In the Matter of Haley St. Pierre and Adam Thatcher

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
2nd Circuit Court-Lebanon Family Division
No. 2018-0013
IN THE MATTER OF HALEY ST. PIERRE AND ADAM THATCHER
Argued: March 6, 2019
Opinion Issued: May 31, 2019
Family Legal, PC, of Concord (Jay Markell on the brief and orally), for the
petitioner.
Decato Law Office, of Lebanon (R. Peter Decato on the brief and orally),
for the respondent.
LYNN, C.J. The respondent, Adam Thatcher, appeals an order of the
Circuit Court (Luneau, J.) granting the emergency motion of the petitioner,
Haley St. Pierre, to relocate with her child to Florida. We affirm.
I
The following facts were found by the trial court, or are otherwise
supported by the record and undisputed on appeal. The respondent and the
petitioner met in August 2012. Later that year, they moved in together, having
developed a romantic relationship. In February 2013, the petitioner traveled to
New York for a weekend, where she had sexual relations with Colby Santaw,
her former boyfriend. Shortly thereafter, she discovered that she was
pregnant. Upon learning of the pregnancy, she informed the respondent that
he was the father, and notified Santaw that he was not. The respondent,
having been made aware of the petitioner’s intimate relations with Santaw,
asked the petitioner if Santaw could be the father. The petitioner assured the
respondent that the child was his.
The child was born on October 31, 2013. An affidavit of paternity was
completed by the parties at the hospital following the child’s birth. Prior to
signing the affidavit, the parties were informed by hospital staff that if they
thought there was a chance that the respondent was not the father, they
should not sign the affidavit. Section II of the affidavit, labeled “Information
About the Child’s Natural Father,” included the following declaration above the
father’s signature line:
I am signing this Affidavit voluntarily and of my own free will. No
force has been used upon me, and no threats or promises made to
me by anyone. I understand that by signing this Affidavit I am
declaring I am the natural father of the child named above . . . and
accept financial and legal responsibility for the child and shall be
subject to the child support provisions of RSA 168-A:2. I
understand that a signed Affidavit is a finding of paternity equal to
a finding by a court of law.
Following completion of the affidavit by the parties, the respondent was listed
as the child’s father on the birth certificate.
The parties married in January 2014, and, citing irreconcilable
differences, divorced in July 2015. Following the divorce, the petitioner
rekindled her relationship with Santaw. On a trip together in October 2015,
the petitioner and Santaw began discussing the birthdate of the child. After
considering the timing of his intimate relationship with the petitioner and the
child’s date of birth, Santaw believed that he might be the child’s father. This
belief was strengthened when he compared baby pictures of the child to his
own baby pictures, and noticed a resemblance. Shortly thereafter, the
petitioner and Santaw agreed to conduct genetic testing. In October 2015,
these test results confirmed that Santaw was the child’s biological father.
Following this discovery, the petitioner, as a self-represented litigant,
filed a “Petition to Change Court Order” in the trial court, requesting that the
court amend the parties’ parenting plan, instituted after their divorce, by
removing the respondent’s name from the child’s birth certificate, changing the
child’s last name, and granting the petitioner full custody. In support of this
request, the petitioner stated that the respondent was not the child’s biological
father, that the biological father was filing for custody rights, and that the
biological parents (the petitioner and Santaw) now lived together and wished
“to keep the biological nuclear family intact.” Santaw intervened, requesting
that the court award him parental rights as the child’s biological father, issue a
parenting plan describing those parental rights, and change the child’s last
name to “Santaw.”
2
The respondent filed an answer and counterclaim in December 2015, in
which he asserted that he stood in loco parentis to the child because he had
intentionally accepted the rights and duties of natural parenthood. He further
claimed that, although he was not the child’s biological father, he was her
“psychological parent,” as he had demonstrated “a full commitment to raising
and caring for [her].” He stated that it was the court’s duty to “protect the
interests of the child in custody determinations,” and asked that the court deny
the relief requested by the petitioner and Santaw, and instead award him
primary physical responsibility of the child.
