In Re Miller

Supreme Court of New Hampshire
161 N.H. 630, 20 A.3d 854 (2011)

ELI5:

Rule of Law:

A trial court, when determining child custody, must explicitly consider a parent's ability to foster a positive relationship and frequent contact with the other parent, as well as their support for the child's relationship with the other parent, particularly when a parent has made sustained, unfounded allegations of abuse that interfere with visitation.

Facts:

James J. Miller (Miller) and Janet S. Todd (Todd) met in 1999 and had two daughters, Laurel (born 2002) and Lindsay (born 2003), but never married.
In late 2003, Miller and Todd's relationship broke down, and Miller obtained an ex parte order in Michigan granting him sole temporary legal and physical custody of his daughters.
In January 2004, after being served with the Michigan custody order, Todd's mother alleged she saw Miller molest Laurel in October 2003; Todd then took the children for a 'well baby check' at her attorney's advice.
In February 2004, a report alleging abuse was filed with Michigan Child Protective Services, which investigated the claims, including pelvic examinations of both children, and found no indications of sexual abuse, closing the investigation.
Between June 2005 and November 2005, multiple allegations of sexual abuse by Miller were made by Todd, her father, and a friend, leading to police and New Hampshire Division for Children, Youth, and Families (DCYF) investigations, all of which were closed as unfounded, with DCYF suggesting 'coaching' of Laurel.
In July 2006, Miller and Todd agreed to a parenting/custody assessment by psychologist Dr. Peggie Ward to investigate abuse allegations, parental alienation, and 'scripting issues'.
In December 2007, Dr. Ward issued a report concluding that Todd unintentionally but clearly caused Laurel to believe she had been sexually abused by Miller, noting Todd's 'serious impairment in her ability to accurately process information' and predisposition to 'misunderstanding and misconstruing intentions'.
At the time of Dr. Ward's report, Miller had not seen his children outside Dr. Ward's office since September 2005, leading Dr. Ward to recommend therapeutic reunification.

Procedural Posture:

On December 23, 2003, Miller obtained an ex parte order in the circuit court in Michigan granting him sole temporary legal and physical custody of his daughters.
In January 2004, Miller filed a petition in Rockingham County Superior Court in New Hampshire seeking enforcement of the Michigan custody decree.
On January 26, 2004, the Rockingham County Superior Court ordered Todd to bring the children to Miller for the purpose of transferring custody to him.
In November 2004, the Rockingham County Superior Court issued a temporary decree awarding the parties joint legal custody, but questioned the credibility of both parties, particularly Todd's sexual abuse allegations.
In September 2005, following Todd's ex parte petition alleging abuse, the court issued an order prohibiting Miller from having any contact with the children until allegations were deemed unfounded.
On January 30, 2006, DCYF initially determined Miller was responsible for abuse and stated his name would be entered on its central registry.
On February 24, 2006, DCYF rescinded its initial determination after new evidence, closing the assessment as unfounded and noting concerns that Laurel had been 'coached'.
On January 7, 2008, the trial court (Portsmouth Family Division) issued an order addressing Dr. Ward’s evaluation and recommendations, ordering immediate therapeutic reunification and noting that Todd's pace for reunification was 'far too slow'.
On March 6, 2008, following a hearing, the trial court issued an order stating that its hope for progress in reunification was 'misguided' and ordered new reunification counseling, threatening to modify primary residence if Todd's insistence on abuse continued.
On May 15, 2008, following a hearing, the court ordered the parties to begin reunification therapy near Miller's home in New York.
On August 25, 2008, following a hearing, the court recognized progress but noted continued arguments about the next steps, setting a schedule for Miller's reunification therapy and appointing a guardian ad litem.
In October 2008, following Miller's ex parte motion for modification of residential responsibility, the court set forth a specific visitation schedule, concluding that Todd was not invested in the reunification process and Miller was unreasonably insistent.
In March 2009, following a guardian ad litem's ex parte motion regarding new disclosures of inappropriate touching, the court ordered DCYF investigation (which closed as unfounded) but did not suspend Miller's parenting time.
In April 2009, following the guardian ad litem's report of new disclosures by Laurel to her teacher, Miller filed a motion to modify custody, which the court denied.
On September 8, 2009, following a three-day hearing, the Master issued recommendations regarding custody, which were approved by the trial court, finding the children’s best interests required them to continue living primarily with their mother in New Hampshire.

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Issue:

Did the trial court err by not explicitly considering a parent's ability to foster a positive relationship and support contact with the other parent, as required by RSA 461-A:6, I(e)-(g), when awarding primary residential responsibility, especially in circumstances involving sustained, unfounded allegations of sexual abuse and interference with visitation?

Opinions:

Majority - Hicks, J.

Yes, the trial court erred because it failed to clearly indicate whether it considered the statutory factors related to each parent's ability to foster a positive relationship and support contact with the other parent, especially given the extensive evidence of Todd's unfounded allegations of sexual abuse and interference with Miller's relationship with the children. The court emphasized that its overriding concern in custody matters is the "best interest of the child," which is furthered by nurturing a child's relationship with both parents. RSA 461-A:6, I(e)-(g) explicitly requires consideration of a parent's ability and disposition to foster a positive relationship and frequent contact with the other parent. The trial court's order did not cite this statute or clearly apply its factors to the specific facts. The record extensively documented Todd's "unfounded belief" that Miller sexually abused the children, which significantly interfered with Miller's visitation, deprived him of a relationship with his children for years, and subjected the children to repeated invasive examinations and interviews—actions not in their best interests. This conduct casts "serious doubt upon the fitness of the offending party to be the custodial parent." The court referenced Dr. Ward's "thorough and extraordinarily perceptive" report, which concluded that Todd unintentionally caused Laurel to believe she was abused and influenced the children with her negative beliefs due to her "liability of distortion of information." The trial court awarded custody to Todd primarily because the children had lived with her for most of their lives, a situation that arose largely due to the unfounded allegations that denied Miller contact. The Supreme Court stated that allowing a parent to benefit from such misbehavior sends "the unacceptable message that others might, with impunity, engage in similar misconduct," thereby nullifying the principle that a child's best interests are furthered by a healthy relationship with both parents. Therefore, the award of parental rights and responsibilities must be vacated and remanded for reconsideration in light of these statutory factors and the court's opinion.

Analysis:

This case reinforces the critical importance of statutory factors in child custody determinations, particularly those relating to parental cooperation and fostering a relationship with the other parent. It establishes that a parent's persistent, unsubstantiated allegations of abuse and obstruction of visitation can be considered "inimical to the child's welfare" and a basis for challenging custody. The ruling sends a strong message that courts should not inadvertently reward a parent for actions that alienate children from the other parent, even if the children have developed a primary residence as a result of that alienation. This case provides guidance for lower courts in weighing allegations of abuse against the child's need for both parents, especially when professional evaluations suggest parental distortion or influence.

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