THE SUPREME COURT OF NEW HAMPSHIRE ___________________________
Portsmouth Family Division No. 2009-806
IN THE MATTER OF JAMES J. MILLER AND JANET S. TODD
Argued: November 17, 2010
Opinion Issued: March 31, 2011
Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the petitioner.
John P. Carr, of Hingham, Massachusetts, and Elizabeth B. Olcott, of Concord, on the brief, and Mr. Carr orally, for the respondent.
HICKS, J. The petitioner, James J. Miller, currently a resident of New
York, appeals an order of the Portsmouth Family Division (DeVries, J.), recommended by the Master (Cross, M.), requiring the parties’ two minor
daughters to continue to live primarily with the respondent, Janet S. Todd, in
New Hampshire. We vacate and remand.
We have reviewed the extensive record in this case and set forth the facts
most relevant to the issues on appeal. Miller and Todd met in 1999 over the
internet and established a relationship. At that time, Miller lived in Michigan and Todd lived in New Hampshire. Although they never married, their relationship produced two daughters, Laurel born in 2002 and Lindsay born in
2003. During 2002 and 2003, the parties spent some time living together in
Michigan, Todd and the children spent some time alone in New Hampshire living with Todd’s parents, and the parties all spent some time together at
Todd’s parents’ house in New Hampshire.
Toward the end of 2003, the parties’ relationship broke down. On
December 23, 2003, Miller 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, Todd took the children to her parents’ home in
Hampton, New Hampshire. On January 6, 2004, Todd was served with the Michigan custody order. On January 15, the Rockingham County Superior Court, in response to Miller’s petition for enforcement of the Michigan custody decree, ordered Todd to appear at a hearing and on January 26, the trial court
ordered Todd to bring the children to Miller within twenty-four hours for the
purpose of transferring custody to him.