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Best Interest Of Child Standard Does Not Apply To An Award Of Parenting Time To A Step-Parent

On Behalf of | Jan 20, 2021 | Divorce & Family

In the recent decision of Morris and Morris, the New Hampshire Supreme Court clarified when a step-parent can be awarded parenting time with a step-child.  In Morris, the father had a child for a previous relationship.  He then married the step-mother and had children with the step-mother.  The step-mother, however, never adopted the father’s child.  When the father and step-mother divorced, the Circuit Court awarded parenting time of the step-child to the step-mother finding it would be in the step-child’s best interest.

The Supreme Court reversed, stating that natural or adoptive parents have a Constitutional interest in raising and caring for their own children. That interest does not evaporate simply because the biological or adoptive parent has not been a “model parent”.

In Morris, the Circuit Court did not make a finding that the father was an unfit parent.  Therefore, it could not award any parenting rights to the step-mother using the “best interest” standard. The court further stated that New Hampshire law is unsettled as to what tests should be employed in awarding parenting time to a step-parent.

Here the Supreme Court did not specify which of the many tests could be used or should be used, but stated that the test the parties apparently agreed in the trail court known as the “Broderick Test” was the correct standard to apply.  Under the Broderick Test, an award of custody to a step parent over the objection of a fit, natural adoptive parent is improper only if the step-parent can show by clear and convincing evidence that the custody award would specifically be in the child’s best interest because a significant psychological parent/child relationship exists, the family is in the process of dissolution, there is some additional overriding factor justifying the intrusion into the parent’s rights, such as a significant failure by the opposing parent to accept parental responsibilities and the custody award is necessary for the state to enforce its compelling interest in protecting the child from emotional harm that would result if the child was forced to sever the existing psychological parent/child relationship between that step-parent and grandparent.

It remains to be seen, however, whether the “Broderick Test” will become the universal test employed in all cases involving an award of custody between a step-parent, grandparent and a natural or adoptive parent.


Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A.  Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].