2004-721, IN THE MATTER OF R. A. AND J. M.

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THE SUPREME COURT OF NEW HAMPSHIRE

Sullivan
No. 2004-721
IN THE MATTER OF R.A. AND J.M.
Argued: September 29, 2005
Opinion Issued: December 30, 2005

Upton & Hatfield, LLP, of Concord (Lauren S. Irwin and Matthew R. Serge on the joint brief, and
Kenneth J. Barnes orally), for the petitioner.

Law Office of J. Brandon Giuda, PLLC, of Epsom (J. Brandon Giuda on the brief and orally), for the
respondent.

Stephen A. Cherry & Associates, PLLC, of Henniker (Sunny Mulligan on the joint brief), for the
intervenor.

Mary Pilkington-Casey, of Concord, by brief, for the Franklin Pierce Administrative Law and
Advocacy Clinic, as amicus curiae.

BRODERICK, C.J. R.A. (Mother), the petitioner and mother, and R.R. (Grandmother), the intervenor
and maternal grandmother, appeal the award of custody of a minor child (Daughter), by the Superior
Court (Brennan, J.) to J.M. (Father), the respondent and father. At issue is the applicability of RSA
458:17 (2004) (repealed Oct. 1, 2005) in custody disputes between unwed parents, and its
constitutionality generally. We affirm in part, vacate in part, and remand.

I

The trial court made the following findings of fact. Daughter was conceived during a one-time sexual
encounter in 1993 between Mother and Father, and was born on March 4, 1994. Although Daughter is
the child of Mother and Father, only Mother is listed on her birth certificate. Mother and Father were
not married to each other at the time of Daughter’s conception or birth; Father subsequently married
another woman in 2000.

Mother informed Father of the pregnancy in 1993, shortly after she discovered it herself. Father
admits that, several weeks after their encounter, Mother informed him that she might be pregnant.

According to Father, Mother never confirmed the pregnancy or Daughter’s birth, even though he
remained in New Hampshire for another year after Daughter’s conception. Father asserts that he first
became aware of Daughter’s birth when he was contacted in 1995 by the New Hampshire Department
of Health and Human Services (HHS).

At that time, Father was unemployed and had no permanent address. As a result, he gave HHS his
grandmother’s address. Mother claims that Father acknowledged to HHS that he was possibly
Daughter’s father. Father told HHS that he was willing to take a paternity test, but now asserts that it
was not done either because he was not given proper notice, or because the testing site was changed at
the last moment. Mother asserts that from 1995 to 2000, Father avoided taking the test, and did not
take responsibility for their daughter.

During that time, Daughter lived with Mother and Grandmother. Grandmother was present at
Daughter’s birth, and ten days later Daughter and Mother moved into Grandmother’s home in
Goshen. Daughter has spent approximately half her life living in Grandmother’s home, and the
balance with Mother in her own home. Although there have been long periods when Mother left
Daughter solely in Grandmother’s care, there were occasions when Mother lived with her daughter in
Grandmother’s home. Even when Daughter and Mother lived in their own home, Daughter would still
spend significant time with Grandmother.

Grandmother has participated extensively in Daughter’s life, taking her to doctor’s appointments and
contributing to her educational and extracurricular activities. She asserts that, even when Mother and
Daughter lived in their own home, they continued regular and consistent contact with her. She also
contends that she played the primary parental role in Daughter’s life, particularly from 2002 to 2004.
Father, however, alleges that Mother has been Daughter’s primary caregiver. He points out that,
during the three years when Daughter and Mother lived in their own home, Grandmother acted only
as a secondary babysitter and that Mother used an unrelated person as the primary babysitter.

When Daughter was six and one-half years old, at the urging of his wife, Father took a paternity test
which confirmed that he was Daughter’s father. In February 2001, one month shy of Daughter’s
seventh birthday, Mother and Father entered into a uniform support order, and Daughter met her
father for the first time. Father also added Daughter to his health insurance and began paying child
support, although the trial court found that he was $2,875 in arrears. Father then began visiting
Daughter and speaking to her on the phone.

By 2002, Daughter’s relationship with Father had progressed to the point that she spent three nights in
Massachusetts with Father and his wife. During that summer, Mother experienced significant distress
as a result of her alcohol and drug addictions. Both Grandmother and Father cared for Daughter, with
Daughter spending five or six weeks in Father’s home in Massachusetts.

Due to what they considered to be inappropriate behaviors, Father and his wife suspected that
Daughter was suffering the effects of emotional, physical or sexual abuse. In August 2002, they took
her to a physician who confirmed that Daughter had likely suffered some sort of abuse. Father
informed Mother and Grandmother of his suspicions and told them that he and his wife would like to
keep Daughter in Massachusetts.

Mother became concerned that the abuse had occurred while Daughter was in Father’s home that
summer. Fearing that Father would not return Daughter to her, Mother filed a motion for an ex parte
order of custody. A temporary hearing was held in August 2002, at which a guardian ad litem (GAL)
was appointed to represent Daughter’s interests. The court temporarily awarded Mother and Father

joint legal custody of their daughter, but granted Grandmother primary physical custody of Daughter,
subject to Father’s visitation rights on alternate weekends.

As a result of comments Daughter made to another physician and a therapist, Mother, Grandmother
and the GAL believed that Daughter had been sexually abused by Father’s wife, and in January 2003,
Mother filed petitions alleging abuse and neglect against Father and his wife. In June 2003, the court
dismissed the petition against Father and stated, with respect to his wife, that it was "not persuaded by
a preponderance of the evidence" that she had sexually abused Daughter. The court then added,
"Unfortunately, the court is persuaded by the evidence and testimony presented that the child has been
exposed to sexual behavior and may well have been sexually abused or assaulted — but not by
[Father’s wife]." The court did not state, however, who it thought might have abused Daughter.

In October 2003, Grandmother filed a motion to intervene in the custody dispute between Mother and
Father. She requested that the court award legal custody of Daughter jointly to Grandmother, Mother
and Father, and that the court award her primary physical custody. Both Mother and the GAL assented
to the motion, arguing that RSA 458:17, VI specifically allowed the superior court to award custody
to a child’s grandparent, and that granting Grandmother’s requests would be in Daughter’s best
interest. Father opposed the motion, arguing that Grandmother lacked standing. The trial court
subsequently allowed Grandmother’s intervention.

In August 2004, the trial court issued its ruling, which included a legal opinion concerning whether a
grandparent could be granted custody under RSA 458:17, VI, as well as a final decree detailing the
terms of the custody arrangement. In its legal opinion the court stated that Grandmother "has been a
true ‘parent’ to [Daughter]" and that "[b]oth of [Daughter’s] natural parents should be grateful that
[Grandmother] has done so much for their child." The trial court determined, however, that Father had
"the right to primary physical custody of [Daughter] as well as the responsibilities that go with that
right." It reyected the contention of Mother, Grandmother and the GAL that RSA 458:17, VI "was
intended to apply in a situation where a natural parent of the child, who is not unfit and who poses no
danger of harm to the child, seeks legal and physical custody of the child." The court then observed
that, even if this were the legislature’s intention, "the provision would probably be unconstitutional."
It cited the United States Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57 (2000), as
supporting this determination.

The final decree granted legal custody to Mother and Father, but not to Grandmother, and gave final
decision-making authority to Father rather than Mother. It also explicitly awarded primary physical
custody to Father and granted Mother supervised visitation rights with her daughter at Grandmother’s
home and under Grandmother’s supervision. However, the final decree also adopted, by reference,
several of the findings of fact and rulings of law proposed by Mother, Father and Grandmother. Many
of them are inconsistent with each other, as well as with the final decree itself. For example, despite
the plain language of the final decree, the court granted Father’s requested legal rulings that: (1)
Mother was not fit to exercise legal or physical custody of Daughter; (2) physical custody be awarded
to Father only; and (3) joint legal custody be awarded to Father and Grandmother, and not to Mother.