On March 17, 2017, following a hearing in which the parties and Santaw
testified, the trial court issued an order. The court explained that, pursuant to
RSA 5-C:28, III, a party challenging an affidavit of paternity beyond 60 days
from its filing must do so in “a court of competent jurisdiction.” See RSA
5-C:28, III (2013). The court further stated that, under federal law, the
challenge must be made “on the basis of fraud, duress, or material mistake of
fact.” See 42 U.S.C. § 666(a)(5)(D)(iii) (2012). The trial court concluded that
Santaw, as a “putative father,” had standing to challenge the affidavit of
paternity, and that, “[b]ased on the weight of credible evidence,” he had
succeeded in proving either fraud or material mistake of fact. In so finding, the
court explained that in completing the affidavit of paternity, the parties had
either been ignorant of the fact that the respondent was not the biological
father, and therefore made a material mistake of fact, or they had deliberately
disregarded the fact, in which case they had committed a fraud. The court
further found that Santaw was the child’s biological father, and ordered that
the paternity affidavit be rescinded and the birth certificate amended to reflect
this fact. The court declined to issue a parenting plan between the petitioner
and Santaw so long as they “are an intact couple,” and also declined to change
the child’s last name, explaining that the issue “was not sufficiently addressed
or developed at the hearing,” and that, regardless, it was a decision that the
petitioner and Santaw could make together.
The trial court also ruled that, because the respondent had been married
to the petitioner, he would retain his status as a stepparent and therefore
would “not lose his ability to ask for parenting rights and responsibilities” over
the child. The court found that the respondent has “a very strong bond with
the child” that “is in the nature of a parental bond.” The court further found
that the respondent had raised the child since birth, and concluded that it
would be in the child’s best interests for the respondent to have parenting time
with her.
The court next turned to the petitioner’s request, made in a motion filed
prior to the hearing, to relocate the child to Florida where, at that time, Santaw
resided and the petitioner was planning to move. The court determined that
the petitioner had not met her burden by a preponderance of the evidence to
show that the relocation of the child was for a legitimate purpose. See RSA
3
461-A:12, V (Supp. 2016). The court noted that while the petitioner was
engaged to Santaw, the two were not yet married. The court further noted that
the petitioner did not yet appear to have any job prospects in Florida and that
if she stayed in New Hampshire, Santaw would be able to travel from Florida to
be with her. In addition, the court concluded that the respondent had met his
burden to show that relocation was not in the child’s best interests, as his
contact with the child would be greatly affected by the move because he would
no longer be able to be a regular participant in the child’s life. “Based on the
weight of the credible evidence,” the court determined that, “at th[at] time,”
relocation to Florida was “not a necessary move” for the child. The court
vacated the parenting plan between the respondent and the petitioner and
issued a parenting schedule to be followed by the respondent.
Almost four months later, on July 6, 2017, the petitioner filed an
emergency motion to suspend the respondent’s parenting time. Her motion
was based on the following alleged facts: (1) on July 3, 2017, the child was with
the respondent when she fell into a bonfire and suffered severe burns; (2) the
respondent did not notify the petitioner of the injury until almost 13 hours
later; (3) the respondent did not take the child to a hospital or otherwise treat
her wounds; and (4) when the petitioner took the child to the hospital, she was
treated for second degree burns. The petitioner notified the trial court that
there were active investigations by the New Hampshire Division for Children,
Youth and Families, the Vermont Department for Children and Families, and
the Vermont State Police into the respondent’s conduct. She asserted that, due
to the “gross negligence” of the respondent, the trial court should award her
sole parental responsibility over the child and allow the child to move to
Florida.
On July 27, 2017, following a hearing, the trial court issued an
adjudicatory order on the petitioner’s emergency motion. The court found that
the child, while under the respondent’s supervision, had fallen into a campfire
and sustained “serious burns on her arms, thumb and back as a result, which
may require surgery.” The court further found that the respondent had failed
to notify the petitioner of the injuries until the following day, and that, while
his friend had consulted with a doctor, who examined pictures of the child’s
injuries over the phone, the respondent had not taken the child to obtain
medical assistance. In addition, the court found that when the petitioner took
the child to the hospital the following afternoon, she was transported to a burn
center in Boston, Massachusetts for specialized care, due to the level and
location of her burns. The trial court concluded that the accident was
“avoidable,” and that there was reason to modify, on a temporary basis, the
allocation of decision-making responsibilities, as well as the parenting
schedule.
