Justia.com Opinion Summary:Download as PDF
The superior court awarded sole legal custody of two children to their mother, Taunya, upon her motion to modify custody. Their father, William, appealed, arguing that the superior court improperly weighed the best interests of the children. Because the Supreme Court concluded that there was sufficient evidence to support the superior court’s conclusions and that the superior court did not abuse its discretion, the Court affirmed the superior court’s decision.Receive FREE Daily Opinion Summaries by Email
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303
K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
THE SUPREME COURT OF THE STATE OF ALASKA
Supreme Court No. S-13993
Superior Court No. 4FA-07-02615 CI
No. 6595 – August 26, 2011
Appeal from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Herbert M. Pearce, Anchorage, for Appellant.
Margaret O’Toole Rogers, Foster & Rogers, LLC, Fairbanks,
Before: Carpeneti, Chief Justice, Fabe, Winfree, and Stowers,
Justices. [Christen, Justice, not participating.]
The superior court awarded sole legal custody of two children to their
mother, Taunya, upon her motion to modify custody. Their father, William (Bill),
appeals, arguing that the superior court improperly weighed the best interests of the
children. Because we conclude that there was sufficient evidence to support the superior
court’s conclusions and that the superior court did not abuse its discretion, we affirm the
superior court’s decision.
FACTS AND PROCEEDINGS
Bill and Taunya P. were married on February 14, 1998. They had two sons,
born in 1998 and 2000. Bill and Taunya were divorced on December 29, 2008. Under
the terms of a settlement agreement, they shared legal and physical custody. At that time,
both parties resided in Fairbanks. Bill worked for a military contractor and Taunya
worked as a teacher’s aide. Taunya had discussed moving to North Dakota, where she
grew up. In Bill’s and Taunya’s divorce decree the superior court ordered that if Taunya
were to move to North Dakota, their sons would spend the school year with her and
summer and winter vacations with Bill.
Taunya moved to Mandan, North Dakota, a suburb of Bismarck, in
August 2009. Bill relocated to Anchorage. On September 18, 2009, Taunya requested
sole legal custody. Taunya alleged that Bill had attempted to intimidate her into
remaining in Alaska. She also alleged that, while she was still in Alaska, Bill had
sometimes not allowed her to have contact with the children and refused to seek routine
medical care for one son’s asthma. Taunya claimed that communication with Bill had
deteriorated and that Bill had undermined the children’s relationship with her. Taunya
requested that Bill be allowed only monitored telephonic visitation.
Bill responded and requested that the court award sole legal custody of the
children to him. Bill argued that Taunya’s erratic behavior was to blame for many of the
parties’ problems. Bill claimed that Taunya had limited his telephone contact with the
children. Bill claimed that on three occasions Taunya disconnected the telephone cord
from the wall when his conversation with the children went past 9:00 p.m., the children’s
designated bedtime. Bill alleged that Taunya refused to cooperate in setting up a web
camera system so that he could communicate with his children. Bill disputed that he was
at fault for their communication difficulties, pointing to sixty emails he sent to Taunya
to bolster his argument that he was supporting communication between them.
On October 9, 2009, Taunya replied to Bill’s opposition and cross-motion
to modify custody. She characterized Bill’s opposition as “filled with irrelevant and
inconsequential accusations against Taunya.” She again asserted that it was impossible
for her to communicate with Bill, and that Bill, by disputing her reasons for moving to
North Dakota, was “inappropriately involved in her choices.” In responding to Bill’s
cross-motion, Taunya argued that it was in the best interests of the children to be with
their mother. Bill responded with an affidavit on December 7, 2009, asserting that the
best interests of the children justified custody with him.
On January 1, 2010, Bill remarried. His current wife has an ongoing
custody dispute with her ex-husband over her two children from a previous marriage.