Mother, Grandmother and the GAL filed motions for reconsideration. In response, the court made
some corrections with respect to child support, post-secondary educational expenses, and
miscellaneous expenses. While the court granted Grandmother’s request to stay the order pending this
appeal, the balance of the parties’ post-decree motions were denied, leaving in place the inconsistent
findings of fact and rulings of law.

On appeal, Mother and Grandmother argue that, in general, third parties may be awarded custody
when it is in a child’s best interest, and that the trial court committed reversible error in this case when
it refused to grant joint legal custody to Grandmother and Father, and primary physical custody to
Grandmother. They claim that, because Grandmother and Daughter had a significant "parent-child"
relationship, it was in Daughter’s best interest for custody to have been awarded jointly to
Grandmother and Father, and that the trial court’s failure to do so amounts to an unsustainable
exercise of discretion. Finally, they urge that we adopt the four-part test articulated in In re Custody of
H.S.H.-K., 533 N.W.2d 419 (Wis.), cert. denied, 516 U.S. 975 (1995). This test suggests situations
when custody or visitation may appropriately be awarded to a third party. Mother and Grandmother
contend that this would remedy the constitutional deficiencies that are at the heart of Troxel.

Father requests that we affirm the trial court’s legal conclusions, as well as the final decree, arguing
that his right to raise and care for his daughter is a fundamental constitutional right. As a result, he
urges us to examine the statute under strict scrutiny — that is, that an award of custody to a stepparent
or a grandparent must be necessary to advance a compelling state interest, and must be narrowly
tailored to that end. He further argues that the trial court was correct not to apply RSA 458:17, VI, but
that even if it had, it is merely discretionary and does not require that Grandmother be awarded either
physical or legal custody. Accordingly, he asserts that the trial court properly exercised its discretion
by granting joint legal custody to him and Mother, to the exclusion of Grandmother, and awarding
him sole physical custody with supervised visitation to Mother.

We also permitted the filing of an amicus brief. It argues that courts must consider the rights of the
child as well as those of the parents, and that we must balance the best interest of the child, the
parents’ rights and the child’s in loco parentis relationships when making custody determinations.

II

Before addressing the merits of the final decree, we first discuss whether RSA chapter 458 applies to
the adjudication of custody disputes between unwed parents. In discussing the applicability of that
chapter, we recognize that the legislature has recently repealed and recodified many of these
provisions. Compare generally RSA ch. 458 (2004) with RSA ch. 461-A (Supp. 2005) (effective Oct.
1, 2005). As the repeal of these provisions did not take effect until after the trial court decided this
case, we will refer to the statutes in effect at the time of the trial court’s decision.

Father contends that the superior court heard this case under its general jurisdiction. He thus asserts
that, because RSA 458:17 applies only to cases "where there [was] a decree of divorce or nullity," the
procedures outlined in paragraph VI are not applicable here. Mother and Grandmother agree that the
court’s general jurisdiction should govern, as this is a dispute between unwed parents. However, they
contend that the superior court should still apply the procedures of RSA 458:17, and be allowed to
grant custody to Grandmother as Daughter’s grandmother.

We agree with Mother and Grandmother. This court has held that custody disputes between unwed
parents fall under the general jurisdiction of the superior court. Brauch v. Shaw, 121 N.H. 562, 570-71
(1981). "[I]f both the natural father and the natural mother of a child have existing joint custody
rights, then the superior court has authority to enforce and regulate those rights." Id. at 569; see also
Ellsworth v. Heath, 140 N.H. 833, 836-37 (1996). In Bodwell v. Brooks, 141 N.H. 508 (1996), we
held that the superior court could look to RSA 458:17, VI to decide that case. "Once the superior
court has acquired jurisdiction over a custody proceeding between unwed natural parents, it may use
its parens patriae power to decide whether the best interests of the child warrant the intervention of a
stepfather as an appropriate party in the custody determination." Bodwell, 141 N.H. at 512.

We make a similar determination here. The superior court should look to the child custody statutes of
this State for the procedures as to how custody disputes between unwed parents should be resolved.
Thus, the trial court here properly allowed Grandmother to intervene and petition the court for
custody under RSA 458:17, VI.

Il

Having decided that the procedures set forth in RSA chapter 458 govern this case, I now address the
substantive issues raised by the parties. I begin by examining the nature of parental rights under the
State and Federal Constitutions.

The right of parents to raise and care for their children is a fundamental liberty interest protected by
Part I, Article 2 of the New Hampshire Constitution. In the Matter of Nelson & Horsley, 149 N.H.
545, 547 (2003). Similarly, the United States Supreme Court has recognized that "the Due Process
Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions
concerning the care, custody, and control of their children." Troxel, 530 U.S. at 66. In Nelson, we
stated that natural or adoptive parents’ rights over their children "are not easily set aside. Only in the
most unusual and serious of cases may such fundamental rights be abrogated in favor of an unrelated
third person." Nelson, 149 N.H. at 548 (emphasis added). Parental rights "have been found to operate
against the State, against third parties, and against the child." Id. at 547 (quoting Roberts v. Ward, 126
N.H. 388, 391 (1985)).

However, both this court and the United States Supreme Court have previously allowed third parties
to gain custody of children over the objections of the children’s natural or adoptive parents. Many
different factors have informed the decisions in those cases. For example, in Stanley D. v. Deborah
D., 124 N.H. 138 (1983), a young girl’s mother married a man who was not the child’s biological
father. They subsequently had a son of their own, and raised the children as brother and sister. When
they divorced, we were required to consider whether the man could be granted primary physical
custody of the girl, and joint legal custody with her mother even though he was only a stepparent and
had not adopted her. Id. at 140. We considered it important that a family unit was created during the
marriage of the parties, that the man was the only father the girl had ever known, that she was
unaware that he was not her biological father, that he had treated her at all times as if she were his
daughter, and that he had "loved and supported her and ha[d] formed a psychological parent-child
relationship with her." Id. at 141.

In Bodwell, a woman had a romantic relationship with a man while she and her husband were
separated. The affair resulted in the birth of a child. The woman and her husband subsequently
reconciled, and they began raising the child as their own. After a paternity suit established that the
man was the child’s biological father, he petitioned for custody. The mother and her husband, the
child’s stepfather, requested that they be granted primary physical custody, and joint legal custody
with the biological father. The biological father objected to an award of any custody to the stepfather.
See Bodwell, 141 N.H. at 509-10. In holding that the stepfather could intervene and be granted
custody, we noted that he had established an in loco parentis relationship with the child, having raised
him as his own son and provided both financial and emotional support. A court-appointed guardian ad
litem also testified that the stepfather and child had formed a psychological parent-child relationship.
Additionally, we noted the importance of the stepfather’s statutory duty to care for the child as his
own under RSA 546-A:3 (1974) and RSA 458:17-c. Id. at 513-14.

In In re Diana P., 120 N.H. 791, 793 (1980), cert. denied, 452 U.S. 964 (1981), overruled on other
grounds by In re Craig T., 147 N.H. 739 (2002), we interpreted the term in loco parentis to determine

whether foster parents could bring a proceeding to terminate the rights of the natural parents, thus
allowing them to adopt the child. In holding that the foster parents had standing, we considered
whether a parental relationship existed between the foster parents and the child, and how that
relationship came about. In that case, the mother’s own neglect had led to the placement of her child
with the foster parents. This notwithstanding, Justice Brock noted in a concurring opinion that "
[uJnder the rules and regulations of the department of welfare, the foster parents do not have the legal
authority over [the child] that a natural parent normally has over his own child." Id. at 800 (Brock, J.,
concurring). He emphasized that foster parents receive compensation for the care they provide
children. Id. at 803.

