One issue that the New Hampshire Supreme Court has struggled with is whether a family court has the ability to award parental rights to a person who is not the biological nor adoptive parent of the child. On one hand, the Supreme Court has recognized that the biological or adoptive parent has a constitutional right to parent their child, and that right cannot be lightly assigned to a third party. On the other hand, there are many occasions where the stepparent has assumed the role of the parent and the child identifies the stepparent as their mother or father. Suddenly severing that relationship could be extremely harmful to the child.
In late 2021, the Supreme Court clarified its prior holdings in the case of In re: Morris to state when—and if—parental rights can be assigned to a stepparent. In Morris, the trial court found that a stepmother had raised the child as if he were her son following the death of the child’s biological mother. The court also found that it would not be in the child’s best interest for him to live primarily with the father and granted the stepmother parental rights over the child.
On appeal, the Supreme Court reversed the trial court’s decision. In its opinion, the Supreme Court clarified that, where there is an otherwise fit natural or adoptive parent, a trial court cannot award parental rights to a stepparent based solely on what is in the child’s best interest. Moreover, “parental unfitness” generally requires a showing that the natural or adoptive parent has been guilty of child abuse or neglect, or has had their parental rights terminated, as defined in New Hampshire statutes.
The Supreme Court nevertheless continued to struggle with a definition of what standard to apply if an award of parental rights to a stepparent is contemplated and the natural or adoptive parent is otherwise fit. The test that was mentioned in Morris, called the “Broderick test,” requires that, before any parental rights can be awarded to a stepparent or grandparent where there is an otherwise fit natural or adoptive parent, the court must find:
the custody award would specifically be in the child’s best interest because of a significant psychological parent-child relationship; (2) . . . 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[; and (4)] the custody award [is] 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.
With today’s blended families, it is not uncommon for a stepparent to form a close bond with a stepchild. If the parents’ relationship ends, the question of whether the stepparent can obtain parental rights over the stepchild requires careful analysis and preparation so that such an award can be both obtained at trial and defended on appeal.