In re St. Pierre

172 N.H. 209

211 A.3d 1213

In the MATTER OF Haley ST. PIERRE and Adam Thatcher

No. 2018-0013

Supreme Court of New Hampshire.

Argued: March 6, 2019

Opinion Issued: May 31, 2019

Family Legal, PC, of Concord (Jay Markell on the brief and orally), for the petitioner.

Decato Law Office, of Lebanon (R. Peter Decato on the brief and orally), for the respondent.

LYNN, C.J.

I

The respondent, Adam Thatcher, appeals an order of the Circuit Court (Luneau, J.) granting the emergency motion of the petitioner, Haley St. Pierre, to relocate with her child to Florida. We affirm.

The following facts were found by the trial court, or are otherwise supported by the record and undisputed on appeal. The respondent and the petitioner met in August 2012. Later that year, they moved in together, having developed a romantic relationship. In February 2013, the petitioner traveled to New York for a weekend, where she had sexual relations with Colby Santaw, her former boyfriend. Shortly thereafter, she discovered that she was pregnant. Upon learning of the pregnancy, she informed the respondent that he was the father, and notified Santaw that he was not. The respondent, having been made aware of the petitioner's intimate relations with Santaw, asked the petitioner if Santaw could be the father. The petitioner assured the respondent that the child was his.

The child was born on October 31, 2013. An affidavit of paternity was completed by the parties at the hospital following the child's birth. Prior to signing the affidavit, the parties were informed by hospital staff that if they thought there was a chance that the respondent was not the father, they should not sign the affidavit. Section II of the affidavit, labeled "Information About the Child's Natural Father," included the following declaration above the father's signature line:

I am signing this Affidavit voluntarily and of my own free will. No force has been used upon me, and no threats or promises made to me by anyone. I understand that by signing this Affidavit I am declaring I am the natural father of the child named above ... and accept financial and legal responsibility for the child and shall be subject to the child support provisions of RSA 168-A:2. I understand that a signed Affidavit is a finding of paternity equal to a finding by a court of law.

Following completion of the affidavit by the parties, the respondent was listed as the child's father on the birth certificate.

The parties married in January 2014, and, citing irreconcilable differences, divorced in July 2015. Following the divorce, the petitioner rekindled her relationship with Santaw. On a trip together in October 2015, the petitioner and Santaw began discussing the birthdate of the child. After considering the timing of his intimate relationship with the petitioner and the child's date of birth, Santaw believed that he might be the child's father. This belief was strengthened when he compared baby pictures of the child to his own baby pictures, and noticed a resemblance. Shortly thereafter, the petitioner and Santaw agreed to conduct genetic testing. In October 2015, these test results confirmed that Santaw was the child's biological father.

Following this discovery, the petitioner, as a self-represented litigant, filed a "Petition to Change Court Order" in the trial court, requesting that the court amend the parties' parenting plan, instituted after their divorce, by removing the respondent's name from the child's birth certificate, changing the child's last name, and granting the petitioner full custody. In support of this request, the petitioner stated that the respondent was not the child's biological father, that the biological father was filing for custody rights, and that the biological parents (the petitioner and Santaw) now lived together and wished "to keep the biological nuclear family intact." Santaw intervened, requesting that the court award him parental rights as the child's biological father, issue a parenting plan describing those parental rights, and change the child's last name to "Santaw."

The respondent filed an answer and counterclaim in December 2015, in which he asserted that he stood in loco parentis to the child because he had intentionally accepted the rights and duties of natural parenthood. He further claimed that, although he was not the child's biological father, he was her "psychological parent," as he had demonstrated "a full commitment to raising and caring for [her]." He stated that it was the court's duty to "protect the interests of the child in custody determinations," and asked that the court deny the relief requested by the petitioner and Santaw, and instead award him primary physical responsibility of the child.