We agreed that the circumstances surrounding the placement were important. "The fact that a child is
placed by an agency with foster parents may weigh against a finding that the foster parents stand in
loco parentis to the child, but it is not conclusive. The ultimate determination depends upon a
consideration of all the facts." Id. at 795 (citation omitted). Because of this, we noted that it is
important whether parents consent to their child’s placement in a foster home, and more specifically,
whether their intent is to ensure proper care for their children only while they are temporarily unable
to do so with the hopes of reuniting with their children at a future date. Id. at 796-97.

Finally, we also addressed the amount of time the child had lived with the foster parents, noting that
the foster parents "should have had the child or children in their home long enough to have formed a
“psychological family.’" Id. at 796. Noting that "the time may vary in particular cases," we stated that
a few weeks would not be enough, but "at least two or three years would seem sufficient." Id. In any
event, a controlling factor was whether "any change in custody based solely on a biological
relationship might be emotionally harmful to the child." Id. at 797.

These cases notwithstanding, we have been careful not to create a broad rule allowing anyone with a
close, personal relationship to petition for custody of a child merely because of that relationship. In
Nelson, an unmarried couple lived together for many years, during which time they had a son. There
were periods of time when the couple separated, and during these occasions the woman adopted three
other children. The couple never married. Furthermore, the man stated unequivocally that he would
not adopt the woman’s other children, although he and the woman raised them as though they were
their own. The couple subsequently separated, and the man petitioned for custody of the children.
Nelson, 149 N.H. at 544-46. We declined to hold that

the status of parent should be extended to cover all persons who have
established a parental relationship with a child through the in loco parentis or
psychological parent doctrines, affording them the same constitutional
protections. .. . To do so could elevate the rights of any unrelated third
person who has spent considerable time caring for a child over the
fundamental liberty interests of natural or adoptive parents.

Id. at 548-49. Important to our decision was the fact that the man had never become a stepparent of
the children. In distinguishing Nelson from Bodwell, we explicitly upheld the ability of stepparents to
continue to intervene in custody determinations between natural or adoptive parents under certain
circumstances. Id. at 549.

The United States Supreme Court has considered similar factors important in determining the
custodial rights of natural or adoptive parents. In Quilloin v. Walcott, 434 U.S. 246 (1978), the Court
upheld a decision by the Georgia Supreme Court allowing a man to adopt his wife’s child over the
objection of the biological father. The mother had had custody for the child’s entire life, with the

biological father providing support only on an irregular basis. Additionally, the biological father "did
not petition for legitimation of his child at any time during the 11 years between the child’s birth and
the filing of [the husband’s] adoption petition." Id. at 249-54.

However, I disagree with the Supreme Court’s reasoning in Caban v. Mohammed, 441 U.S. 380
(1979). There a man was allowed to adopt his wife’s children over the objections of the biological
father, even though the father’s name was on the children’s birth certificates and he had lived with
them and their mother, providing support for the family, throughout the first five years of the oldest
child’s life. During that time he and the mother had held themselves out as married, although he was
still married to another woman. Additionally, he continued to stay in contact with the children even
when he and their mother separated. Id. at 382.

Viewed in light of Troxel, I believe that an adoption such as the one in Caban would probably now
violate the Federal Constitution. However, even if it did not, it could not pass scrutiny under the State
Constitution. In Brauch, we stated:

The plaintiff father in this case has performed his parental duties. [He] has
openly acknowledged [the boy] as his son since birth. He has maintained a
close relationship with [the boy] through frequent and extensive visitations.
[The father] has continually provided some support for [the boy] and, [for
the three years prior to the custody dispute], has assumed sole responsibility
for [the boy’s] care. Under these circumstances, the plaintiff has "manifested
a significant paternal interest in the child" and, therefore, has developed a
right to custody equal to that of the natural mother.

Brauch, 121 N.H. at 570. Under the New Hampshire Constitution, the rights of natural or adoptive
parents may not be abrogated as in Caban unless the parents have voluntarily absented themselves
from their children’s lives, thus demonstrating a lack of significant paternal interest in the children.

Although these cases were decided before Nelson and Troxel, we and the Supreme Court have a long
history of recognizing parents’ fundamental rights to the care and custody of their children. See
Meyer v. Nebraska, 262 U.S. 390, 399 (1923); Prince v. Massachusetts, 321 U.S. 158, 166 (1944);
State v. Robert H. , 118 N.H. 713, 715-20 (1978), overruled on other grounds by Craig T.,
147 N.H. 739.

IV

With these principles established, I now examine whether, as the trial court suggested, RSA 458:17,
VI is unconstitutional on its face. Throughout the remainder of this opinion, when referring to "RSA
458:17, VI" or "paragraph VI," I am referring specifically to the sentence, "Nothing in this paragraph
shall be construed to prohibit or require an award of custody to a stepparent or grandparent if the court
determines that such an award is in the best interest of the child."

When determining matters of custody and visitation, a trial court’s overriding concern is the best
interest of the child. In the Matter of Kosek & Kosek, 151 N.H. 722, 725 (2005). In doing so, the trial
court has wide discretion, and we will not overturn its determination except where there has been an
unsustainable exercise of discretion. See id. at 724. Here, the trial court made explicit factual findings,
which Father does not dispute, that 1t was in Daughter’s best interest to remain in Grandmother’s
custody.

However, in this case we are not asked simply to rule upon the sustainability of the custody award.
Rather, the issue before us is whether a parent’s fundamental right to raise and care for his child
prohibits the State from allowing stepparents or grandparents, under any circumstances, to intervene
and be awarded custody absent a finding that the parent is unfit. The trial court in this case stated that
if RSA 458:17, VI were interpreted to permit this, it "would probably be unconstitutional" under
Troxel. I presume, therefore, that the trial court concluded that the statute was so restricted. The court
additionally concluded that, as a matter of law, it was not "in the best interest of [Daughter] for
physical custody to be placed with [Grandmother], pursuant to RSA 458:17." This conclusion,
however, is at odds with the court’s express finding that it was in "[Daughter’s] best interest to
maintain the strong bond she has with her grandmother" and that she "remain in the custody of her
maternal grandmother."

Therefore, I must decide whether a fit parent’s fundamental rights prohibit an award of custody to a
stepparent or grandparent, as allowed for in RSA 458:17, VI, and if so, whether the statute can be
constitutionally applied to the custody dispute between Mother and Father. The constitutionality of a
statute is a question of law. See State v. McLellan, 149 N.H. 237, 240 (2003). Thus, I will review de
novo the trial court’s determination as to the constitutionality of RSA 458:17, VI, and its application
to this case. See id.

As a preliminary matter, I must determine whether the legislature intended that paragraph VI allow a
grant of custody to a grandparent over a natural or adoptive parent of the child, who is not unfit and
who poses no danger of harm to the child. The trial court held, and Father argues, that this was not the
legislature’s intent. I disagree.

Where the language of a statute is clear and unambiguous, we do not examine the legislative history.
Lamy v. N.H. Pub. Utils. Comm’n, 152 N.H. 106, 108 (2005). The clear and unambiguous language
of the statute states that, where the court determines that it is in the child’s best interest, "[n]othing in
[paragraph VI] shall be construed to prohibit or require an award of custody to a stepparent or
grandparent." I see no way to read this phrase other than to permit the superior court authority to grant
custody, in appropriate circumstances, to a stepparent or grandparent, even where the court may not
have found the parent to be unfit. Father argues that the legislative history demonstrates that the
legislature did not intend to require such a custody award. While such an award may not be required,
the plain language permits it.