The trial court also reconsidered its decision on the child’s relocation to
Florida. The court found that the parties’ circumstances had changed since
4
the initial hearing, and that, most notably, the petitioner and Santaw were now
married. The court concluded that “[b]eing able to be with her husband” was a
“legitimate reason” for the petitioner to relocate, and further concluded that it
was reasonable for her to relocate to Florida, given that Santaw’s business is
located there, and he is unable to move the business because of its state-
specific nature. The court next considered whether the respondent had shown
that relocation was not in the child’s best interests. Again, the court noted that
circumstances had changed since its initial order. The court found that the
respondent’s delay in contacting the petitioner about the child’s injuries
exemplified the petitioner’s assertions that the respondent does not
communicate with her. The court stated that the parties’ inability to
communicate was a “legitimate issue,” as the child “is very young, and depends
on the adults to communicate adequately about her needs to keep her safe.”
The court explained that it had “some concerns” about the respondent’s “ability
to properly supervise” the child, as well as concerns about his decision-making
abilities. The court found that “[n]o satisfactory explanation” had been made
as to why the child had been allowed to be so close to the fire pit, and
concluded that the respondent’s delay in communicating with the petitioner
and in seeking medical care was “not justified.” The court further found that
the incident was “concerning,” and declared that it met the standard for
modification of a parenting plan. See RSA 461-A:11, I(c) (Supp. 2016).
In light of these findings, the court concluded that it was in the best
interests of the child to award primary residential responsibility to the
petitioner and allow the petitioner and the child to relocate to Florida. The
court delayed the relocation to provide the respondent with “a chance to
normalize his relationship” with the child. In addition, the court ordered that,
after the move, the respondent could see the child “for an extended three day
weekend [in New Hampshire] around the Thanksgiving and Christmas
holidays,” and for “extended weekends” in New Hampshire during the months
of April, June, and August. The court directed that, for the remainder of the
year, the respondent travel to Florida to spend one long weekend with the child
each month. The respondent thereafter filed this appeal.
II
The family division of the circuit court has equitable powers in cases,
such as this one, that lie within its subject matter jurisdiction. See RSA 490-
D:2 (Supp. 2018), :3 (2010); Fam. Div. R. 2.1. These equitable powers are
“broad and flexible,” allowing the family division “to shape and adjust the
precise relief to the requirements of the particular situation.” In the Matter of
Neal & DiGiulio, 170 N.H. 671, 678 (2018) (quotation omitted); accord Dunlop
v. Daigle, 122 N.H. 295, 300 (1982). A court exercising its equitable powers
“will order to be done that which in fairness and good conscience ought to be or
should have been done,” and will “administer all relief which the nature of the
case and facts demand.” In the Matter of Neal, 170 N.H. at 678 (quotation
5
omitted). We review the trial court’s decision whether to grant equitable relief
for an unsustainable exercise of discretion. Id. In so doing, “we determine
whether the record establishes an objective basis sufficient to sustain the
discretionary judgment made.” Id. (quotation omitted). “The party asserting
that a trial court order is unsustainable must demonstrate that the ruling was
unreasonable or untenable to the prejudice of his case.” Id. (quotation
omitted).
As an initial matter, the respondent asserts that Santaw lacked standing
to challenge the affidavit of paternity. He argues that RSA 5-C:28 permits
challenges only by signatories to the affidavit, and not by third parties. We
need not address this claim, however, as we conclude that the petitioner, a
signatory to the affidavit, challenged the affidavit when she filed her “Petition to
Change Court Order.”
RSA 5-C:28 provides that “[a] parent or legal guardian may request to
rescind an affidavit of paternity from the clerk of the city or town where the
birth occurred within 60 days of the filing of an affidavit.” RSA 5-C:28, I
(2013). “After the 60-day rescission period has passed, any challenge to the
affidavit shall be decided only by a court of competent jurisdiction.” RSA
5-C:28, III. Here, the petitioner filed her petition outside of the 60-day
rescission period, and, thus, to comply with the statute, she was required to
file it in a “court of competent jurisdiction.” See RSA 5-C:28, III; RSA 490-D:2;
Fam. Div. R. 2.1; see also In the Matter of Neal, 170 N.H. at 675. The
petitioner met this requirement by filing her petition in the family division of
the circuit court. See RSA 490-D:2; Fam. Div. R. 2.1.
