On March 5, 2009 the New Hampshire Supreme Court released its opinion on In the Matter of Jamie Huff and Lawrence Huff. This is an important decision, in that it defines parental rights and plainly rules that the family courts do not have jurisdiction to award visitation to an unrelated third party over the objection of a fit parent. It is important to note that although the court may not award an unrelated third party visitation, New Hampshire does have statutory authority for awarding grandparents and step-parents visitation with children.
The facts of the case are as follows: Jamie and Lawrence married and in July of 2006 their son was born. During subsequent divorce proceedings, Lawrence was sentenced to three to six years in State Prison. At the final hearing Lawrence requested one full weekend of parenting time a month with his son even though the prison visiting hours were only on Saturdays for a few hours. Lawrence planned to have one of two close friends facilitate visitation and have his son spend the rest of the weekend with his two other children. In other words, Lawrence wanted to essentially delegate his remaining parenting time to Kristen or Cheryl. The trial court adopted Lawrence’s proposed parenting plan, over Jamie’s objection.
Jamie appealed the decision to the NH Supreme Court arguing that the award of parenting time to a third party over her objection infringes on her fundamental right to parent her son. The NH Supreme Court first noted that the trial court did not expressly grant visitation to a third party but they granted visitation to an incarcerated father who then delegated his visitation to a third party. The court also examined the effect incarceration has upon parental abilities and whether or not this type of handing over visitation to a third party is equivalent to granting that third party visitation outright.
Ultimately the Court held that the incarcerated parent may not designate a third-party caregiver, over the objection of the other parent, absent a finding that the non-incarcerated parent is unfit. Where both parents are fit, the trial court may only award the incarcerated parent that visitation time which he can actually exercise. In this case, neither Jamie nor Lawrence has been declared unfit. Thus, the trial court’s authority is limited to awarding visitation to the incarcerated father that he can actually use to visit with the child. Time allocated to Lawrence beyond that, which is then delegated to a third party, is equivalent to awarding an unrelated third party visitation rights.
Crusco Law Office Law Clerk Marisa L. Ulloa contributed to this post.