Having determined that the legislature intended to allow stepparents and grandparents to intervene
and obtain custody in a dispute between natural or adoptive parents, I now examine whether the
statute is constitutional. We are the final arbiter of legislative intent as expressed in the words of the
statute considered as a whole. In the Matter of Watterworth & Watterworth, 149 N.H. 442, 445
(2003). We presume that the legislature intended to confine a statute’s scope within constitutional
limits. See Appeal of Public Serv. Co. of N.H., 122 N.H. 919, 922 (1982). Our goal is to apply
statutes in light of the legislature’s intent in enacting them and in keeping with the policies sought to
be advanced by an entire statutory scheme. Appeal of Manchester Transit Auth., 146 N.H. 454, 458
(2001). A statute will not be construed to be unconstitutional where it is susceptible to a construction
rendering it constitutional. White v. Lee, 124 N.H. 69, 77-78 (1983).

Thus, I must determine whether granting joint legal custody and primary physical custody to a
grandparent over the objection of an otherwise fit natural or adoptive parent violates that parent’s
fundamental rights. We have previously held that courts may grant legal and physical custody to an
unrelated third party or the division for children, youth and families (DC YF), even to the exclusion of
the natural or adoptive parents, where the parents have been held to be unfit. See In re Bill F., 145

N.H. 267, 272-76 (2000); In re Samantha L., 145 N.H. 408, 409, 412-13 (2000); Robert H., 118 N.H.
at 715-20; Butler v. Butler, 83 N.H. 413, 415 (1928). The question here, however, deals with a grant

of primary physical custody to a grandparent and shared legal custody between the grandparent and a
natural or adoptive parent absent a finding that the parent is unfit. While we have previously decided

grandparent is one of first impression.

Because of the importance and fundamental nature of parental rights, I will apply strict scrutiny to
examine the constitutionality of paragraph VI. Strict scrutiny is the correct standard to apply when
determining the constitutionality of a statute that touches upon a fundamental right. In re Sandra H.,
150 N.H. 634, 638 (2004). As parental rights are fundamental and protected by due process, strict
scrutiny should be applied when examining statutes dealing with these rights. Robert H., 118 N.H. at
716. Under the State Constitution, this test requires that I determine if granting custody to a stepparent
or grandparent is necessary to achieve a compelling State interest. Sandra H., 150 N.H. at 638; see
also Palmore v. Sidoti, 466 U.S. 429, 432 (1984). Additionally, such a custody award must be neither
unduly restrictive nor unreasonable. Seabrook Police Assoc. v. Town of Seabrook, 138 N.H. 177, 179
(1993). In this sense a strict scrutiny analysis under the State Constitution is much like the "narrowly
tailored" analysis required under the Federal Constitution. See id.; Washington v. Glucksberg, 521
U.S. 702, 721 (1997).

We note that, generally, strict scrutiny need not be applied to custody disputes. This is because in most
cases courts will be balancing the rights of two fit parents, both of whom have the same constitutional
right to custody of their children. See Nelson, 149 N.H. at 548. Here, however, we have a grandparent
intervening in order to secure custody of a child, thus requiring that I analyze RSA 458:17, VI under
the higher standard.

The interest in a child’s well being is not limited to the parents. We recently emphasized that the State
has "a competing interest in the welfare of children within its jurisdiction." In the Matter of Berg &
Berg, 152 N.H. _, _ (decided Oct. 18, 2005) (quotation omitted). In Berg, we noted that "parental
rights are not absolute, but are subordinate to the State’s parens patriae power, and must yield to the
welfare of the child[, p]articularly in the context of divorce and custody litigation." Id. (citation and
quotation omitted). Additionally, this interest has long been recognized by the United States Supreme
Court. See Parham v. J.R., 442 U.S. 584, 603 (1979) (citing cases). Because the parens patriae power
is one of the few ways that the State has to protect the interests of minor children, I hold that this
power is not only a competing interest to parents’ rights, but that in certain circumstances it qualifies
as a compelling interest as well.

In so holding, I recognize that fit parents are presumed to act in the best interest of their children.
Nelson, 149 N.H at 547; Troxel, 530 U.S. at 68. "The statist notion that governmental power should
supersede parental authority in all cases because some parents abuse and neglect children is repugnant
to American tradition." Parham, 442 U.S. at 603. It is because of this strong presumption in favor of
fit natural or adoptive parents that I will uphold RSA 458:17, VI only if the statute withstands the
heavy burden of strict scrutiny.

When it wrote paragraph VI, the legislature stated that "[t]he paramount and controlling consideration
in deciding child custody is the overall welfare of the child." With this phrase, the legislature made
clear that it was enforcing the State’s compelling interest in protecting children. Thus, the clause in
paragraph VI allowing the superior court to grant custody to grandparents and stepparents justifies
intrusion into an otherwise fit parent’s custodial rights only when doing so is neither unduly restrictive
nor unreasonable, and when it is necessary to exercise the State’s parens patriae power to protect the

child. I first address the unreasonable or unduly restrictive inquiry, and then turn to whether the
authority granted is necessary.

As to the nature of the restriction, I begin by noting that the statute here is much more limited in scope
than that in Troxel. Paragraph VI allows a court to grant intervention by, and award custody to, only
two classes of people — a child’s stepparents and grandparents. RSA 458:17, VI. This limitation falls
within our holding in Nelson where we refused to grant standing to an "unrelated third person."
Nelson, 149 N.H. at 549. Additionally, stepparents and grandparents may only petition for custody by
intervening in an already existing custody dispute incident to divorce or nullity, or as we have just
held, in a custody dispute between unwed parents. See RSA 458:17, VI.

By contrast, the statute at issue in Troxel allowed any person to petition the court for visitation rights
at any time. Troxel, 530 U.S. at 67. Justice O’Connor, writing for a four-justice plurality, described
the statute as "breathtakingly broad." She continued, "That language effectively permits any third
party seeking visitation to subject any decision by a parent concerning visitation of the parent’s
children to state-court review." Id. In this holding the plurality was joined by Justice Souter. However,
because he agreed that the statute was unconstitutional on its face as it swept too broadly, Justice
Souter would not have "consider[ed] the precise scope of the parent’s right or its necessary
protections," as did the plurality. Id. at 76-77.

Our holding in Nelson reflects this concern over the breadth of rules governing awards of custody —
a broad rule allowing intervention by any third party in a custody dispute between natural or adoptive
parents, even where strong psychological ties exist, does not leave sufficient protection of the parents’
rights. Nelson, 149 N.H. at 548-49. There must be something more, such as a significant failure of a
parent to accept parental responsibilities, thus leaving the child to be raised by the stepparent or
grandparent in place of the parent as in Diana P. and Quilloin, or the marriage of the stepparent to one
of the child’s parents as in Stanley D., Bodwell and Quilloin, to allow such intervention to occur.
Paragraph VI does not even go so far as to allow termination of parental rights and thus permit
adoption by a third party as in Diana P. and Quilloin, but only allows intervention in custody matters
as in Stanley D. and Bodwell.

Accordingly, the degree to which an opposing parent may have failed in his or her parental
responsibilities need not necessarily rise to the extreme level of unfitness for a determination that
custodial rights should be granted jointly to the parent and a grandparent. In Stanley D.,

the trial court did not terminate the natural mother’s parental rights. Rather,
the court awarded joint legal custody to both parties and physical custody to
the stepfather. While recognizing the importance of day-to-day custody in
the spectrum of parental rights, we [did] not find that the denial of an award
of physical custody is equivalent to the termination of parental rights,
thereby requiring proof of the natural [or adoptive] parent’s unfitness or
other extraordinary circumstances.

Stanley D., 124 N.H. at 142-43. Compare id. with Santosky v. Kramer, 455 U.S. 745, 752-70 (1982)
(holding that due process requires that termination of parental rights proceedings be fundamentally
fair and proved by at least clear and convincing evidence). While I now believe that some exceptional
circumstances beyond a strong psychological relationship must be shown to justify a grant of custody
to a grandparent, I continue to believe that, where parental rights have not been terminated, proof of
unfitness is not required under Part I, Article 2 of the State Constitution. Paragraph VI, along with
paragraphs III and IV, make clear the presumption that parents should retain joint legal custody as

well as some physical custody rights even where custody is shared with a grandparent. Compare
Stanley D., 124 N.H. at 142-43, with Bill F., 145 N.H. at 272-76, and Samantha L., 145 N.H. at 409,
412-13.

