Michele L. Wright
Dean J. Kemp
Appeal from v. Superior Court, Windsor Unit, Family Division
Elizabeth D. Mann, J.
Elizabeth D. Mann, J. Elizabeth A. Kruska of Elizabeth A.
Kruska, PLLC, Woodstock, for Plaintiff-Appellee.
Kemp, Pro Se, Claremont, New Hampshire, Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and
Morris, Supr. J. (Ret.), Specially Assigned
MORRIS, SUPR. J. (RET.), SPECIALLY ASSIGNED.
1. Father appeals the superior court's decision granting
mother's motion to modify parental rights and
responsibilities and permitting father to have contact with
the parties' minor child only if the child agrees. We
affirm the modification of parental rights and
responsibilities, but reverse and remand the parent-child
2. The parties' daughter was born in July 2002. In
November 2012, the family division of the superior court
entered a final order awarding primary legal rights and
responsibilities for daughter to mother, subject to an
obligation to consult with father prior to making any major
decisions. The court ordered the parties to share physical
rights and responsibilities. The schedule set forth in the
order called for daughter to spend approximately half of her
time with each parent. The parties were required to attempt
to resolve any disputes about parenting issues through
mediation before returning to court.
3. In August 2017, father filed a motion to enforce
parent-child contact. He claimed that mother had consistently
interfered with his contact with daughter and recently had
prevented him from seeing daughter at all. Mother denied
father's allegations that she had interfered with his
contact with daughter. She asserted that daughter, who was
now fifteen years old, felt uncomfortable and anxious around
father and no longer wanted to have contact with him. Mother
asked the court to appoint counsel for daughter so that
daughter could testify on her own behalf. Mother also moved
to modify the November 2012 order to give her sole legal and
physical responsibilities for daughter. She sought to modify
the parent-child contact order so that overnight visits were
no longer required and daughter could end contact with father
if daughter felt uncomfortable. The court initially denied
both parties' motions because they had not attempted to
mediate their dispute before coming to court.
4. After an unsuccessful attempt at mediation, the parties
renewed their motions. The court appointed a guardian ad
litem for daughter and scheduled an evidentiary hearing on
parental rights and responsibilities for March 15, 2018. In
the meantime, it ordered that father be allowed contact with
daughter for at least one hour per week in a public location.
5. The day before the March 2018 hearing, mother asked the
court to schedule a separate hearing to permit testimony from
daughter. She argued that "certain events had
occurred" between father and daughter, causing daughter
to express a desire not to have contact with father, and that
daughter's testimony was necessary because only she could
testify about those events. Father opposed mother's
request for daughter to testify, arguing that it was not
appropriate for daughter to testify about why no visitation
agreement had been reached, or "to address activity that
is simply a recurrence of the same behavior/refusals which
the Court was informed about at the previous hearing."
He further argued that daughter could not testify unless the
court appointed a lawyer to represent her.
6. At the beginning of the March 2018 hearing, mother's
attorney suggested that the court hear from the parties'
other witnesses before deciding whether daughter should be
called to testify. Father's attorney did not object.
After hearing testimony from mother, daughter's
therapist, daughter's school principal, and father, the
court granted mother's motion to set another hearing to
allow daughter to testify. Father's attorney asked if he
could submit questions for the court to ask daughter. The
court ordered the parties to file a stipulated list of
proposed questions prior to the hearing.
7. The second hearing took place in May 2018. At father's
request, the court appointed counsel for daughter.
Opportunity was provided for daughter to consult with
counsel, and she did so. The court then questioned daughter
briefly in chambers, in the presence of her attorney and
guardian ad litem. Daughter's testimony was recorded and
broadcast into the courtroom to be heard by the parties and
8. The court subsequently issued a written decision granting
mother's motion to modify parental rights and
responsibilities and parent-child contact and denying
father's motion to enforce the original order. The court
found that the parties' motions were triggered by an
incident in July 2017. Daughter was with mother and
stepfather at their summer home in Island Pond on
father's birthday. Father was scheduled to have contact
with daughter that day. Daughter wanted to remain in Island
Pond and tried to convince father to delay parent-child
contact. An argument ensued. Father then posted disparaging
comments about stepfather on Facebook. Daughter saw
father's posts and became deeply upset. She began crying
and screaming that she hated father. She blocked him on her
Facebook account and blocked his calls and text messages on
her cell phone.
9. Daughter later tried to talk to father about her feelings
but was unsuccessful. She wrote a letter to father explaining
that his negativity caused her to feel stressed, anxious,
confused, and unhappy, and that she did not feel comfortable
being around him as a result. In the letter, she asked father
not to contact her and to consider engaging in counseling. At
the time she wrote the letter, daughter was fifteen years
old. The letter was admitted as an exhibit at the March 2018