Still, the respondent argues that, because the petition was not filed as a
motion to rescind an affidavit of paternity or to disestablish paternity, and
instead requested that the court amend the parenting plan, it was insufficient
to challenge the affidavit. As we have previously pointed out, however, RSA
5-C:28 does not define what procedures apply to the challenge of an affidavit of
paternity beyond the 60-day rescission period. In the Matter of Neal, 170 N.H.
at 675. Although RSA 5-C:27 sets forth specific procedures for completing a
rescission of paternity form where a signatory is seeking to rescind the affidavit
within the 60-day rescission period, see RSA 5-C:27 (2013), the legislature has
declined to set forth instructions on challenging an affidavit outside of the
60-day rescission period. See In the Matter of Neal, 170 N.H. at 675. Thus,
because there are no procedural requirements set forth by RSA 5-C:28 as to
how to proceed with a paternity challenge once the 60-day rescission period
has run, the respondent cannot show that the petitioner was noncompliant
with any statutory mandate. See id.
We also find it noteworthy that the petitioner filed her “Petition to
Change Court Order” as a self-represented litigant. Under our case law, self-
represented parties “are bound by the same procedural rules that govern
6
parties represented by counsel.” In the Matter of Birmingham & Birmingham,
154 N.H. 51, 56 (2006). This mandate, however, does not prohibit courts from
liberally construing pleadings by self-represented litigants, provided that the
self-represented party pleads sufficient facts for the court to discern the correct
cause of action. See Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997)
(stating that, while being self-represented “does not insulate a party from
complying with procedural and substantive law,” complaints filed by self-
represented parties must be liberally construed). Furthermore, “[i]n this
jurisdiction, pleadings are construed liberally, . . . and, if counsel can
understand the dispute and the court can decide the controversy on its merits,
the pleadings are adequate.” Robbins v. Seekamp, 122 N.H. 318, 322 (1982).
In her petition, the petitioner asked the trial court to remove the
respondent from the child’s birth certificate, change the child’s last name, and
grant her full custody of the child. She requested this relief based on the
following facts: (1) that the respondent is not the child’s biological father; (2)
that the biological father is filing for his custody rights; and (3) that both
biological parents live together and wish to keep the biological nuclear family
intact. Given the relief sought, as well as the factual basis alleged for that
relief, the petitioner provided the trial court with enough information to discern
that the petitioner was effectively seeking to disestablish paternity in one
person and establish it in another. Her intentions were apparent, given our
decision in Bodwell v. Brooks, 141 N.H. 508 (1996), which states that the
concept of dual paternity is not recognized in New Hampshire. See Bodwell,
141 N.H. at 511; accord In re Paternity of D.L., 938 N.E.2d 1221, 1225 (Ind. Ct.
App. 2010) (stating that, following the execution of a voluntary
acknowledgment of paternity, if paternity is established in another man, it
follows that it must be disestablished in the first); Callahan v. Department of
Revenue, 800 So. 2d 679, 683 (Fla. Dist. Ct. App. 2001) (stating that “only one
person can be the biological father of a child”). Indeed, this is precisely what
the trial court accomplished when it named Santaw as the biological father and
placed the respondent in the position of a stepfather.
The respondent also contends that an affidavit of paternity is the
equivalent of a final judgment that, according to our case law, cannot be
challenged through genetic testing. In support of this argument, the
respondent relies primarily on our decision in In the Matter of Gendron &
Plaistek, 157 N.H. 314 (2008), in which we held that the trial court erred in
ordering genetic testing in support of the mother’s challenge to the paternity
affidavit, as the testing was not in the best interests of the child. Matter of
Gendron, 157 N.H. at 321.
In Matter of Gendron, the parties executed a “Voluntary Acknowledgment
of Paternity” in Massachusetts following the birth of the child. Id. at 315.
