In re R.A. , 153 N.H. 82 ( 2005 )

Nadeau and Galway, JJ.,

concurring in part and dissenting in part. While we agree with Chief Justice Broderick’s result and his conclusion that RSA 458:17, VI (2004) (repealed Oct. 1, 2005), is constitutional on its face, we respectfully disagree with his newly adopted test concerning the application of RSA 458:17, VI in custody disputes between a fit biological or adoptive parent and a grandparent or stepparent with in loco parentis status.

The right of biological and adoptive parents to make decisions regarding the care, custody and control of their children is a fundamental liberty interest protected by both the State and Federal Constitutions. In the Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003); Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). However, the State has a competing interest in the welfare of children within its jurisdiction and may exercise its parens patriae power to intervene if a child’s welfare is at stake. Preston v. Mercieri, 133 N.H. 36, 40 (1990). Accordingly, “parental rights are not absolute, but are subordinate to the State’s parens patriae power, and must yield to the welfare of the child.” Id. (emphasis added). The best interests of the child guide all custody matters in New Hampshire. See Bodwell v. Brooks, 141 N.H. 508, 512 (1996). Therefore, we must consider the constitutionality of RSA 458:17, VI in the context of these competing interests.

In Troxel, the United States Supreme Court held that a Washington statute, granting “any person” standing to petition the court for visitation “at any time” and giving the court authority to grant visitation whenever it “may serve the best interest of the child,” was unconstitutional and “breathtakingly broad.” Troxel, 530 U.S. at 67. While acknowledging the presumption that fit parents act in the best interests of their children, the court stated that “[t]he problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to [the biological mother’s] determination of her daughters’ best interests.” Id. at 69. The Court reasoned that “if a fit parent’s decision [concerning visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Id. at 70 (emphasis added). The court specifically declined to consider “whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.” Id. at 73. Thus, Troxel does not preclude the court from exercising its parens patriae power in a custody dispute involving a fit parent and a third party so long as, in doing so, it grants some deference to a fit parent’s fundamental liberty interest in the care, custody and control of the child.

We agree that RSA 458:17, VI is constitutional on its face because it is narrowly tailored, identifying only two classes of third parties who have standing to be considered in a custody dispute; namely, grandparents and stepparents. Unlike the “breathtakingly broad” Washington statute at issue in Troxel, RSA 458:17, VI, on its face, limits the third parties who may be considered in a custody dispute, thereby protecting the biological or adoptive parent’s constitutional rights. We have previously recognized that a denial of an award of physical custody is not equivalent to the termination of parental rights, and, therefore, does not require proof of the natural parent’s unfitness. See Stanley D. v. Deborah D., 124 N.H. 138, 142-43 (1983) (awarding joint legal custody and sole physical custody to the stepfather instead of the natural mother); Bodwell, 141 N.H. at 514 (holding that an in loco parentis stepfather can be a party to a custody proceeding between unwed biological parents). Given that we believe that Troxel does not mandate a finding of parental unfitness before a court may award visitation to a grandparent or stepparent, we conclude Chief Justice Broderick’s determination, that RSA 458:17, VI is constitutional on its face, is consistent with both our State jurisprudence and Troxel.

Having concluded that RSA 458:17, VI is facially constitutional under Troxel, the chief justice next considers whether RSA 458:17, VI can be constitutionally applied to the custody dispute at issue. Because this dispute involves a fit biological parent (the father) and a related third party (the grandmother) and involves important and fundamental parental rights, the chief justice correctly applied a strict scrutiny analysis. We agree that additional procedural and substantive safeguards should be adopted and implemented in order to protect the biological parents’ rights when RSA 458:17, VI is applied in custody disputes between such parents and one of the two statutorily enumerated third parties with standing to intervene. However, we would adopt a less stringent standard than that proposed by the chief justice.

His test subordinates the best interests of the child to the fundamental liberty interests of the fit parent. We believe that this is erroneous. See Preston, 133 N.H. at 40. The time has come for courts to stop treating children as the chattel of their parents. In child custody disputes, the best interests of the child must be paramount. See id.

Accordingly, when applying RSA 458:17, VI (or, its successor, RSA 461-A:6 (Supp. 2005)), to determine a custody dispute between a fit biological or adoptive parent and a grandparent or stepparent, we would require the grandparent or stepparent to prove by clear and convincing evidence that: (1) based on the totality of the facts and circumstances of the case, he or she has established an in loco parentis relationship with the child; (2) the denial of custody to the grandparent or stepparent would cause significant emotional harm to the child; and (3) it is in the best interests of the child to award custody to the grandparent or stepparent. We believe these requirements provide the extra procedural and substantive protections that accord presumptive validity to the biological or adoptive parents’ interests and strike the proper balance between protecting those fundamental liberty interests and upholding the State’s parens patriae power to protect the best interests of the child.

The chief justice would also require the intervening third party to prove the existence of an additional factor, such as that the biological parent has significantly failed to accept his or her parental responsibilities. Since fit parents are presumed to act in the best interests of their children, see Nelson, 149 N.H. at 547; Troxel, 580 U.S. at 68-69, a parent who significantly fails to accept his or her parental responsibilities is arguably unfit. Thus, imposing this additional factor sets the bar so high, particularly when the third party is a grandparent, that it is virtually indistinguishable from many of the extra protections required in abuse and neglect and termination of parental rights cases. To require proof of this additional factor would unreasonably restrict the court’s ability to exercise its parens patriae power and protect the best interests of the child— particularly in cases involving a grandparent.

This application of RSA 458:17, VI is consistent with the additional protections required under Troxel and the present state of our jurisprudence governing custody issues. To hold otherwise, would require that a child raised for years by a grandparent or stepparent would always be given to a fit biological or adoptive parent without considering the best interests of the child.

We have declined to find that a denial of physical custody is equivalent to the termination of parental rights. Stanley D., 124 N.H. at 142-43. We have also declined to grant custodial rights to a third party who was not statutorily identified in RSA 458:17, VI but had established an in loco parentis relationship with the child. Nelson, 149 N.H. at 549 (custody dispute between the biological mother and an unrelated third party with whom she had been in a long-term relationship and who had established in loco parentis status). In the context of a custody determination, the emotional ties that exist between a third party, who is not a grandparent or stepparent as protected by statute but has attained in loco parentis status, and the child are important. However, we need not address the applicability of this test to such third parties because that issue is not before us.

While the dissent interprets Troxel to create a bright-line rule, which may be easily applied, we believe its interpretation is overly broad and fails to protect adequately the State’s parens patriae power, and by extension the best interests of the child, which is the fundamental principle guiding all custody matters. Bodwell, 141 N.H. at 512. By contrast, our test preserves the biological and adoptive parents’ fundamental liberty interests, while not unreasonably restricting the court’s ability to exercise its parens patriae power to protect the best interests of the child.

Therefore, consistent with the foregoing, we would reverse and remand this case for a determination of custody consistent with the procedural and substantive protections encompassed in our proposed test.