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In re Nelson6/6/2003
urt is considered to have no independent equity jurisdiction over the custody and support of children," Trow v. Trow, 95 N.H. 529, 529 (1949). As suggested by distinctions drawn in Roberts, 126 N.H. at 390-91, and Ellsworth, 140 N.H. at 836-37, however, such statements are broader than the actual holdings on which they are based.
In Leclerc v. Leclerc, 85 N.H. 121, 121 (1931), for instance, the petitioner sought to obtain custody of her deceased brother's children by bringing forward the divorce proceedings between her brother and the children's mother and modifying the custody order made therein. After noting that "divorce proceedings abate upon the death of either of the parties," id. at 122, we held:
The provisions of [what is now RSA 491:7], that the superior court shall take cognizance "of petitions for divorce , nullity of marriage, alimony, custody of children and allowance to wife from husband's property for support of herself and children" merely impose upon the superior court the duty of administering the divorce statutes and confer upon it no independent jurisdiction over the custody of children.
Id. at 123. Thus, Leclerc considered only a portion of the jurisdiction statutorily conferred upon the superior court, yet went on to state broadly that " n the absence of pending or possible divorce proceedings," the superior court lacked jurisdiction to appoint a custodian of minors. Id. (citations omitted). Leclerc then explained that "the right of custody is a legal incident of guardianship, and the appointment of guardians is a matter within the exclusive jurisdiction of the probate court." Id.
Leclerc's holding can be limited, then, to situations in which there are no divorce proceedings and, given the petitioner's lack of parental relationship to the child, a guardianship proceeding is necessary. See, e.g., Leclerc, 85 N.H. at 121; McLaughlin, 139 N.H. at 263 (petition by maternal grandparents). Where guardianship issues have not been present, however, we have noted that the superior court's jurisdiction is broader than this line of cases would suggest. See Ellsworth, 140 N.H. at 837.
RSA 491:7 provides, in part, that " he superior court shall take cognizance . . . of suits in equity under RSA 498:1." RSA 498:1, in turn, provides:
The superior court shall have the powers of a court of equity in . . . [certain specified cases] and in all other cases cognizable in a court of equity, except that the court of probate shall have exclusive jurisdiction over equitable matters arising under its subject matter jurisdiction authority in RSA 547, RSA 547-C and RSA 552:7.
Because I believe that the probate court lacks jurisdiction in this case, I would conclude that the superior court has equitable jurisdiction under this section.
In Roberts, 126 N.H. at 391-92, we recognized the equitable power of the superior court to adjudicate a request for grandparents' visitation outside the divorce context provided for by statute at that time, see RSA 458:17, VI (1983) (amended 1989, 1991); see also RSA 458:17-d (Supp. 2002) (enacted subsequent to Roberts). In determining that the superior court had jurisdiction, we stated:
One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachments between them and adults outside of their immediate families. Stepparents, foster parents, grandparents and other caretakers often form close bonds and, in effect, become psychological parents to children whose nuclear families are not intact.
It would be shortsighted indeed, for this court not to recognize the realities and complexitie
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