¶1concurring in part and dissenting in part. While we agree with Chief Justice Broderick’s result and his conclusion that RSA 458:17, VI (2004) (repealed Oct. 1, 2005), is constitutional on its face, we respectfully disagree with his newly adopted test concerning the application of RSA 458:17, VI in custody disputes between a fit biological or adoptive parent and a grandparent or stepparent with in loco parentis status.
¶2The right of biological and adoptive parents to make decisions regarding the care, custody and control of their children is a fundamental liberty interest protected by both the State and Federal Constitutions. In the *109Matter of Nelson & Horsley, 149 N.H. 545, 547 (2003); Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). However, the State has a competing interest in the welfare of children within its jurisdiction and may exercise its parens patriae power to intervene if a child’s welfare is at stake. Preston v. Mercieri, 133 N.H. 36, 40 (1990). Accordingly, “parental rights are not absolute, but are subordinate to the State’s parens patriae power, and must yield to the welfare of the child.” Id.(emphasis added). The best interests of the child guide all custody matters in New Hampshire. See Bodwell v. Brooks, 141 N.H. 508, 512 (1996). Therefore, we must consider the constitutionality of RSA 458:17, VI in the context of these competing interests.
¶3In Troxel, the United States Supreme Court held that a Washington statute, granting “any person” standing to petition the court for visitation “at any time” and giving the court authority to grant visitation whenever it “may serve the best interest of the child,” was unconstitutional and “breathtakingly broad.” Troxel, 530 U.S. at 67. While acknowledging the presumption that fit parents act in the best interests of their children, the court stated that “[t]he problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to [the biological mother’s] determination of her daughters’ best interests.” Id. at 69. The Court reasoned that “if a fit parent’s decision [concerning visitation] becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Id. at 70 (emphasis added). The court specifically declined to consider “whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.” Id. at 73. Thus, Troxeldoes not preclude the court from exercising its parens patriae power in a custody dispute involving a fit parent and a third party so long as, in doing so, it grants some deference to a fit parent’s fundamental liberty interest in the care, custody and control of the child.
¶4We agree that RSA 458:17, VI is constitutional on its face because it is narrowly tailored, identifying only two classes of third parties who have standing to be considered in a custody dispute; namely, grandparents and stepparents. Unlike the “breathtakingly broad” Washington statute at issue in Troxel, RSA 458:17, VI, on its face, limits the third parties who may be considered in a custody dispute, thereby protecting the biological or adoptive parent’s constitutional rights. We have previously recognized that a denial of an award of physical custody is not equivalent to the termination of parental rights, and, therefore, does not require proof of the natural parent’s unfitness. See Stanley D. v. Deborah D., 124 N.H. 138, 142-43 (1983) (awarding joint legal custody and sole physical custody to the *110stepfather instead of the natural mother); Bodwell, 141 N.H. at 514 (holding that an in loco parentis stepfather can be a party to a custody proceeding between unwed biological parents). Given that we believe that Troxeldoes not mandate a finding of parental unfitness before a court may award visitation to a grandparent or stepparent, we conclude Chief Justice Broderick’s determination, that RSA 458:17, VI is constitutional on its face, is consistent with both our State jurisprudence and Troxel.
¶5Having concluded that RSA 458:17, VI is facially constitutional under Troxel, the chief justice next considers whether RSA 458:17, VI can be constitutionally applied to the custody dispute at issue. Because this dispute involves a fit biological parent (the father) and a related third party (the grandmother) and involves important and fundamental parental rights, the chief justice correctly applied a strict scrutiny analysis. We agree that additional procedural and substantive safeguards should be adopted and implemented in order to protect the biological parents’ rights when RSA 458:17, VI is applied in custody disputes between such parents and one of the two statutorily enumerated third parties with standing to intervene. However, we would adopt a less stringent standard than that proposed by the chief justice.
¶6His test subordinates the best interests of the child to the fundamental liberty interests of the fit parent. We believe that this is erroneous. See Preston, 133 N.H. at 40. The time has come for courts to stop treating children as the chattel of their parents. In child custody disputes, the best interests of the child must be paramount. See id.
¶7Accordingly, when applying RSA 458:17, VI (or, its successor, RSA 461-A:6 (Supp. 2005)), to determine a custody dispute between a fit biological or adoptive parent and a grandparent or stepparent, we would require the grandparent or stepparent to prove by clear and convincing evidence that: (1) based on the totality of the facts and circumstances of the case, he or she has established an in loco parentis relationship with the child; (2) the denial of custody to the grandparent or stepparent would cause significant emotional harm to the child; and (3) it is in the best interests of the child to award custody to the grandparent or stepparent. We believe these requirements provide the extra procedural and substantive protections that accord presumptive validity to the biological or adoptive parents’ interests and strike the proper balance between protecting those fundamental liberty interests and upholding the State’s parens patriae power to protect the best interests of the child.
¶8The chief justice would also require the intervening third party to prove the existence of an additional factor, such as that the biological parent has significantly failed to accept his or her parental responsibilities. Since fit parents are presumed to act in the best interests of their children, see *111Nelson, 149 N.H. at 547; Troxel, 580 U.S. at 68-69, a parent who significantly fails to accept his or her parental responsibilities is arguably unfit. Thus, imposing this additional factor sets the bar so high, particularly when the third party is a grandparent, that it is virtually indistinguishable from many of the extra protections required in abuse and neglect and termination of parental rights cases. To require proof of this additional factor would unreasonably restrict the court’s ability to exercise its parens patriae power and protect the best interests of the child— particularly in cases involving a grandparent.
¶9This application of RSA 458:17, VI is consistent with the additional protections required under Troxeland the present state of our jurisprudence governing custody issues. To hold otherwise, would require that a child raised for years by a grandparent or stepparent would always be given to a fit biological or adoptive parent without considering the best interests of the child.
¶10We have declined to find that a denial of physical custody is equivalent to the termination of parental rights. Stanley D., 124 N.H. at 142-43. We have also declined to grant custodial rights to a third party who was not statutorily identified in RSA 458:17, VI but had established an in loco parentis relationship with the child. Nelson, 149 N.H. at 549 (custody dispute between the biological mother and an unrelated third party with whom she had been in a long-term relationship and who had established in loco parentis status). In the context of a custody determination, the emotional ties that exist between a third party, who is not a grandparent or stepparent as protected by statute but has attained in loco parentis status, and the child are important. However, we need not address the applicability of this test to such third parties because that issue is not before us.
¶11While the dissent interprets Troxelto create a bright-line rule, which may be easily applied, we believe its interpretation is overly broad and fails to protect adequately the State’s parens patriae power, and by extension the best interests of the child, which is the fundamental principle guiding all custody matters. Bodwell, 141 N.H. at 512. By contrast, our test preserves the biological and adoptive parents’ fundamental liberty interests, while not unreasonably restricting the court’s ability to exercise its parens patriae power to protect the best interests of the child.
¶12Therefore, consistent with the foregoing, we would reverse and remand this case for a determination of custody consistent with the procedural and substantive protections encompassed in our proposed test.
¶13dissenting. 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.
¶14As the chief justice notes in his opinion, Troxelrecognized 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.
¶15Troxel, 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.
¶16We 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.
¶17While 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.
¶18We 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).
¶19As 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.
¶20*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.”
¶21We 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.
¶22Moreover, 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.
¶23The 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.
¶24We 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.
¶25Nelson, 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.
¶26For these reasons, we would affirm the final decree of the superior court. Accordingly, we respectfully dissent.