N.H. Supreme Court holds nonbiological parent may seek parental rights and responsibilities

The New Hampshire Supreme Court released the opinion for In the Matter of J.B. and J.G. on August 6, 2008 holding that a man, who is not the biological father of a child, has standing to seek parental rights and responsibilities under the New Hampshire statute.

The facts of the case are as follows: The respondent, J.G., gave birth to a child, A.B., in 2001. The petitioner, J.B., was listed as the father on the birth certificate. In addition both parties executed an Affidavit of Paternity at the time of the child’s birth which stated that J.B. was the father. While the parties had never married and did not live together, J.B. had consistently maintained contact with the A.B. and in 2004 J.G. sought and obtained an order of child support against J.B.

After a disagreement about the A.B.’s schooling, J.B. filed a parenting petition in the family division to establish his parental rights and responsibilities. In response, J.G. alleged that J.B. was not the A.B.’s father. The trial court ordered a paternity test which showed that J.B. was not A.B.’s biological father.

Based on the test results J.G. moved to dismiss J.B.’s petition because he was not the biological father and therefore did not have rights under RSA 461-A and that granting him parental rights would violate her constitutional right as a natural parent. The trial court granted her motion to dismiss and then later reversed which prompted J.G. to file this appeal of that decision.

Therefore, the meat of the opinion is the question of whether J.B. may maintain a parenting petition under the parental rights and responsibilities act, when he is neither a stepparent, biological parent, or grandparent to the child? The court examines 461-A:1, IV which states that parental rights and responsibilities are defined as: “all rights and responsibilities parents have concerning their child”. However, it does not specifically define the term “parent”. The court determined that while the DNA testing proves that J.B. is not the biological father that in itself is not fatal to his request for parental rights under the statute so long as he alleges sufficient facts to establish his status as a parent by other means.

The court holds that J.B. meets the threshold to establish himself as a parent for two reasons.

1)      In order to impose an obligation of child support there needs to be an establishment of paternity. Therefore, when J.G. sought and received a child support order she acknowledged that J.B was A.B.’s parent.

2)      Also, according to RSA 5-C:24 paternity may be established when an affidavit is filed with the clerk of the town where the birth occurred. This has a legal effect of establishing paternity without requiring further action.

Finally, the court holds that there is no unconstitutional intrusion of J.G.’s right to raise and care for A.B. because J.B. is also A.B.’s parent and enjoys rights equal to J.G.’s.

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.

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Kathe - December 3, 2010 8:36 AM

What if neither #1 or 2 applies. No proof of parenting can be established. No child support has ever been imposed. Birth certificate originally had no name listed as father,has been updated to name a biological father since paternity test results. Has any case ever come up in NH court where a non-biological parents recieves rights to a child when marriage or adoption never took place? Looking for advice on who to turn to with this very upsetting family court case. Can not afford legal representation.

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