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In re McAndrews

Supreme Court of New Hampshire

August 10, 2018


          Argued: May 15, 2018

          9th Circuit Court-Nashua Family Division

          Shanelaris & Schirch, PLLC, of Nashua (Catherine E. Shanelaris and Jennifer E. Warburton on the brief, and Ms. Warburton orally), for the petitioner.

          Welts, White & Fontaine, P.C., of Nashua (Israel F. Piedra on the brief and orally), for the respondent.

          DONOVAN, J.

         The petitioner, Eric McAndrews, appeals an order recommended by a Marital Master (DalPra, M.) and approved by the Circuit Court (Introcaso, J.) dismissing his petition to modify a parenting plan on inconvenient forum grounds. The parenting plan pertains to the petitioner's child with whom he shares custody with the respondent, Sachet Woodson. On appeal, the petitioner argues that the trial court erred in dismissing his petition because it conducted an improper and incomplete inconvenient forum analysis pursuant to RSA 458-A:18 (Supp. 2017), a provision of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). See generally RSA 458-A (Supp. 2017). We vacate and remand.

         The record supports the following facts. The parties are the unmarried parents of their child, who was 4 years of age at the time of the hearing that is the subject of this appeal. In January 2014, the parties negotiated and filed a joint parenting plan that was subsequently approved by the trial court. The court-approved plan provided that: (1) the parties would exercise joint decision-making responsibility for their child; (2) the child would reside with the petitioner four months in any given year; and (3) the respondent would maintain primary residential responsibility for the child. The parties further stipulated that they would revisit the question of their child's legal residence within six months of her enrollment in kindergarten. Finally, the plan permitted the respondent and child to relocate to California, but established that any "[f]urther relocations must be approved by the Court" and that New Hampshire "shall retain jurisdiction over the child for future modifications."

         Since the trial court's approval of the original parenting plan, the petitioner has continuously resided in New Hampshire and maintained significant visitation and parenting time in this state. In 2014, the trial court entertained and denied the petitioner's motion to modify the parenting plan. The trial court also ordered a modification to the petitioner's child support obligation in April 2015.

         In late 2015, the respondent and child moved from California to Indiana without the trial court's approval or the petitioner's prior knowledge. In February 2017, the petitioner filed a petition with the trial court seeking to modify the parenting plan to provide him with primary residential responsibility for the child. As grounds for this modification, the petitioner complained that the respondent had moved the child to a different state without court approval, and alleged that the child was undernourished, subjected to physical discipline, and that her home life had little structure. Approximately six weeks later, the respondent filed a petition in Indiana seeking a custody order establishing parenting time in that state without informing the court in Indiana of the parenting plan or the pending petition to modify in New Hampshire. She also filed a motion to dismiss the modification petition in New Hampshire claiming that New Hampshire did not have jurisdiction.

         On May 3, 2017, the marital master held a hearing, at which the parties made offers of proof with respect to the pending motion to dismiss and the petition to modify. In an order that was subsequently approved by the trial court, the master found that both New Hampshire and Indiana had jurisdiction over the matter and that its task was to determine whether New Hampshire was "the better venue or an inconvenient forum" pursuant to the terms of the UCCJEA. RSA 458-A:18, II provides, in pertinent part, that when deciding whether New Hampshire "is an inconvenient forum under the circumstances and a court of another state is a more appropriate forum," trial courts "shall consider all relevant factors, including":

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would ...

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