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In the Matter of Matthew Bordalo and Meagan Carter

October 30, 2012

IN THE MATTER OF MATTHEW BORDALO AND MEAGAN CARTER


The opinion of the court was delivered by: Hicks, J.

6th Circuit Court - Concord Family Division

Argued: May 3, 2012

The respondent, Meagan Carter (Mother), appeals a decision of the Concord Family Division (Gordon, J.) awarding primary parenting responsibility of her minor child (Daughter) jointly to the petitioner, Matthew Bordalo (Father), and the intervenors, John and Karen Bordalo, the Father's parents. We reverse and remand.

I

The following facts are drawn from the trial court's final order. Father and Mother had a brief relationship that resulted in Daughter's birth in 2006. Mother married Richard Carter in October 2008 and had a child born of their marriage. Mother and Father entered into a parenting agreement in July 2009 whereby Daughter would live with Mother during the week and with Father from Friday to Monday. At that time, Mother lived in Kittery, Maine, and Father lived with his parents, the Bordalos, in Unity, New Hampshire.

Father filed a petition for contempt against Mother in November 2009, asserting that she had moved with Daughter to a more remote location in Maine, making it impossible to exercise his parenting time according to the agreement. The court found Mother in contempt, and ordered the parties to find a suitable location between their homes to exchange Daughter. Father subsequently filed another petition for contempt, this time asserting that Mother had prevented him from seeing Daughter at all. In response, the court again made a contempt finding and ordered the parties to exchange Daughter at each other's home.

In March 2010, Mother and Father each moved to modify the parenting plan, and a guardian ad litem (GAL) was appointed. By August 2010, Mother had moved back to Kittery and the court had adjusted the plan to afford Father time with Daughter on alternating weekends to reduce the "opportunity for conflict" arising out of the previous plan. Sometime after that order, Richard Carter was arrested in a domestic violence incident and the Maine Department of Social Services identified concerns it had about Daughter's well-being, particularly with respect to exposure to her maternal grandmother. In December 2010, the court ordered Daughter's contact with her maternal grandmother to be supervised and authorized the GAL to make certain interim decisions in Daughter's interests.

In March 2011, prior to the final hearing, the Bordalos were permitted to intervene and requested parental rights over Daughter, asserting that it would be in her best interests to reside with them "to prevent significant psychological harm." A final hearing took place in April 2011.

At the hearing, the GAL opined that Daughter was being harmed in

Mother's care and recommended that she reside with the Bordalos. She noted that Daughter is a "troubled child" who has exhibited violent behaviors toward animals, her younger half-sister, and others in the family. The GAL also opined that Mother is in a poor position to support Daughter in light of Daughter's behavioral problems. The court noted in its June 2011 final order that Richard Carter had been arrested once for endangering the welfare of Daughter and another time for domestic violence against Mother; the record does not indicate the legal resolution of those arrests. The court also noted that the "authorities" had expressed concern that Daughter's emotional and mental health had been harmed due to the influence of the maternal grandmother, violent incidents in the home, and a "volatile" relationship with Mr. Carter. The GAL also expressed concern that Mother lacks "understanding of the emotional boundaries which should exist between a parent and a child." At the same time, the court noted that Mother "does, in fact, have the ability to be a competent parent for [Daughter]; in her care, [Daughter] has been well fed, has been provided for and has developed intellectually.

The court also stated that Father is "not recognized as a particularly competent parent." Both the GAL and Daughter's therapist believed that he lacked parenting skills due to a "developmental disability or information processing deficit that makes it hard for him to understand his responsibilities as a parent." Although a "devoted" father, he was not actively engaged in Daughter's counseling, therapy, or vocational rehabilitation. Father admitted at trial that he would need help from his parents to care for Daughter permanently. The GAL and Daughter's therapist also believed that Karen Bordalo provided the most "safe, sound, stable and nurturing" environment for Daughter.

The trial court awarded primary parenting and residential responsibility jointly to Father and the Bordalos, and awarded weekend parenting time to Mother. Under the new parenting plan, Father and the Bordalos were to "share in the responsibility for making major decisions" and consult with Mother "when feasible." Mother was expressly prohibited from "interfer[ing] with the authority of the Bordalos in making the final decision." After a motion to reconsider was denied, Mother appealed.

II

The trial court has wide discretion in matters involving parental rights and responsibilities under RSA 461-A:6 (Supp. 2011), and we will not overturn its determination except when there has been an unsustainable exercise of discretion. In the Matter of R.A. & J.M., 153 N.H. 82, 93 (2005) (plurality opinion); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). However, we apply a de novo standard of review both to the constitutionality of a statute, Appeal of Blizzard, ...


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