Almost three years later, the mother asserted, in a responsive court pleading,
that the father was not the child’s biological father, and requested that the
7
court order DNA testing to establish paternity. Id. at 316. The trial court
ordered the father to submit to genetic testing, and he appealed. Id. at 316-17.
Under Massachusetts law, a challenge to a voluntary acknowledgment of
paternity, if made outside of the 60-day rescission period, must be brought
within one year of the date of signing the acknowledgment. Id. at 318 (citing
Mass. Gen. Laws ch. 209C, § 11(a) (2007)). Massachusetts law also dictates
that, if the acknowledgment has not been challenged in accordance with the
foregoing requirement, “‘no judicial proceeding shall be required or permitted to
ratify [the] acknowledgement,’ and the acknowledgement ‘shall be recognized as
a sufficient basis for seeking an order of support, visitation or custody with
respect to the child without further proceedings to establish paternity.’” Id.
(quoting Mass. Gen. Laws ch. 209C, § 11(a)). Giving full faith and credit to
Massachusetts laws regarding the establishment of paternity, we concluded
that, because the mother had filed her challenge almost three years after the
execution of the acknowledgment, the acknowledgement had not created a
presumption of paternity, as argued by the mother, but rather had established
paternity. Id. at 317-19. We stated that, because the acknowledgment
established paternity, there was no need for additional proof of paternity. Id. at
318-19. In so doing, we explained that “[c]ertainty and finality are particularly
important in paternity determinations because stability and continuity of
support, both emotional and financial, are essential to a child’s welfare.” Id. at
321 (quotation omitted). Thus, we held that the trial court’s directive for the
father to submit to genetic testing was not in the child’s best interests. Id.
We disagree with the respondent’s assertion that Matter of Gendron
prohibits the petitioner from challenging the affidavit of paternity through
evidence of genetic testing. Unlike the Massachusetts statute, which places a
one-year limitation on challenges brought outside of the 60-day rescission
period, the New Hampshire statute does not put time constraints on challenges
beyond the initial 60-day period. See RSA 5-C:28, III. Moreover, while a
paternity affidavit executed in New Hampshire, much like in Massachusetts,
has “the legal effect of establishing paternity without requiring further action,”
the New Hampshire legislature has carved out an exception to this rule where
the affidavit is “rescinded pursuant to RSA 5-C:28.” RSA 168-A:2 (2014).
Thus, unlike in Massachusetts, a presumption of paternity executed in New
Hampshire does not become irrebuttable if unchallenged within a prescribed
time period.1 Cf. Bodwell, 141 N.H. at 511 (stating that presumption of
paternity based on a marital relationship is rebuttable and that it may be
challenged with blood tests).
The respondent also cites Matter of Gendron in support of his policy
argument that disestablishment of his paternity is contrary to the best
interests of the child because “[p]ublic policy demands that children have the
1We note that paternity petitions brought under RSA chapter 168-A, must be brought “within 18
years of the date of the birth of the child in question.” RSA 168-A:12 (2014).
8
right to certainty in their relationships with their parents.” Matter of Gendron,
157 N.H. at 321 (quotation omitted). As the Court of Appeals of Kentucky has
noted, however, there are some circumstances, such as those presented here,
where “DNA evidence must overshadow considerations related to public policy.”
Ipock v. Ipock, 403 S.W.3d 580, 587 (Ky. Ct. App. 2013) (quotation omitted).
Unlike our other cases cited by the respondent, see Watts v. Watts, 115 N.H.
186 (1975); McRae v. McRae, 115 N.H. 353 (1975), this case is not one where a
presumed father seeks, years later, to disprove his own paternity so as to avoid
paying child support. See Watts, 115 N.H. at 188-89 (stating that the
presumption of paternity could not be rebutted by blood tests because the
“defendant ha[d] acknowledged the children as his own without challenge for
over 15 years”); McRae, 115 N.H. at 355 (stating that “[t]o permit the husband
to raise the question of paternity after an eight-year period of uninterrupted
acquiescence . . . would contravene the policy of this State’s law to protect the
child and the spouse from the belated resort to scientific proof in an effort to
escape parental responsibility”). Indeed, the facts of this case are unique.
