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In re Nelson6/6/2003
s of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental relationship which has formed in the absence of a nuclear family. . . .
Further, it would be incongruous to deny courts the ability even to consider the effects upon children of denial of visitation rights under these circumstances, when we have made the best interests of the child the beacon by which to guide all custody matters. Rather, the better view is that the superior court, as an instrumentality of the State, may use its parens patriae power to decide whether the welfare of the child warrants court-ordered visitation with grandparents to whom close personal attachments have been made.
Roberts, 126 N.H. at 392 (citations omitted). For similar reasons, I conclude that the superior court has equitable jurisdiction to adjudicate a claim for custody by a person alleging an in loco parentis relationship with a child. Cf. E.N.O. v. L.M.M., 711 N.E.2d 886, 889-90 (Mass.) (finding general equitable jurisdiction in probate court to award visitation to one in parent-like relationship with child), cert. denied, 528 U.S. 1005 (1999); In re Custody of H.S.H.-K., 533 N.W.2d at 435 (equitable jurisdiction in circuit court). Accordingly, I would answer the first transferred question in the affirmative.
In sum, the two adults in this case have their own reasons for not being married. That fact alone, however, should not prohibit the petitioner from seeking custodial rights based upon the children's best interests. A petitioner who meets the Wisconsin test should not be deprived of the opportunity to obtain custody of or visitation with the child merely because he was not married to the natural parent during the time the relationship was created. The natural parent is protected because the facts necessary to meet the Wisconsin test are subject to evidentiary proof and determination by the superior court.
Obviously, the trial court, in making a determination whether custodial rights should be accorded the petitioner, will consider the constitutional rights of the natural parent, but should also be able to take into account the nature of the parental relationships and the interest of the child.
Accordingly, I would answer the first transferred question in the affirmative and the second transferred question in the negative and remand to the superior court for further proceedings. By denying the petitioner the opportunity to present evidence to the superior court that he has met the Wisconsin test and established a parental relationship with the child, merely because he does not share blood with the child or a marriage certificate with the mother, the majority opinion ignores the realities of the twenty-first century.
For these reasons, respectfully, I dissent.
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