Not only was the statute in Troxel exceedingly broad, but once a party had petitioned for visitation, "a
parent’s decision that visitation would not be in the child’s best interest [was] accorded no deference."
Troxel, 530 U.S. at 67. Paragraph II of RSA 458:17 states that "In the making of any order relative to
such custody there shall be a presumption, affecting the burden of proof, that joint legal custody is in
the best interest of minor children." The grandparent’s visitation statute, RSA 458:17-d, also makes
clear that parents’ wishes and rights should be given deference by the court. That section states that
courts must consider "[w]hether such visitation would interfere with any parent-child relationship or
with a parent’s authority over the child," as well as the "nature of the relationship between the
grandparent and the parent of the minor child, including friction between [them], and the effect such
friction would have on the child." RSA 458:17-d, II(b), II(d) (repealed Oct. 1, 2005).

Furthermore, when the legislature recently recodified RSA 458:17, VI as RSA 461-A:6, V, it added
various factors that courts must consider in determining the best interest of the child. The final factor
includes "[a]ny other additional factors the court deems relevant." RSA 461-A:6, I(1). Consistent with
the decisions in Nelson and Troxel, I now hold that, in determining the best interest of the child, in
cases arising under paragraph VI, it is not only relevant, but also necessary that a court give special
consideration to the wishes of the child’s parents. I believe that such an interpretation is consistent
with the entire statutory scheme. See Manchester Transit Auth., 146 N.H. at 458.

The legislature has also made provision for the appointment of a guardian ad litem "to enable the
court to make an informed decision." RSA 458:17-a, II. A guardian ad litem serves as an advocate of
the child, but may be appointed on the court’s own motion or that of any party. The appointment of a
guardian ad litem is yet another safeguard for parents’ rights and protection against arbitrary judicial
determinations.

Finally, because of the deference granted to fit natural or adoptive parents under Part I, Article 2 of
the State Constitution, as well as the Federal Constitution as interpreted in Troxel, I hold that the
intervening party, as well as any parties supporting the intervenor, must prove by clear and convincing
evidence that the stepparent or grandparent should obtain custody of a child. In Troxel, the
Washington trial court "presumed the grandparents’ request should be granted unless the children
would be ‘impact[ed] adversely.’" Troxel, 530 U.S. at 69 (alteration in original). By doing so, that
judge placed the burden on the parent to disprove that visitation would be in the best interest of the
children. Id.

I believe that RSA 458:17, VI, as interpreted here, coupled with the plain language of the statute
allowing an award of custody to stepparents or grandparents, satisfies the requirements of the State
Constitution that it be neither unduly restrictive nor unreasonable. See Seabrook Police, 138 N.H. at
179. I additionally hold that, so construed, the statute is sufficiently narrowly-tailored, thus passing
this prong of strict scrutiny under the Federal Constitution. See id.; Troxel, 530 U.S. at 67-69;
Glucksberg, 521 U.S. at 721.

We now determine if the provision allowing a grant of custody to stepparents or grandparents is
necessary to achieve the State’s compelling interest in protecting the welfare of children within its
jurisdiction. The legislature has given no guidance, beyond stating that it must be in the child’s best
interest, as to when it is necessary that a court grant custody to a stepparent or grandparent. Thus, it

falls to us to determine whether the statute is susceptible to a construction that is constitutional.
White, 124 N.H. at 77-78.

A controlling factor allowing petitions by third parties in Diana P., Bodwell and Stanley D. was the
nature of the relationship between them and the child. Those cases make clear that the best interest of
the child should take into account the child’s relationships with others, not merely the biological or
legal connection the child has, or does not have, with the third party. We have recognized the
importance of this distinction in other cases as well. "We believe that familial relationships, aside
from biological bonds, stem ‘from the emotional attachments that derive from the intimacy of daily
association,’ and from the manner in which such relationships promote family life." In re Shelby R.,
148 N.H. 237, 239 (2002) (quoting Lehr v. Robertson, 463 U.S. 248, 261 (1983)).

The United States Supreme Court has additionally recognized the importance that psychological
connections can have, even over biological ones. "[T]he existence or nonexistence of a substantial
relationship between parent and child is a relevant criterion in evaluating both the rights of the parent
and the best interests of the child." Lehr, 463 U.S. at 266-67; see also Quilloin, 434 U.S. at 256.
Additionally, ‘"[p]arental rights do not spring full-blown from the biological connection between
parent and child. They require relationships more enduring.’" Lehr, 463 U.S. at 260 (quoting Caban,

441 U.S. at 397 (Stewart, J., dissenting)).

Accordingly, to grant custody to a stepparent or a grandparent as a means to protect the child, it is
necessary that there be a substantial psychological parent-child relationship between the child and the
stepparent or grandparent, such that denial of custody to that person would "be emotionally harmful to
the child." Diana P., 120 N.H. at 797. While the amicus urges that we adopt the rigid four-part test
from H.S.H.-K., 533 N.W.2d at 421, I decline the invitation. Inflexible rules are inconsistent with the
application of a best interest analysis and "the legislative efforts at striking a balance in this delicate
and difficult area of human relationships." Diana P., 120 N.H. at 797; see also RSA 461-A:6, I(1).
However, I acknowledge that the factors mentioned in that test are very similar to those we have
previously considered and may be instructive as courts determine whether granting custody to a
stepparent or grandparent is necessary for the State to protect a child from harm. See also American
Law Institute, Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.01 to
.04, 2.18 (2002). This said, I do recognize the right of the legislature to establish its own guidelines in
this area, should it choose to do so.

I also note that, contrary to the arguments of the amicus, daily care and nurturing of children that
fosters development of an emotional parent-child bond is not deserving of full constitutional
protection. That is, the relationship does not give rise to an enforceable constitutional right in the
stepparent or grandparent. Rather the substantial nature of the relationship may make it necessary for
the State, in the exercise of its parens patriae responsibilities, to allow intervention and possibly a
grant of custody to a stepparent or grandparent in a custody dispute between natural or adoptive
parents.

Thus, I hold 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 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 custody award only be allowed where 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.
Additionally, I hold that the custody award must be 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.

I note that this holding goes further in protecting the rights of parents than have other courts
addressing this issue, both before and after Troxel. The Maine Supreme Judicial Court and Ohio
Supreme Court, for example, both upheld their States’ grandparent visitation statutes under strict
scrutiny and in light of Troxel. Rideout v. Riendeau, 761 A.2d 291 (Me. 2000); Harrold v. Collier, 836
N.E.2d 1165 (Ohio 2005). The Maine court held that the State has a compelling governmental interest
"in providing a forum within which grandparents who have acted as parents to their grandchild may
seek continued contact with that child," Rideout, 761 A.2d at 294, but did not require that
grandparents prove that failure to grant visitation would be necessary to prevent harm to the child, id.
at 304, 313 (Wathen, C.J., concurring). The Ohio Supreme Court similarly held that the State always
has a compelling interest in protecting a child’s best interest. Harrold, 836 N.E.2d at 1172.
Additionally, the Ohio court only discussed procedural protections for the parents, id. at 1171-73, and
did not require proof of the kinds of substantive issues that a stepparent or grandparent must
demonstrate in order to succeed under RSA 458:17, VI.