Here, there are two men who desire to be the child’s legal father, and are
willing to take on all of the responsibilities associated with that title. In a case
such as this one, “justice is not arrived at where a court . . . adjudicates a man
to be the father of a child while knowing full well that the biological
relationship has been clearly disestablished.” Ipock, 403 S.W.3d at 587-88
(quotation omitted).
Our recognition of the importance of honoring an admitted DNA test in
the circumstances of this case does not undo our holdings in Watts and
McRae, as a party may continue to rely on the doctrine of paternity by estoppel
to prevent a legal father from disclaiming paternity. See Hansen v. Hansen,
119 N.H. 473, 475 (1979) (stating that paternity may be established through
“the establishment of an estoppel by one charged with the paternity because of
his failure to question it after a substantial period of uninterrupted
acquiescence” (quotation omitted)); Ipock, 403 S.W.3d at 588 (noting that the
doctrine of paternity by estoppel affirms “the idea that a person who supports a
child financially, physically and emotionally when he knew he was not [the]
biological father should not be permitted to cease that support when it suits
him”); see also Emily J. Stolzenberg, The New Family Freedom, 59 B.C. L. Rev.
1983, 2016 (2018) (explaining that “estoppel functions to prevent an adult from
disclaiming a parental role he or she had previously been fulfilling”). In
addition, while the doctrine does not apply to the circumstances of this case,
we can conceive of situations where application of the doctrine to a challenge
presented by a biological father may be appropriate.
Next, the respondent argues that the trial court erred in rescinding the
paternity affidavit because, in challenging the affidavit, the petitioner failed to
prove fraud or material mistake of fact. As an initial matter, we note that the
current version of RSA 5-C:28 does not require a party, challenging an affidavit
of paternity outside of the 60-day rescission period, to demonstrate such proof.
9
RSA 5-C:28, III. But see RSA 5-C:11, VII (2003) (repealed and reenacted in
2005). However, the parties do not dispute the applicability of Title 42,
Chapter 7, Subchapter IV, Part D of the Social Security Act (Title IV-D), which
sets forth such a requirement, to the case before us. See 42 U.S.C.
§ 666(a)(5)(D)(iii) (requiring states that receive federal welfare funding under
Title IV-D to establish procedures under which, after the 60-day rescission
period, “a signed voluntary acknowledgement of paternity may be challenged in
court only on the basis of fraud, duress, or material mistake of fact, with the
burden of proof upon the challenger” (emphasis added)). Thus, for the
purposes of today’s decision, we assume, without deciding, that the
requirements of Title IV-D apply.
In light of this federal requirement, we conclude that the court was
correct in ruling that the petitioner met the burden of proving material mistake
of fact in challenging the affidavit of paternity. As we have stated in the past, a
trial court’s finding that a party signed an affidavit of paternity with the
mistaken belief that he was the father is the equivalent of the court finding a
“material mistake of fact.” In the Matter of Neal, 170 N.H. at 677, 679
(analyzing language in a voluntary acknowledgment of paternity executed in
Maine); see also Bay County Prosecutor v. Nugent, 740 N.W.2d 678, 682 (Mich.
Ct. App. 2007) (stating that where plaintiff established both that defendant
signed the affidavit of paternity believing he was the biological father and that a
DNA test later determined that someone else was the biological father,
“[p]resentation of the unchallenged DNA evidence was sufficient to establish a
mistake of fact”). The record supports the trial court’s finding that the parties
“were mistaken concerning the baby’s paternity.” Although the respondent
admitted in the trial court that he had “doubts” about being the child’s
biological father, he also testified that, at the time he signed the paternity
affidavit, he believed that he was the child’s biological father. Furthermore, the
petitioner testified that she informed the respondent that he was the biological
father, and that she, too, believed that to be the truth at the time the affidavit
was executed. Thus, the record supports the trial court’s conclusion that, in
signing the affidavit, the respondent was “relying on incorrect information [the
petitioner] gave him about the child’s paternity.” See Bay County Prosecutor,
740 N.W.2d at 682 (stating that “[r]egardless of whether defendant intended to
be the father when he signed the affidavit . . . , and whether he intended to
remain the legal father after he learned that he was not the child’s biological
father, the evidence established that defendant’s decision to acknowledge
paternity . . . was based, at least in part, on a mistaken belief that he was, in
fact, the biological father”). Because we conclude that the evidence presented
in the trial court is sufficient to uphold the trial court’s finding of a material
mistake of fact, we decline to address the trial court’s alternative finding of
fraud.