On March 17, 2017, following a hearing in which the parties and Santaw testified, the trial court issued an order. The court explained that, pursuant to RSA 5-C:28, III, a party challenging an affidavit of paternity beyond 60 days from its filing must do so in "a court of competent jurisdiction." See RSA 5-C:28, III (2013). The court further stated that, under federal law, the challenge must be made "on the basis of fraud, duress, or material mistake of fact." See 42 U.S.C. § 666(a)(5)(D)(iii) (2012). The trial court concluded that Santaw, as a "putative father," had standing to challenge the affidavit of paternity, and that, "[b]ased on the weight of credible evidence," he had succeeded in proving either fraud or material mistake of fact. In so finding, the court explained that in completing the affidavit of paternity, the parties had either been ignorant of the fact that the respondent was not the biological father, and therefore made a material mistake of fact, or they had deliberately disregarded the fact, in which case they had committed a fraud. The court further found that Santaw was the child's biological father, and ordered that the paternity affidavit be rescinded and the birth certificate amended to reflect this fact. The court declined to issue a parenting plan between the petitioner and Santaw so long as they "are an intact couple," and also declined to change the child's last name, explaining that the issue "was not sufficiently addressed or developed at the hearing," and that, regardless, it was a decision that the petitioner and Santaw could make together.

The trial court also ruled that, because the respondent had been married to the petitioner, he would retain his status as a stepparent and therefore would "not lose his ability to ask for parenting rights and responsibilities" over the child. The court found that the respondent has "a very strong bond with the child" that "is in the nature of a parental bond." The court further found that the respondent had raised the child since birth, and concluded that it would be in the child's best interests for the respondent to have parenting time with her.

The court next turned to the petitioner's request, made in a motion filed prior to the hearing, to relocate the child to Florida where, at that time, Santaw resided and the petitioner was planning to move. The court determined that the petitioner had not met her burden by a preponderance of the evidence to show that the relocation of the child was for a legitimate purpose. See RSA 461-A:12, V (Supp. 2016). The court noted that while the petitioner was engaged to Santaw, the two were not yet married. The court further noted that the petitioner did not yet appear to have any job prospects in Florida and that if she stayed in New Hampshire, Santaw would be able to travel from Florida to be with her. In addition, the court concluded that the respondent had met his burden to show that relocation was not in the child's best interests, as his contact with the child would be greatly affected by the move because he would no longer be able to be a regular participant in the child's life. "Based on the weight of the credible evidence," the court determined that, "at th[at] time," relocation to Florida was "not a necessary move" for the child. The court vacated the parenting plan between the respondent and the petitioner and issued a parenting schedule to be followed by the respondent.

Almost four months later, on July 6, 2017, the petitioner filed an emergency motion to suspend the respondent's parenting time. Her motion was based on the following alleged facts: (1) on July 3, 2017, the child was with the respondent when she fell into a bonfire and suffered severe burns; (2) the respondent did not notify the petitioner of the injury until almost 13 hours later; (3) the respondent did not take the child to a hospital or otherwise treat her wounds ; and (4) when the petitioner took the child to the hospital, she was treated for second degree burns. The petitioner notified the trial court that there were active investigations by the New Hampshire Division for Children, Youth and Families, the Vermont Department for Children and Families, and the Vermont State Police into the respondent's conduct. She asserted that, due to the "gross negligence" of the respondent, the trial court should award her sole parental responsibility over the child and allow the child to move to Florida.

On July 27, 2017, following a hearing, the trial court issued an adjudicatory order on the petitioner's emergency motion. The court found that the child, while under the respondent's supervision, had fallen into a campfire and sustained "serious burns on her arms, thumb and back as a result, which may require surgery." The court further found that the respondent had failed to notify the petitioner of the injuries until the following day, and that, while his friend had consulted with a doctor, who examined pictures of the child's injuries over the phone, the respondent had not taken the child to obtain medical assistance. In addition, the court found that when the petitioner took the child to the hospital the following afternoon, she was transported to a burn center in Boston, Massachusetts for...