On December 11, 2009, the superior court appointed a child custody
investigator. The investigator had earlier served as the investigator during the parties’
divorce. The investigator submitted his report on June 29, 2010. The investigator found
that “[t]his is without a doubt the most contentious, unreasonable[,] and manipulative pair
of parents with whom” he had ever dealt. The investigator wrote that Bill “frequently
employs sarcasm” towards Taunya and “subtly undermines” her through his
communications with their sons. But the investigator also wrote that “Taunya is not the
innocent victim . . . . In phone calls and emails, she nitpicks, whines, complains, and
appears to have difficulty taking responsibility for her actions.” The investigator noted
that Taunya admitted slapping her children and admitted that she once “manhandled her
The investigator accordingly wrote that “neither parent is
appropriately supportive of the boys maintaining a loving relationship with the other
parent.” The report also stated both children “expressed strongly and repeatedly that they
wished to live with their father for the bulk of the year”; one boy explained that he
preferred his father because he did not “like being yelled at and smacked.”
The investigator concluded by noting that Taunya and Bill “do not appear
to be able to have a civil discussion about the boys or to make mutually supportive
decisions on behalf of their children.” The investigator recommended that the custody
arrangement be reversed: the children would spend the school year with Bill and
summers with Taunya. The investigator based this recommendation on two rationales.
First, he referred to “Taunya’s growing harshness as a parent, especially her physical
abuse of the boys and her escalation of the physical struggle with her son; these reactions
are likely to increase as the boys enter their full adolescence with their own power issues
and typical disrespectfulness.” The second rationale was the preference of the two boys
to be with their father. The investigator also recommended that the parties not
communicate directly but instead use a “third party who will pass communications.”
A hearing was held on July 20, 21, and 22. The superior court held that
“[b]ecause the court concludes that the parties[’] history of noncooperation has adversely
impacted the boys to the extent that a change in legal custody is necessary, Taunya’s
motion for sole custody is granted.” The superior court also reduced Bill’s visitation to
one week at Christmas and six weeks during the summer.
STANDARD OF REVIEW
Alaska Statute 25.20.110(a) provides that an “award of custody of a child
or visitation with the child may be modified if the court determines that a change in
circumstances requires the modification of the award and the modification is in the best
interests of the child.” We will reverse a custody modification order “only if the record
shows an abuse of discretion or if controlling factual findings are clearly erroneous.”1
Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (internal quotation marks
An abuse of discretion in child custody awards occurs when “the trial court considers
improper factors, fails to consider statutorily mandated factors, or gives too much weight
to some factors.”2 Factual findings are clearly erroneous if a review of the record leaves
us “with the definite and firm conviction that the superior court has made a mistake.”3
The trial court’s factual findings enjoy particular deference when they are based
“primarily on oral testimony, because the trial court, not this court, performs the function
of judging the credibility of witnesses and weighing conflicting evidence.”4
Bill does not contest that there was a substantial change of circumstances
warranting modification of child custody in accordance with AS 25.20.110(a). But he
argues that the trial court erred in finding that it would be in the boys’ best interests for
Taunya to have sole legal custody. We disagree. The trial court considered all relevant
factors, and we cannot conclude that it clearly erred in its factual findings or abused its
discretion in deciding to award custody to Taunya.
Alaska Statute 25.20.110(g) provides that “[i]n making a determination of
the best interests of the child, the court shall consider the factors under AS 25.24.150(c).”
Alaska Statute 25.24.150(c) lists nine factors:
D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 207-08 (Alaska
Misyura v. Misyura, 242 P.3d 1037, 1039 (Alaska 2010) (quoting Ebertz
v. Ebertz, 113 P.3d 643, 646 (Alaska 2005)).