My holding also provides more protections for parents than did the New Jersey Supreme Court in
V.C. v. M.J.B., 748 A.2d 539 (N.J.), cert. denied, 531 U.S. 926 (2000). There, an unmarried woman
had been raising two children as their mother. At the time, she was also living with the children and
their biological parent while the two were in a romantic relationship. The New Jersey court held that
the woman’s claim to be a psychological parent to the children raised sufficient "exceptional
circumstances" to allow the woman to petition for custody and visitation of the children. Id. at 550.
The New Jersey Supreme Court did not require any showing of harm to the children, nor did it require
proof of abandonment by or marriage to the biological parent. Furthermore, that court stated that a
psychological parent "stands in parity with the legal parent" and that "[c]ustody and visitation issues
between them are to be determined on a best interests standard." Id. at 554. As I have noted, nothing
here gives psychological parents the kinds of rights extended by the New Jersey Supreme Court.

Although it did not apply strict scrutiny, my holding today is much like that of the Massachusetts
Supreme Judicial Court. In Youmans v. Ramos, 711 N.E.2d 165 (Mass. 1999), that court held that a
girl’s aunt, who had raised her as her daughter after the mother’s death, was entitled to visitation after
the girl’s father returned and claimed custody over her. The court stated:

His long acquiescence in his daughter’s living with her aunt led to the
development of the child’s close bond with her aunt. It is not the aunt’s
interests that the visitation order protects, but [the girl’s] interests. The child
is the one who is at risk of emotional damage because of her father’s belated
claim of custody. The aunt has fulfilled a role that the father chose not to
assume.

Id. at 174. I see no reason why the New Hampshire or Federal Constitutions would prohibit a similar
result.

The dissent, like the trial court here and that in Harrold, see Harrold, 836 N.E.2d at 1172-73, treats the
presumption of fitness described in Troxel as if it were irrefutable. Doing so goes against the
procedures set forth by both this court and the United States Supreme Court for analyzing
fundamental rights. A determination that an individual has a fundamental right does not foreclose the
State from ever limiting it. Rather, such a determination then requires that there be an analysis into

whether there exists any narrowly tailored set of circumstances under which intrusion into the
individual’s right is necessary to further a compelling state interest. See, e.g., Grutter v. Bollinger, 539
U.S. 306 (2003) (holding that racial diversity is compelling state interest sufficient to justify limited
discrimination in college admissions).

I am cognizant of the fact that there may be some situations under which it would not be
constitutional to grant custody to a stepparent or grandparent. However, I can foresee situations in
which doing so would not be unconstitutional, even if the opposing parent has not so neglected or
abandoned the child as to have his or her rights terminated — Le., to be declared unfit. Accordingly,
because there are some cases in which its application would be constitutional, I refuse to invalidate
RSA 458:17, VI on its face. See United States v. Salerno, 481 U.S. 739, 745 (1987) (for statute to be
held unconstitutional on its face, "challenger must establish that no set of circumstances exists under
which the Act would be valid"). While I recognize that granting custody to a stepparent or
grandparent over the objection of a fit natural parent will be, and ought to be, rare, I can envision
situations where it would be justified. The strict scrutiny analysis here provides the framework for
establishing the limited circumstances when such a custody award may occur.

Additionally, the dissent misconstrues the compelling interest analysis. I agree that the State’s parens
patriae power will generally not give it a compelling reason to inject itself into family affairs. Indeed,
I have distinguished the holding here from those of the Maine Supreme Judicial Court in Rideout and
the Ohio Supreme Court in Harrold. On the rare occasions where the State’s failure to involve itself
would lead to a child being harmed, it may be necessary that the State become involved in an existing
custody dispute between two otherwise fit natural or adoptive parents.

I agree with the dissent that "there will normally be no reason for the State to inject itself into the
concerning the rearing of that parent’s children." Troxel, 530 U.S. at 68-69 (plurality opinion)
(emphasis added). In Preston v. Mercieri, 133 N.H. 36 (1990), we noted that the State may "Intervene
in the family milieu if a child’s welfare is at stake. .. . Because the common law presumption against
intervention was premised upon the tradition of nuclear family autonomy, State intervention turned,
historically, on whether or not the parents were unfit, see [Quilloin, 434 U.S. at 248], or the family
was ‘intact.’" Preston, 133 N.H. at 40-41 (emphasis added).

My holding here recognizes that a child may be harmed, not only by being placed or remaining with
an unfit parent, but also by being removed from a stepparent or grandparent with whom, because of
the dissolution of the nuclear family, the child has acquired a significant parent-child relationship. I
recognize that "[t]he best interests of the child is . . . not an absolute and exclusive constitutional
criterion for the government’s exercise of the custodial responsibilities that it undertakes." Reno v.
Flores, 507 U.S. 292, 304 (1993) (quotation omitted). Indeed, I agree that an award of custody to a
stepparent or grandparent over the objection of a fit natural or adoptive parent would not be
constitutional if 1t were simply based on a finding that the stepparent or grandparent "would best
provide for the child’s welfare." Id.

The dissent fails to acknowledge that the Troxel plurality expressly decided that it would not

consider the primary constitutional question passed on by the Washington
Supreme Court — 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. We do not, and need not,

define today the precise scope of the parental due process right in the
visitation context.

Troxel, 530 U.S. at 73 (plurality opinion). Having done so myself, I hold that there are circumstances
in which not only visitation, but also custody, may be awarded to a stepparent or a grandparent. Nor
does the dissent explain how Quilloin — a case that the Troxel plurality and Justice Souter’s
concurring opinions expressly relied upon, Troxel, 530 U.S. at 66, 77 — would not allow an award of
custody under paragraph VI. Indeed, the implication of the dissent’s position is that, unless custody or
visitation has been granted to another fit parent, it can never be granted to anyone as long as a fit
parent objects.

Finally, I address the dissent’s contention that the holding here adds language that the legislature did
not see fit to incorporate in RSA 458:17, VI. Paragraph VI contains no standards by which a trial
court should determine whether custody ought to be granted to a stepparent or grandparent. It is
within our purview to establish the constitutional grounds within which a statute may be applied. See
Appeal of Public Serv. Co., 122 N.H. at 922; White, 124 N.H. at 77-78. Articulating the proper
burden of proof is not unprecedented in our case law. For example, in Robert H., we held that in order
to terminate parental rights, there must be a showing beyond a reasonable doubt. Robert H., 118 N.H.
at 716-17. Requiring a showing of clear and convincing evidence for RSA 458:17, VI is within our
procedures here as it was in Robert H.

Accordingly, I hold that RSA 458:17, VI survives the facial challenge of strict scrutiny under both the
State and Federal Constitutions, and may thus be applied in this case. See Nelson, 149 N.H. at 547;
Seabrook Police, 138 N.H. at 179; Troxel, 530 U.S. at 66-68, 77-78; Glucksberg, 521 U.S. at 721.

Vv

Having held that RSA 458:17, VI is facially valid, I now turn to whether applying this statute to the
custody dispute between Mother and Father is constitutional. Although the trial court did not apply

the statute, some of its factual findings, as well as the procedural steps it took, will obviate the need
for a complete relitigation of the issues. Accordingly, I dispose of some issues here and leave others
for a determination on remand.

In order for it to be constitutional to award Grandmother custody of Daughter, I must first examine
whether there were sufficient procedural safeguards to protect Mother’s and Father’s parental rights.
The record demonstrates that the court gave sufficient deference to the wishes of Mother and Father
when making the custody determination. It allowed them both multiple opportunities to be heard, and
appointed the GAL as a neutral party to help make its ruling on that issue and that of custody. Father
apparently believed that the GAL failed in her responsibilities to remain neutral, but the trial court
disagreed. Because Father did not ask the trial court to reconsider this finding, nor has he asked us on
appeal to review the actions of the GAL, I see no reason why the trial court should not consider the
GAL report on remand.

