Family Law

Laura D. Devine
Civil Litigation Attorney
Boyle Shaughnessy Law
Manchester, NH

No. 2018-0013

May 31, 2019



  • What circumstances allow a trial court to rescind a paternity affidavit and whether the trial court can grant primary custodial responsibilities to a party in an emergency motion

The trial court granted the emergency motion of the petitioner, Haley St. Pierre, to relocate with her child to Florida.

The Court set forth the relevant facts as follows. In August 2012, the petitioner met and started a romantic relationship with the respondent. Later that year, they moved in together. Six months later, the petitioner traveled out of state and had sexual relations with another man. Shortly thereafter, she discovered that she was pregnant. She notified the respondent that he was the father and notified the other man that he was not. The respondent later learned of the sexual relations with the other man and asked if that man could be the father. The petitioner assured him the child was his. On October 31, 2013, the child was born and the parties completed an affidavit of paternity at the hospital. Soon after, the parties married. They divorced the following year. Shortly thereafter, the petitioner re-started a romantic relationship with the other man. She then filed a petition to change the paternity affidavit and custody order. Specifically, she claimed that the child was not the respondent’s, but actually the child of the other man. In March 2017, after a hearing which included testimony by the parties and the other man, the court noted that in challenging paternity beyond the 60 days from the filing of the paternity affidavit, the challenge must be made on the basis of fraud or material mistake of fact. The court noted that here there either was a material mistake of fact or fraud in executing the affidavit. The court found that the other man was the biological father and rescinded the paternity affidavit and amended the child’s birth certificate to correctly reflect this fact.

The trial court noted the biological parents because they were an intact couple, and declined to change the child’s last name. The trial court ruled that the respondent would retain his status as stepparent and not lose his ability to ask for parenting rights and responsibilities. A strong bond was noted between the respondent and the child and it was concluded that parenting time with the respondent was in the child’s best interests. The trial court denied the petitioner’s request to relocate the child to Florida.

Later, the petitioner filed a second motion to relocate the child to Florida on an emergency basis and cited changed circumstances. Specifically, that the petitioner married the biological father (instead of merely being engaged), and that the respondent was supervising the child when she fell into a campfire and suffered severe second-degree burns, and he failed to obtain prompt medical treatment for her. The trial court allowed the emergency motion to relocate the child and this appeal followed.

On Appeal, the Court reviewed the trial court order so long as the record demonstrates an objective basis sufficient to sustain the court’s judgment. The Court noted that the trial court has broad and flexible equitable powers.

The Court concluded the record supports the trial court’s rescission of the paternity affidavit based on its determination that there was a material mistake of fact made by the parties in executing the paternity affidavit. Further, the Court concluded that there was sufficient basis in the record to support the trial court’s order granting primary custodial responsibilities to the petitioner.


Jay Markell, Family Legal, Concord, for the petitioner. R. Peter Decato, Decato Law Office, Lebanon, for the respondent.