child’s biological parent,
that Father has not been found to be unfit under RSA chapter 169-C or RSA
chapter 170-C, and that Stepmother is Child’s stepparent, not his natural or
adoptive parent. Adhering to our decision and reasoning in Bordalo, we
conclude that the circuit court erred in applying solely a best-interests-of-the-
child standard to determine parental rights and responsibilities between Father
and Stepmother with respect to Child. See Bordalo, 164 N.H. at 314-17.
Therefore, we reverse the circuit court’s award of “custody and school
placement” of Child to Stepmother.
We have previously discussed standards that may be constitutionally
appropriate to use in allocating parental rights and responsibilities between a
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grandparent or a stepparent and a fit, natural or adoptive parent. See id. at
315-17 (discussing the three separate opinions issued in R.A., in recognition of
the fact that, beyond the established consensus that using solely a best-
interests standard is inappropriate, it is unsettled in New Hampshire what the
appropriate constitutional standard is); R.A., 153 N.H. at 101 (Broderick, C.J.)
(prescribing, in that case’s controlling opinion, a four-part test — subsequently
called the Broderick test — and holding that “an award of custody to a
stepparent or a grandparent over the objection of a fit natural or adoptive
parent is not unreasonable or unduly restrictive of parental rights only if” that
test is proven by clear and convincing evidence); R.A., 153 N.H. at 110 (Nadeau
and Galway, JJ., concurring in part and dissenting in part) (disagreeing that
the Broderick test was the constitutionally appropriate standard and
prescribing an in loco parentis test in its place); R.A., 153 N.H. at 111-12
(Dalianis and Duggan, JJ., dissenting) (finding that neither the proffered
Broderick test nor the in loco parentis test comported with the State and
Federal Constitutions, reasoning that there is no authority to award custody to
a stepparent or grandparent, under any standard, when the parent at issue
has not been found to be unfit); see also Jeffrey G., 153 N.H. at 204 (Galway,
J.) (opining, with Chief Justice Broderick’s support, that “a grandparent or
stepparent who has established in loco parentis status” may obtain custody of
a child over a biological or adoptive parent); Jeffrey G., 153 N.H. at 205
(Dalianis and Duggan, JJ., dissenting) (reiterating they “believe that no relative
or other third party can obtain custody of a child over fit biological or adoptive
parents” (emphasis omitted)). However, no standard has received sufficient
support to afford it precedential weight in New Hampshire.
Nor is there a precedential opinion evaluating how our previously
contemplated constitutional standards, which were outlined in R.A. in
response to a challenge that RSA 458:17, VI was facially unconstitutional,
should be applied to determinations of parental rights and responsibilities
under its successor, RSA 461-A:6, V. In Bordalo, we reviewed whether the trial
court erred in finding that the Broderick test was satisfied in allocating
parental rights and responsibilities under RSA 461-A:6, V, but specifically
noted that no party argued that the trial court’s use of the Broderick test was
itself error. Bordalo, 164 N.H. at 315, 317-19. We also specifically noted, in
reviewing the trial court’s application of the four-part Broderick test, that
Mother had not challenged the trial court’s interpretation that RSA 461-A:6, V
allowed it to “award parental rights and responsibilities to a stepparent or
grandparent in appropriate circumstances even when the court has not found
the parent who is denied such rights and responsibilities to be unfit.” Id. at
315. In R.A., the alternative in loco parentis test was contemplated as the
constitutionally appropriate standard to use “when applying RSA 458:17, VI
(or, its successor, RSA 461-A:6 (Supp. 2005)),” but only two of the five justices
endorsed that reasoning. R.A., 153 N.H. at 110 (Nadeau and Galway, JJ.,
concurring in part and dissenting in part).
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On appeal, Father maintains that the correct standard to apply is the
Broderick test and that the evidence was insufficient to meet this test.
Although Stepmother has not filed a brief in this court, in her objection to
Father’s motion to reconsider filed in the trial court, she argued that the record
established that the Broderick test was satisfied. On this briefing and record
before the circuit court, we will assume without deciding that, for purposes of
this appeal, the Broderick test is the correct standard to apply. Under the
Broderick test, an award of custody to a stepparent or grandparent, over the
objection of a fit natural or adoptive parent, is not unreasonable or unduly
restrictive of parental rights only if the petitioning party can show by clear and
convincing evidence that:
(1) the custody award would specifically be in the child’s best
interest because of a significant psychological parent-child
relationship; (2) . . . the family is already in the process of
dissolution; and (3) there is some additional overriding factor
justifying intrusion into the parent’s rights, such as a significant
failure by the opposing parent to accept parental responsibilities[;
and (4)] the custody award [is] necessary for the State to enforce its
compelling interest in protecting the child from the emotional harm
that would result if the child were forced to leave the significant
psychological parent-child relationship between the child and the
stepparent or grandparent.
R.A., 153 N.H. at 101.
For purposes of this analysis, we will assume that the first and second
Broderick criteria have been met. On this record, we cannot conclude,
however, that the evidence was sufficient to establish either “some additional
overriding factor justifying intrusion into [Father’s] rights” or that the award to
Stepmother was “necessary for the State to enforce its compelling interest in
protecting [Child] from the emotional harm that would result if [Child] were
forced to leave the significant psychological parent-child relationship” with
Stepmother. See id. We, therefore, conclude that the evidence was
insufficient, as a matter of law, to satisfy the Broderick test.
Accordingly, we reverse the parenting plan decision of the trial court and
remand for further proceedings consistent with this opinion.
So ordered.
MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,
concurred.
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