Probate & Trust Litigation

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NH Supreme Court Issues Important Adoption Decision

In In re J.P., a case tried and argued on appeal by my colleague Jacqueline Leary, the NH Supreme Court provided important guidance on the construction of our adoption statute, which provides that notice of an adoption petition must be given to, among others:

A person who is … providing financial support to [the birth mother] or the child at the time any action under this chapter is initiated and who is holding himself out to be the child’s father prior to the mother surrendering her parental rights pursuant to RSA 170-B:9 or the mother’s parental rights being involuntarily terminated.

Thus, the statute requires that notice of an adoption petition be given to a person who is “providing support to the birth mother or the child… and who is holding himself out to be the child’s father… prior to the mother surrendering her parental rights… or the mother’s parental rights being involuntarily terminated.”  Until J.P., this provision arguably provided that, unless a mother’s parental rights are being surrendered or terminated, a man who is providing support and holding himself out to be the father has no right to notice of a proposed adoption.  Both the Probate Court (Quigley, J.) and the Supreme Court (Donovan, J.) rejected this narrow, unreasonable construction in favor of one that fulfills the statute’s purpose of promoting full and fair notice to a man holding himself out and functioning as the child’s father.

In J.P., our client was: acknowledged by the mother and her family as J.P.’s father; had regular visits with J.P.; and paid the mother regular support.  The mother curtailed our client’s access to J.P. and began refusing to accept support payments contemporaneous with her developing a romantic relationship with another man whom she married.  Within months of the marriage, the mother and her husband petitioned the Probate Court to have the husband adopt J.P. without notice to our client.  Unaware of the father-son relationship between our client and J.P., the Probate Court granted the unopposed adoption petition.

When the adoption was discovered, we sought to vacate the order.  The Probate Court conducted an evidentiary hearing and ruled that our client was entitled to notice under the above provision and awarded our client fees and costs incurred in the proceeding as well as post-hearing fees and costs for genetic testing that confirmed our client’s paternity of J.P.  On appeal, the Supreme Court affirmed the Probate Court’s Order with the sole exception of the award of fees and costs related to genetic testing.

In light of J.P., notice provisions in the adoption statute should be construed broadly and counsel should be cautious about treating references to surrender/termination of the birth mother’s parental rights as meaning that no notice need be given if her rights are not being surrendered or terminated.

(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at