Petition of Eric Willeke and Regina Willeke
160 A.3d 688
| N.H. | 2017Background
- Eric and Regina Willeke (great-grandparents) petitioned for visitation with their five‑year‑old great‑grandchild; they had been the child’s guardians until November 12, 2015.
- Petition filed September 22, 2015; father Tyler Wyman responded, arguing great‑grandparents lack statutory standing.
- Trial court treated the response as a motion to dismiss and dismissed the petition for lack of standing under RSA 461‑A:13 (grandparents only); it did not address common‑law parens patriae claims.
- On appeal, the Willekes argued they retained common‑law standing to seek visitation under courts’ parens patriae power, independent of the statutory scheme.
- The Supreme Court reviewed whether statutes (RSA 458:17 VI as amended, RSA 458:17‑d, and successors RSA 461‑A:6 V and RSA 461‑A:13) abrogated the common‑law right to petition for visitation.
- Court held the statutory revisions replaced the common law visitation scheme, limiting standing to the classes and procedures set by statute, and affirmed dismissal for lack of standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether courts retain common‑law parens patriae power to grant visitation to great‑grandparents despite statutory scheme | Willekes: common‑law standing survived statutory amendments; court should consider parens patriae power to authorize great‑grandparent visitation | Wyman/State: statutory scheme (grandparents/stepparents) governs and excludes great‑grandparents; no common‑law residual right | Statutes superseded common law; no common‑law standing for great‑grandparent visitation; dismissal affirmed |
| Whether RSA 458:17 VI and RSA 458:17‑d (and successors) abrogated common law visitation rights | Willekes: argued common law persisted despite statutes | State: statutes created a comprehensive substitute governing visitation and standing | Court: statutes revised entire subject and were intended as a substitute; common law abrogated |
| Whether trial court erred by not addressing parens patriae power | Willekes: trial court should have considered exercising parens patriae jurisdiction | State: statutory framework controls; no need to reach parens patriae | Court: no error because common‑law parens patriae power was abrogated by statute |
| Whether Troxel principles would bar court from ordering great‑grandparent visitation if parens patriae applied | Willekes: Troxel does not prohibit court’s exercise of parens patriae here | Wyman: (implicit) statutory limits control; Troxel not reached | Court: did not decide Troxel question because statutory abrogation made it unnecessary |
Key Cases Cited
- Roberts v. Ward, 126 N.H. 388 (1985) (recognized parens patriae‑based grandparent visitation outside divorce proceedings)
- Troxel v. Granville, 530 U.S. 57 (2000) (plurality decision establishing parental due‑process concerns in third‑party visitation)
- In the Matter of Rupa & Rupa, 161 N.H. 311 (2010) (adopted Troxel principles in New Hampshire)
- Powell v. Catholic Med. Ctr., 145 N.H. 7 (2000) (statute that revises entire subject can abrogate common law even absent express language)
- Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450 (2015) (will not construe statute to abrogate common law unless intent is clear)
- Petition of Lundquist, 168 N.H. 629 (2016) (standing challenge on motion to dismiss requires courts to look beyond pleadings)
- Town of Barrington v. Townsend, 164 N.H. 241 (2012) (issues not briefed on appeal are waived)