Indeed, the recommendation of the GAL — Daughter’s State-appointed representative — is uniquely
important to whether custody should be granted to Grandmother. In this case, the GAL not only
assented to Grandmother’s intervention, but she also recommended that the court implement a plan
very similar to Mother’s proposed custody arrangement — an award of joint legal custody to Mother,
Father and Grandmother, with primary physical custody of Daughter being awarded to Grandmother

and visitation rights to Mother and Father. As noted above, nothing about Grandmother’s parent-child
relationship with Daughter gives Grandmother a constitutional right to intervene or to be awarded
legal or physical custody of Daughter. Rather, the interest protected by paragraph VI is that of the
State to protect the well-being of children within its jurisdiction. The GAL supported Grandmother’s
petition, and I will allow it to go forward.

I also consider the wishes of Mother, and not simply those of Father, as important to my decision. In
this case, not only did the GAL urge granting joint custody to Father and Grandmother, but Mother
did so herself. Although the trial court found that she was unfit to exercise primary physical custody
of Daughter, this does not mean that she should have no say whatsoever in the placement of her child.
In this sense, Mother’s request is not unlike the participation of a parent in the creation of a consent
decree between parents and DCYF when the parent has been accused of abuse and neglect. See Bill
FE, 145 N.H. at 269; RSA 169-C:17 (Supp. 2005). I cannot ignore Mother’s request that Daughter be
placed with Grandmother in her home any more than I can ignore Father’s request that she be placed
in his.

Finally, while the trial court did place the burden of proving that Grandmother should be granted
custody jointly with Father upon Mother and Grandmother, it is unclear what standard the court
applied. Because of the deference granted to fit natural or adoptive parents both under Part I, Article 2
of the State Constitution and the Federal Constitution as interpreted in Troxel, we order the trial court
to apply a clear and convincing standard on remand.

To the extent that these procedural safeguards were applied, I affirm the proceedings below. However,
this does not end the analysis. The court acted on the presumption that Father, as Daughter’s
biological father, would act in her best interest. Where it failed, however, was in the conclusion that
this was an irrefutable presumption that would necessarily lead to Daughter’s being placed in his
home, and that RSA 458:17, VI should thus be held unconstitutional. Although parents have
significant rights under both the State and Federal Constitutions, see Nelson 149 N.H. at 547-49, and
Troxel, 530 U.S. at 66-67, the application of strict scrutiny shows that there are some limited
circumstances when the State’s compelling interest may supersede those rights. As interpreted here,
paragraph VI defines the very narrow situations in which such an award would be necessary to further
the State’s compelling interest, and Grandmother’s relationship with Daughter may qualify as one of
those.

For Grandmother to have been awarded custody jointly with Father, she and Mother would have had
to prevail additionally on various substantive issues: (1) whether Grandmother and Daughter had a
substantial parent-child relationship; (2) that failure to award custody to Grandmother would be
emotionally harmful to Daughter; and (3) that there was some additional factor justifying intrusion
into Father’s parental rights. Accordingly, I address whether there is sufficient evidence in the record
such that, by applying RSA 458:17, VI, the trial court may award Grandmother custody jointly with
Father.

As part of the final decree, the court adopted findings of fact proposed by each of the parties. I have
previously noted that Father does not challenge whether it is in Daughter’s best interest to remain in
Grandmother’s custody. However, it is unclear whether the parent-child relationship between
Daughter and Grandmother rises to a level sufficient to make it necessary that the State enforce its
compelling interest in protecting Daughter’s well being, thus allowing Grandmother to intervene and
obtain custody. To prevail, Grandmother must show that the parent-child relationship is so significant
that Daughter would be emotionally harmed if custody were not granted to Grandmother. From
Mother’s and Grandmother’s proposed findings of fact and rulings of law, many of which were

adopted by the trial court, it appears that Grandmother had a very significant role in Daughter’s life.
Not only has Daughter lived in Goshen her entire life, but much of that has been in Grandmother’s
home. In particular, the court adopted two of Grandmother’s findings that stated:

In the past two years, [Grandmother] has been predominately responsible for
the raising of [Daughter] — feeding her, clothing her, bathing her, tucking
her into bed at night, and taking care of her daily needs. . . . Throughout
[Daughter’s] life, [Grandmother] has played the parental role; particularly in
the last two years, [Grandmother] has been the main parental figure in
[Daughter’s] life.

Additionally, the court adopted the conclusions that it is in Daughter’s best interest "to maintain the
strong bond she has with her grandmother," and "to remain with her maternal grandmother in Goshen,
... the home she has known for the majority of her life."

While the court neither specifically adopted nor rejected the recommendations of the GAL, those
recommendations are also instructive given the GAL’s role as Daughter’s court-appointed
representative. The GAL stated:

It is the Guardian ad Litem’s belief that [Daughter] will benefit from
maintaining the positive and nurturing relationship she enjoys with her
grandmother and other members of her mother’s family, with her school and
her community, where she has lived all of her life, and where she is known
and loved. She would surely suffer irreparable harm were she to be removed
from her grandmother’s care and from her home and community. The loss of
security [Daughter] would experience would be immeasurable, were she to
be required to leave behind the safety of her home and her community to live
with her father ....

These are in stark contrast to many of Father’s proposed findings of fact, which the trial court also
adopted. These findings suggest that Mother was the one who cared for Daughter, with Grandmother
acting only as a "secondary babysitter." Father never proposed that it was in Daughter’s best interest
that custody be granted to him, although the court did adopt his proposed factual findings that "
[d]uring visitation, [Father] provides [Daughter] with a stable two-parent household," and that
Daughter "has a loving relationship" with Father.

The record is similarly unclear as to whether it supports a finding that there are additional factors
present in this case justifying some intrusion into Father’s rights. Again, the court adopted various of
Mother’s proposed findings of fact, which suggest that Father avoided paternity testing, and only
consented to the test and began participating in Daughter’s life at the urging of his wife. Mother
proposed that Father, after finally determining that he was Daughter’s father, "had varying degrees of
visitation with his daughter. He has participated in some visits — but not participated in a substantial
amount of visitation that was available to him." The GAL, in recommending that primary physical
custody be given to Grandmother, stated that Father "sees [Daughter] as damaged and in need of
repair," and that they have "a relationship which is tenuous and unhealthy at best."

Father’s proposed findings, also adopted by the court, paint a picture of a man who was always
willing to participate in Daughter’s life, had he simply been given proper notification about his
relationship to her. For example, Father states that "[i]t is unclear whether a scheduled 1995 paternity
test was not conducted because [Father] did not receive the notice or because the testing location was

changed at the last moment." Other of his adopted findings state that between August 2002 and 2004,
Mother and Grandmother contacted him very infrequently and did not notify him of any school

meetings, school activities, extra-curricular activities, selection of doctors, doctors’ names or doctors’
appointments. As seen in Brauch, a proper determination on this issue is critical to resolving this case.

Because of the contradictory nature of the trial court’s findings of fact, | am unable to complete an
analysis of whether awarding custody to Grandmother would have been unconstitutional.
Accordingly, to the extent that the findings of fact are inconsistent with each other and with the terms
of the final decree, I vacate it and remand for the trial court to determine: (1) whether Grandmother’s
parent-child relationship with Daughter is so significant that a change in custody would emotionally
harm Daughter, see Diana P., 120 N.H. at 797; and (2) whether Father significantly failed to accept his
parental responsibilities, thus leaving Daughter to be raised by Grandmother as well as Mother, see
Stanley D., 124 N.H. at 142-43; Brauch, 121 N.H. at 570; Quilloin, 434 U.S. at 249-50.

Affirmed in part; vacated in part; and remanded.

NADEAU and GALWAY, JJ., concurred in part and dissented in part; DALIANIS and DUGGAN, JJ.,
dissented.

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, 530 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.

DALIANIS and DUGGAN, JJ., dissenting. Because we agree with the superior court that RSA
458:17, VI (2004) (repealed Oct. 1, 2005) is unconstitutional on its face in the wake of Troxel v.
Granville, 530 U.S. 57 (2000) (plurality opinion), we respectfully dissent.

