In The Matter Of Miller

Facts

P and D met in 1999 over the internet and established a relationship. P lived in Michigan and D lived in New Hampshire. They never married but had two daughters. During 2002 and 2003, the parties spent some time living together in Michigan. D and the children spent some time alone in New Hampshire living with D's parents, and the parties all spent some time together at D's parents' house in New Hampshire. The parties' relationship broke down. P obtained an ex parte order in the circuit court in Michigan granting him sole temporary legal and physical custody of his daughters. That same day, D took the children to her parents' home in Hampton, New Hampshire. On January 6, 2004, D was served with the Michigan custody order. The court ordered D to appear at a hearing and on January 26. The trial court ordered D to bring the children to P within twenty-four hours for the purpose of transferring custody to him. Sometime in January, D's mother told her that, four months earlier, she saw D molest Laurel by inserting his forefinger into her. D took the children to the emergency department at Exeter Hospital and requested a 'well baby check.' There is no evidence in the record that D notified the hospital staff of any concerns regarding sexual abuse. The physical exam indicated the children's condition was good. D then transferred the children to P's custody. D reported to the alleged molestation to child services. No indications of sexual abuse of either child were found, and the investigation was closed. The court awarded both parties joint legal custody of the children. It questioned the veracity of both parties. In June 2005, d's father reported to the Hampton police that while he was lying in bed with Lindsay and Laurel watching a movie, Laurel tried to 'straddle' him on his chest and stated, 'I'm fucking you.'  In September 2005, a friend of D's made a statement to the police that Laurel had reported that P had spanked her in the groin area. D filed an ex parte petition for temporary stay of visitation. The court issued an order prohibiting P from having any contact with the children 'until this matter is duly investigated and any and all allegations of abuse are deemed unfounded.' The matter was closed as unfounded. In November 2005, D and the children's therapist reported to DCYF that Laurel had stated that P took 'pictures of her with her clothes off,' made her 'eat his pee pee' and 'panks her in the front.' On January 30, 2006, DCYF sent a letter to P stating that it had determined that he was 'the individual responsible for the abuse' and that his name would be entered 'on its central registry of founded child abuse and neglect reports.' DCYF rescinded its initial determination. A Dr. Ward issued an eighty-eight-page report in which she considered several hypotheses. She issued a report based on four theories. In making her recommendations, Dr. Ward cautioned that 'while it is unlikely that P has sexually abused Laurel, it is not possible to say with an absolute certainty that he did not.' She concluded that it is 'likely that D did influence her children with her negative beliefs about P. At the time, Dr. Ward submitted her report in late December 2007, P had not seen his children, outside of Dr. Ward's office, since September 2005. Dr. Ward recommended therapeutic reunification. The court issued an order for reunification. The court ordered that the parties enroll in reunification counseling with a new therapist and that they develop a schedule which gives P 'some increasingly longer periods of parenting time' during the reunification process. The court threatened D that if she did not change her attitude, it would change the primary location of the children to P. From the facts, this was a never-ending court battle with the primary issue of the court just not knowing what to do. It was clear from repeated court orders and therapies; the two parties were at odds with each other. The court repeatedly threatened both parties, but fundamentally the court did nothing. Eventually, a guardian ad litem was brought into the mix. The guardian filed a statement that Laurel’s first-grade teacher reported that she cried and disclosed that her father was going to hurt her mother. P filed a motion for custody. The master found that Dr. Ward's 'thorough and extraordinarily perceptive' parenting assessment included the conclusion 'that the girls are being exposed to something that undermines their relationship with father.'  The master found that P's expert, Dr. Garber, shared this conclusion. The master also found that D 'believes that `something sexual definitely happened'' and that Dr. Ward 'opined that mother `influence(d) her children with her negative beliefs about (father) . . . (and) did not protect the children from her feelings.'' The master concluded that 'the girls' best interests require that they continue living primarily with their mother in New Hampshire.' P appealed. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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