dissenting. Because we agree with the superior court that RSA 458:17, VI (2004) (repealed Oct. 1, 2005) is *112unconstitutional on its face in the wake of Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), we respectfully dissent.
As the chief justice notes in his opinion, Troxel recognized that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody and control of their children.” Troxel, 530 U.S. at 66. We have long recognized a corollary right under Part I, Article 2 of the New Hampshire Constitution. See In the Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003). In Troxel, the United States Supreme Court examined a Washington non-parental visitation statute and concluded that, as applied to the parent in that case, it unconstitutionally infringed upon that fundamental parental right. The court explained:
[T]he Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect... a court can disregard and overturn any decision by a fit custodial parent concerning visitation ... based solely on the judge’s determination of the child’s best interests.
Troxel, 530 U.S. at 67. The court concluded that a State will normally have no reason to interfere with a parent’s ability to make the best child-rearing decisions where that parent is deemed fit. Id. at 68-69.
We have recognized a meaningful difference between awards of visitation and awards of custody, and have noted that granting visitation is a far lesser intrusion into parental rights than an award of custody. In the Matter of Kosek & Kosek, 151 N.H. 722, 725 (2005); see Nelson, 149 N.H. at 548; Roberts v. Ward, 126 N.H. 388, 393 (1985). Thus, we consider it logical to extend the rationale underlying Troxel, which considered the constitutionality of a non-parental visitation statute, to our examination of RSA 458:17, VI, which permits an award of non-parental physical custody.
While RSA 458:17, VI is not as “breathtakingly broad” as the statute examined in Troxel, see Troxel, 530 U.S. at 67, we believe that it is, nonetheless, unconstitutionally broad under the United States and New Hampshire Constitutions. As written, RSA 458:17, VI permits a court to award custody to a stepparent or grandparent “if the court determines that such an award is in the best interests of the child.” RSA 458:17, VI. Much like the Washington non-parental visitation statute, it places the “best interest” determination solely in the hands of the court, regardless of a biological parent’s fitness. We disagree with the chief justice’s conclusion that RSA 458:17, II (2004) (repealed Oct. 1, 2005), which presumes that joint legal custody is in the best interest of minor children, and RSA *113458:17-d (2004) (repealed Oct. 1, 2005), which accords deference to a parent’s wishes when determining grandparent visitation rights, somehow cure this defect regarding physical custody.
We do not contest the court’s assertion that the State has a competing interest in the welfare of children within its jurisdiction as embodied by its parens patriae power. We are unconvinced, however, that, under the “certain circumstances” identified by the chief justice, it qualifies as a compelling state interest that acts as a de facto counterweight to a fit biological parent’s fundamental liberty interest in the care, custody or control of his or her children. We have noted that parental rights are “not absolute, but are subordinate to the State’s parens patriae power, and must yield to the welfare of the child.” In the Matter of Berg & Berg, 152 N.H. 658, 661 (2005). However, we are typically careful to permit the exercise of that power only in cases contemplating lesser intrusions into a parent’s fundamental rights. See id. (superior court has authority to determine whether it is in the best interests of a child involved in a custody dispute to have confidential and privileged therapy records revealed to his or her parents); Roberts, 126 N.H. at 392 (superior court may utilize its parens patriae power to permit grandparental visitation when it is in the best interests of the child and RSA 458:17, VI does not apply). But see Bodwell v. Brooks, 141 N.H. 508 (1996) (in custody proceeding between unwed natural parents, superior court may use its parens patriae power to decide whether best interests of the child warrants intervention of stepparent as appropriate party).
As we noted previously, we have been careful to distinguish such lesser intrusions into fundamental parental rights from an award of custody, and we believe that the court now extends the State’s parens patriae power in a way that erases that distinction. There is a presumption that fit parents act in the best interests of their children. Nelson, 149 N.H. at 547; Troxel, 530 U.S. at 68-69. We note that this presumption of fitness is not irrefutable, and that there exists in New Hampshire a statutory framework enabling the State to intervene in the family milieu and reassign custody when a child’s welfare is at stake. See generally RSA ch. 169-C (2002 & Supp. 2005) (Child Protection Act); RSA ch. 169-D (2002 & Supp. 2005) (Children In Need of Services); RSA ch. 170-C (2002 & Supp. 2005) (Termination of Parental Rights). By reading RSA 458:17, VI to justify intrusion into an otherwise fit parent’s custodial rights as an exercise of the State’s parens patriae power to “protect the best interest of the child,” the court wrests the presumed ability to act in the best interests of a child from a fit parent and shifts it to the trial judge. This is the very sort of interference deemed to be an unconstitutional intrusion into fundamental parental rights by Troxel. Troxel, 530 U.S. at 67-68.
*114The court concludes that RSA 458:17, VI is neither unduly restrictive nor unreasonable, and that it is sufficiently narrowly tailored so as to pass muster under a strict scrutiny analysis. In reaching this conclusion, the chief justice holds that, in determining the best interest of the child under RSA 458:17, VI, a court must give special consideration to the wishes of a child’s parents. He further holds that an intervening party must show, by clear and convincing evidence, that: (1) a custody award is in the child’s best interest because of a significant psychological parent-child relationship; (2) that the family unit is in the process of dissolution; and (3) there is some additional overriding factor justifying intrusion into the parent’s rights, “such as a significant failure by the opposing parent to accept parental responsibilities.”
We find no such requirements in the language of RSA 458:17, VI or RSA 458:17 as a whole. It is axiomatic that, when the language of a statute is plain and ambiguous, we will not consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute. See, e.g., Woodview Dev. Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005). Though the chief justice believes that the language of RSA 458:17, VI is clear and unambiguous, we believe that he ascribes additional narrowing language to RSA 458:17 that the legislature did not see fit to incorporate.
Moreover, a test requiring courts to give “special consideration” to the wishes of a child’s parents is inherently subjective and unworkable. Such a test will result in trial judges micromanaging custody determinations using criteria that necessarily reflect their personal predilections and biases. If applied on a case-by-case basis, the “special consideration” test proposed by the chief justice will create a morass of inconsistency in the State’s trial courts.
The chief justice notes that a child may be harmed if removed from a stepparent or grandparent with whom the child has established a significant parent-child relationship “because of the dissolution of the nuclear family.” This may undoubtedly be true in some cases. However, this recognition does little to remedy the fact that, as written, RSA 458:17, VI places the right to determine a child’s “best interest” solely in the hands of the court, regardless of a biological parent’s fitness. For the reasons outlined above, we believe this to be an unconstitutional infringement upon a fit biological parent’s fundamental rights. We would leave it to the legislature to prescribe a remedy for the problem introduced by the chief justice.
We conclude by reiterating the majority position in Nelson, where we stated:
*115[The] application of the best interests of the child standard in a custody dispute between a natural ... parent and a nonparent would offend due process if the parent’s conduct towards the child has not been inconsistent with the parent’s constitutionally protected status.
Nelson, 149 N.H. at 548. Addressing the specific facts of that case, we held that it would violate a fit natural parent’s State constitutional rights to grant custodial rights to an unrelated third person over the express objection of that parent. Id. at 549. We recognized, however, that our decision in Bodwell, 141 N.H. at 514, carved out a limited exception to this rule for stepparents. Nelson, 149 N.H. at 549; see also Stanley D. v. Deborah D., 124 N.H. 138, 143 (1983). Consistent with our reasoning above, we would overrule Bodwell and Stanley D. in light of the United States Supreme Court’s decision in Troxel.
For these reasons, we would affirm the final decree of the superior court. Accordingly, we respectfully dissent.