As the chief justice notes in his opinion, Troxel recognized that "the Due Process Clause of the
Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the
care, custody and control of their children." Troxel, 530 U.S. at 66. We have long recognized a
corollary right under Part I, Article 2 of the New Hampshire Constitution. See In the Matter of Nelson
& Horsley, 149 N.H. 545, 547 (2003). In Troxel, the United States Supreme Court examined a
Washington non-parental visitation statute and concluded that, as applied to the parent in that case, it
unconstitutionally infringed upon that fundamental parental right. The court explained:

[T]he Washington statute places the best-interest determination solely in the
hands of the judge. Should the judge disagree with the parent’s estimation of
the child’s best interests, the judge’s view necessarily prevails. Thus, in
practical effect... a court can disregard and overturn any decision by a fit
custodial parent concerning visitation . . . based solely on the judge’s
determination of the child’s best interests.

Troxel, 530 U.S. at 67. The court concluded that a State will normally have no reason to interfere with
a parent’s ability to make the best child-rearing decisions where that parent is deemed fit. Id. at 68-69.

We have recognized a meaningful difference between awards of visitation and awards of custody, and
have noted that granting visitation is a far lesser intrusion into parental rights than an award of
custody. In the Matter of Kosek & Kosek, 151 N.H. 722, 725 (2005); see Nelson, 149 N.H. at 548;
Roberts v. Ward, 126 N.H. 388, 393 (1985). Thus, we consider it logical to extend the rationale
underlying Troxel, which considered the constitutionality of a non-parental visitation statute, to our
examination of RSA 458:17, VI, which permits an award of non-parental physical custody.

While RSA 458:17, VI is not as "breathtakingly broad" as the statute examined in Troxel, see Troxel,
530 U.S. at 67, we believe that it is, nonetheless, unconstitutionally broad under the United States and
New Hampshire Constitutions. As written, RSA 458:17, VI permits a court to award custody to a
stepparent or grandparent "if the court determines that such an award is in the best interests of the
child." RSA 458:17, VI. Much like the Washington non-parental visitation statute, it places the "best
interest" determination solely in the hands of the court, regardless of a biological parent’s fitness. We
disagree with the chief justice’s conclusion that RSA 458:17, II (2004) (repealed Oct. 1, 2005), which
presumes that joint legal custody is in the best interest of minor children, and RSA 458:17-d (2004)
(repealed Oct. 1, 2005), which accords deference to a parent’s wishes when determining grandparent
visitation rights, somehow cure this defect regarding physical custody.

We do not contest the court’s assertion that the State has a competing interest in the welfare of
children within its jurisdiction as embodied by its parens patriae power. We are unconvinced,
however, that, under the "certain circumstances" identified by the chief justice, it qualifies as a
compelling state interest that acts as a de facto counterweight to a fit biological parent’s fundamental
liberty interest in the care, custody or control of his or her children. We have noted that parental rights
are "not absolute, but are subordinate to the State’s parens patriae power, and must yield to the welfare
of the child." In the Matter of Berg & Berg, 152 N.H. , _ (decided Oct. 18, 2005). However, we
are typically careful to permit the exercise of that power only in cases contemplating lesser intrusions
into a parent’s fundamental rights. See id. at___ (superior court has authority to determine whether it is
in the best interests of a child involved in a custody dispute to have confidential and privileged
therapy records revealed to his or her parents); Roberts, 126 N.H. at 392 (superior court may utilize its
parens patriae power to permit grandparental visitation when it is in the best interests of the child and
RSA 458:17, VI does not apply). But see Bodwell v. Brooks, 141 N.H. 508 (1996) (in custody
proceeding between unwed natural parents, superior court may use its parens patriae power to decide
whether best interests of the child warrants intervention of stepparent as appropriate party).

As we noted previously, we have been careful to distinguish such lesser intrusions into fundamental
parental rights from an award of custody, and we believe that the court now extends the State’s parens
patriae power in a way that erases that distinction. There is a presumption that fit parents act in the
best interests of their children. Nelson, 149 N.H. at 547; Troxel, 530 U.S. at 68-69. We note that this
presumption of fitness is not irrefutable, and that there exists in New Hampshire a statutory
framework enabling the State to intervene in the family milieu and reassign custody when a child’s
welfare is at stake. See generally RSA ch. 169-C (2002 & Supp. 2005) (Child Protection Act); RSA
ch. 169-D (2002 & Supp. 2005) (Children In Need of Services); RSA ch. 170-C (2002 & Supp. 2005)
(Termination of Parental Rights). By reading RSA 458:17, VI to justify intrusion into an otherwise fit
parent’s custodial rights as an exercise of the State’s parens patriae power to "protect the best interest
of the child," the court wrests the presumed ability to act in the best interests of a child from a fit

parent and shifts it to the trial judge. This is the very sort of interference deemed to be an
unconstitutional intrusion into fundamental parental rights by Troxel. Troxel, 530 U.S. at 67-68.

The court concludes that RSA 458:17, VI is neither unduly restrictive nor unreasonable, and that it is
sufficiently narrowly tailored so as to pass muster under a strict scrutiny analysis. In reaching this
conclusion, the chief justice holds that, in determining the best interest of the child under RSA
458:17, VI, a court must give special consideration to the wishes of a child’s parents. He further holds
that an intervening party must show, by clear and convincing evidence, that: (1) a custody award is in
the child’s best interest because of a significant psychological parent-child relationship; (2) that the
family unit is 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."

We find no such requirements in the language of RSA 458:17, VI or RSA 458:17 as a whole. It is
axiomatic that, when the language of a statute is plain and ambiguous, we will not consider what the
legislature might have said or add language that the legislature did not see fit to incorporate in the
statute. See, e.g., Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005). Though the
chief justice believes that the language of RSA 458:17, VI is clear and unambiguous, we believe that
he ascribes additional narrowing language to RSA 458:17 that the legislature did not see fit to
incorporate.

Moreover, a test requiring courts to give "special consideration" to the wishes of a child’s parents is
inherently subjective and unworkable. Such a test will result in trial judges micromanaging custody
determinations using criteria that necessarily reflect their personal predilections and biases. If applied
on a case-by-case basis, the "special consideration" test proposed by the chief justice will create a
morass of inconsistency in the State’s trial courts.

The chief justice notes that a child may be harmed if removed from a stepparent or grandparent with
whom the child has established a significant parent-child relationship "because of the dissolution of
the nuclear family." This may undoubtedly be true in some cases. However, this recognition does little
to remedy the fact that, as written, RSA 458:17, VI places the right to determine a child’s "best
interest" solely in the hands of the court, regardless of a biological parent’s fitness. For the reasons
outlined above, we believe this to be an unconstitutional infringement upon a fit biological parent’s
fundamental rights. We would leave it to the legislature to prescribe a remedy for the problem
introduced by the chief justice.

We conclude by reiterating the majority position in Nelson, where we stated:

[The] application of the best interests of the child standard in a custody
dispute between a natural . . . parent and a nonparent would offend due
process if the parent’s conduct towards the child has not been inconsistent
with the parent’s constitutionally protected status.

Nelson, 149 N.H. at 548. Addressing the specific facts of that case, we held that it would violate a fit
natural parent’s State constitutional rights to grant custodial rights to an unrelated third person over
the express objection of that parent. Id. at 549. We recognized, however, that our decision in Bodwell,
141 N.H. at 514, carved out a limited exception to this rule for stepparents. Nelson, 149 N.H. at 549;
see also Stanley D. v. Deborah D., 124 N.H. 138, 143 (1983). Consistent with our reasoning above,
we would overrule Bodwell and Stanley D. in light of the United States Supreme Court’s decision in
Troxel.

For these reasons, we would affirm the final decree of the superior court. Accordingly, we respectfully
dissent.