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In re Nelson6/6/2003
Hillsborough-southern judicial district
Argued: January 15, 2003
This case comes before us on an interlocutory transfer without ruling from the Superior Court (Hampsey, J.). See Sup. Ct. R. 9.
The record contains the following facts. The petitioner, Douglas Hoyt Nelson, and the respondent, Sylvia Horsley, began dating in 1992. They have one biological child, Nelson James Robert Horsley, born on June 29, 1993. The parties never married each other.
The parties ended their romantic relationship in November 1994. In December 1994, the respondent adopted a son, Kent Horsley. In December 1995, the parties' romantic relationship resumed, and the petitioner moved in with the respondent. On September 30, 2000, the respondent adopted two children from Ukraine, Emma Horsley and Molly Horsley.
Contrary to the petitioner's assertions, the respondent contends that she assumed all child care duties and was the sole financial support for the children until 1998, at which time the petitioner shared some of the child care responsibilities and allegedly provided minimal financial support for the children. The petitioner refused the respondent's repeated requests that he adopt Kent. In addition, the respondent asserts that although the petitioner traveled to Ukraine to meet Emma and Molly, he stated unequivocally that he would not adopt them.
In July 2001, the respondent asked the petitioner to move out of her residence. He did so in September of that year. Although the petitioner was at first allowed to visit with Kent, the respondent soon terminated the visitation after Kent began to exhibit what the respondent describes as increasing fear and anxiety over his visits with the petitioner.
In October, the petitioner filed a petition for custody and support of the parties' biological child, which he later amended to seek custody and support orders with respect to the respondent's adopted children.
The trial court transferred the following questions for interlocutory appeal:
A. Whether the Superior Court has subject matter jurisdiction to grant an unrelated third party custodial rights to minor children he has not adopted by virtue of the in loco parentis and psychological parent doctrines.
B. Whether an order granting custodial rights to an unrelated third party over the express objection of the minor children's sole parent violates the parent's rights under the state and federal constitutions. N.H. CONST. Pt. I Art. 2; U.S. Const[.] Amend. XIV.
We begin with the second transferred question.
We address the defendant's State Constitutional claim first, citing federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). We have recognized that
he family and the rights of parents over it are natural, essential, and inherent rights within the meaning of the New Hampshire Constitution. Because of their fundamental importance, great judicial deference has been accorded parental rights. They have been found to operate against the State, against third parties, and against the child.
Roberts v. Ward, 126 N.H. 388, 391 (1985) (citations, quotation and ellipses omitted). We have long recognized the right to raise and care for one's children as a fundamental liberty interest protected by Part I, Article 2 of the State Constitution, Petition of Kerry D., 144 N.H. 146, 149 (1999), and have extended such protection to both natural and adoptive parents. Cf. In re Bill F., 145 N.H. 267, 276 (2000). Similarly, United States Supreme Court precedent recognizes "that the Due Process Clause of the Fourteenth Amendment [to the Federal Cons
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