(1) the physical, emotional, mental, religious, and social
needs of the child;
(2) the capability and desire of each parent to meet these
(3) the child’s preference if the child is of sufficient age
and capacity to form a preference;
the love and affection existing between the child and
(5) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
(6) the willingness and ability of each parent to facilitate
and encourage a close and continuing relationship between
the other parent and the child, except that the court may not
consider this willingness and ability if one parent shows that
the other parent has sexually assaulted or engaged in
domestic violence against the parent or a child, and that a
continuing relationship with the other parent will endanger
the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or
child neglect in the proposed custodial household or a history
of violence between the parents;
(8) evidence that substance abuse by either parent or other
members of the household directly affects the emotional or
physical well-being of the child;
other factors that the court considers pertinent.
Physical, emotional, mental, religious, and social needs of the
The superior court found that the parties’ sons “have suffered emotional
damage because of the conflict between their parents.” The superior court found that Bill
in particular was to blame for this conflict and therefore Taunya was “the only parent
able to meet the children’s special emotional needs.”
Bill argues that Taunya shared responsibility for the tension between them
and its impact on the children. But we have reasoned that “joint legal custody is
inappropriate if the parents cannot communicate effectively.”5 Because there was
evidence that Bill was more to blame for his and Taunya’s poor communication, it was
not clearly erroneous for the superior court to use the first factor to support awarding sole
legal custody to Taunya.
The capability and desire of each parent to meet the children’s
The superior court distinguished between the children’s emotional needs
and their physical, educational, and social needs.
The superior court found that “Taunya is the only parent able to meet the
children’s special emotional needs.” The court explained that Bill’s involvement with
his current wife’s custody battle would expose the children to more of the same domestic
conflict they had already experienced. The superior court emphasized Taunya’s track
record as a primary caregiver, and found that Bill’s “unwillingness to support the boys
emotionally throughout the last year and instead to advance his own victimization
narrative shows a complete lack of understanding of the boys[’] needs.” Diana Jacobsen,
the boys’ North Dakota therapist, testified that the boys had absorbed negative ideas
about their mother that they had heard from their father. Bill acknowledged that his
frustration with Taunya’s move to North Dakota probably “spilled over to the kids.” Bill
recorded several conversations between himself and the children and submitted those
recordings to the superior court. In these recordings Bill blames and criticizes Taunya
for moving the children to North Dakota. Because there was evidence that Bill was
Cusack v. Cusack, 202 P.3d 1156, 1160 (Alaska 2009).
harming the children’s emotional needs by undermining Taunya, it was not clearly
erroneous to conclude that this factor favored Taunya.
The superior court separately found that Taunya was also “better able to
meet the children’s physical, educational, and social needs.” The superior court
emphasized Taunya’s “track record” as the parent “who primarily cared for the boys
during the marriage” and after they moved to North Dakota. As to the children’s
physical needs, one witness testified that Bill obtained two dogs against the advice of the
children’s physicians. And Taunya generally criticized Bill’s failure to take their son’s
medical needs seriously. Regarding the boys’ social needs, Diana Jacobsen testified at
the hearing that Bill’s negative comments about Taunya could result in unhealthy
attitudes toward women later in life.
Bill argues that based on his parenting performance during the parties’
shared custody in Alaska, there is no basis to conclude that Taunya would be a superior
caregiver. Bill notes that the custody investigator found that the children could be
expected to function in either parent’s custody and repeatedly emphasizes that the
custody investigator recommended that primary custody be with him.
We have explained that “custody investigators are simply expert witnesses
and that their recommendations should be evaluated on a case-by-case basis, in the same
manner as testimony presented by other witnesses.”6 In Ebertz v. Ebertz, we found that
the superior court did not abuse its discretion by rejecting a custody investigator’s
analysis and recommendations.7 We stated that the “critical question . . . is not whether
the superior court erred in rejecting the custody investigator’s proposed decision, but
Ebertz, 113 P.3d at 647.
whether the evidence as a whole supports the court’s decision.”8 Here, the child custody
investigator acknowledged that the children could function in either parent’s custody, and
it was not clearly erroneous for the superior court to select the parent not recommended
by the investigator.
The children’s preference
The superior court discounted the children’s preference to live with Bill.