The respondent next argues that the trial court erred when it allowed the
child’s relocation in its ruling on the petitioner’s emergency motion. As stated
10
above, however, the trial court, in reviewing the parties’ arguments, was
exercising its “broad and flexible equitable powers . . . to shape and adjust the
precise relief to the requirements of the particular situation.” In the Matter of
Neal, 170 N.H. at 678. Given the broad discretion afforded the trial court, we
will affirm the court’s determination so long as the record demonstrates an
objective basis sufficient to sustain the court’s judgment. In the Matter of
Heinrich & Curotto, 160 N.H. 650, 655 (2010). We conclude that the record
does so here.
In reconsidering the petitioner’s relocation request, the trial court
correctly applied RSA 461-A:12, V, which requires the party seeking to relocate
to prove, by a preponderance of the evidence, that: (1) “[t]he relocation is for a
legitimate purpose”; and (2) “[t]he proposed location is reasonable in light of
that purpose.” RSA 461-A:12, V. As found by the trial court, and supported
by the record, after the court first denied the petitioner’s relocation request,
circumstances had changed — the petitioner had married Santaw and desired
to reside in Florida with her now husband. In addition, Santaw’s state-specific
business is located in Florida, making it difficult for him to move. Therefore,
the record supports the court’s conclusion that the petitioner’s request to be
with her husband was for a legitimate purpose, and that Florida was a
reasonable location in light of that purpose.
The trial court, as required by the statute, next looked to whether the
respondent had proven, “by a preponderance of the evidence, that the proposed
relocation [wa]s not in the best interests of the child.” RSA 461-A:12, VI (Supp.
2016). Again noting that circumstances had changed since its initial decision
on relocation, the trial court focused on the inability of the respondent to
communicate effectively with the petitioner. The court found that this lack of
communication was shown by the respondent’s delay in contacting the
petitioner after the child sustained serious burns that required medical
attention while in his care. The court stated that, given the child’s “very
young” age and her dependency on the adults in her life “to communicate
adequately about her needs to keep her safe,” the parties’ inability to
communicate is a “legitimate issue.” Furthermore, after the occurrence of the
child’s injuries, the court had concerns about the respondent’s “ability to
properly supervise” the child. Given these findings, the court’s conclusion that
the petitioner and the child should relocate to Florida was supported by the
record.
Similarly, we also conclude that the trial court did not commit an error
when it failed to consider, in its initial order, the respondent’s counterclaim
requesting primary physical responsibility over the child. In rescinding the
affidavit of paternity, awarding Santaw the status of legal and biological father
of the child, and referring to the respondent as a stepparent, the trial court
impliedly considered the respondent’s request. The respondent argues,
however, that the court should have analyzed his request by applying the best-
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interests-of-the-child factors set forth in RSA 461-A:6. See RSA 461-A:6 (2018)
(amended Supp. 2018). Although the statute requires that the court “consider”
the best interests of the child, see RSA 461-A:6, I, the court is required to set
forth the reasons for its decision in a written order only if requested to do so by
an aggrieved party, see RSA 461:A:6, VII. Here, there is nothing in the record
to indicate that the respondent made such a request. Regardless, it is clear
from the court’s order that it did consider the best interests of the child in
making its determination. Indeed, the trial court stated that the respondent
“has a very strong bond with the child which is in the nature of a parental
bond,” and concluded that “[i]t would be in [the child]’s best interests for [the
respondent] to have parenting time.”
In sum, we believe that the record supports the trial court’s rescission of
the paternity affidavit based on its determination that there was a material
mistake of fact made by the parties in executing the paternity affidavit. We
further believe that there is sufficient basis in the record to support the trial
court’s order granting primary custodial responsibilities to the petitioner and
allowing the relocation of the child to Florida. Accordingly, we affirm the trial
court’s order.
Affirmed.
HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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