Eric Wind Attorney at NH Public Utilities Commission in Concord.

Supreme Court At-a-Glance Contributor Eric Wind, Attorney at the NH Public Utilities Commission in Concord, N.H.

No. 2020-0125

October 19, 2021

Reversed and remanded.


  • Whether the trial court erred in awarding custody and school placement of a father’s biological child with the father’s ex-wife (and the child’s stepmother)?


Father and mother had a child in 2005.  Natural mother died in 2008.  Father and Stepmother began a romantic relationship in 2010, married in 2013, had 3 natural children together and separated in 2016.  Stepmother had raised the father’s first child as her own but had not adopted the father’s first child.  Father argued that the trial court erred in awarding custody of the child to stepmother based solely upon a best interests standard when there was no finding that Father was unfit.  The Court held that a best interests of the child standard could not be constitutionally applied to determinations of parental rights and responsibilities between a stepparent and a fit natural or adoptive parent.  Father was never found unfit under RSA 169-C or RSA 170-c and stepmother was neither the child’s natural nor adoptive parent.  The Court assumed without deciding that the Broderick test was the correct standard to apply.  Under the Broderick test, an award to a step parent or grandparent over the objection of a fit natural or adoptive parent is not unreasonably or unduly restrictive on parental rights only if the petitioning party can show by clear and convincing evidence that (1) 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 in to 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 step parent or grandparent.  The Court found that the evidence was sufficient as a matter of law to satisfy all factors of the Broderick test.  The Court found that the trial court erred in applying solely a best interest of the child standard to determine the parental rights and responsibilities as between Father and stepmother with regard to the child.


Alli Morris, the petitioner, filed no brief.  Bedard & Bobrow, of Eliot, Maine (David J. Bobrow on the brief) for the respondent.