According to the custody investigator, both children “expressed strongly and repeatedly
that they wished to live with their father for the bulk of the year.” And Bill testified that
the children voluntarily call him nearly every day. But the superior court found that, at
ages eleven and ten, the children did not have “sufficient age or capacity to express a
preference.” Alaska Statute 25.24.150(c)(3) provides that a child’s preference is to be
considered “if the child is of sufficient age and capacity to form a preference.” We
conclude that the superior court’s finding that the boys lacked the age and capacity to
form a preference was not clearly erroneous. But, of course, as the boys get older, the
trial court will be more inclined to respect their preference.9
Id. at 647-48; see also Chase v. Chase, 109 P.3d 942, 945 (Alaska 2005)
(“We have previously held that the trial court is not obligated to adopt a custody
investigator’s recommendations.”); Evans v. Evans, 869 P.2d 478, 480 (Alaska 1994)
(upholding trial court’s decision to grant custody to father even though custody
investigator recommended granting custody to mother); Nichols v. Mandelin, 790 P.2d
1367, 1373 (Alaska 1990) (affirming trial court’s decision to grant custody to mother
even though trial court’s decision contradicted custody investigator’s recommendation
that parents share custody).
See Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) (affirming custody
decision which placed “substantial reliance” on 14-year-old child’s preference).
The love and affection existing between the children and each parent
The superior court found that love and affection existed between the
children and both parents.
The length of time the children have lived in a stable,
satisfactory environment and the desirability of maintaining
The superior court found that the fifth factor of stability and continuity
favored Taunya. The court found that “the boys have done well in Taunya’s primary
care.” It found that the only area “where the boys are reported to have difficulty is in
their relationship with their mother and this difficulty can be specifically attributed to
Bill’s negative leadership.” The child custody investigator found that the children were
doing well in school, though they were having some difficulty making friends in North
Dakota. At the hearing, Taunya noted that she has many family connections in North
Dakota. Taunya also characterizes Bill’s home as “newly formed and riddled with
conflict” and notes that Bill also moved away from Fairbanks, where the boys had been
raised since birth.
Bill disputes the existence of Taunya’s positive “track record.” Bill notes
that, at the time of the custody hearing, Taunya had had school-year custody for only one
year, whereas Bill and Taunya had previously shared custody in Alaska for two years.
Bill also argues that the North Dakota arrangement was so recent that it could not be
relied on for purposes of establishing continuity. Bill notes that the children spent their
whole lives prior to the move in Alaska and that Taunya had family in Anchorage.
We have explained that the stability and continuity factor is not limited to
geographic continuity and stability, but instead encompasses the “totality of the
circumstances [the children] were likely to encounter in their respective parents’
homes.”10 Given this broad inquiry, we conclude there was sufficient evidence to support
the superior court’s finding on this factor.
The willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the other
parent and the children
The superior court found that the sixth factor of willingness to foster a close
relationship with the other parent strongly favored Taunya. The court found that while
Taunya had promoted the children’s relationship with Bill, Bill had only undermined
their relationship with Taunya. The custody investigator found that neither party was
sufficiently supportive of a relationship with the other parent, but found fault with “Bill
far more than Taunya.” The investigator found that “at times [Bill] . . . has not been
supportive of Taunya while on phone calls with the boys.” But the investigator also
found that Taunya had not adequately facilitated communication with Bill and “had not
followed through on [e]nsuring regular video [instant messaging] between the boys and
their father” and that she “had imposed the arbitrary time of 9 pm” to end conversations.
Bill argues that he allowed the children free access to a computer and phone
to contact their mother whenever they chose, whereas Taunya limited the children’s
access to these things. In their interviews with the custody investigator, the boys
confirmed Bill’s characterization. Taunya counters that the boys could talk to their father
every day at 8:30 p.m. but that she would insist on a 9:00 bedtime. She admits
unplugging the phone cord to end these calls on several occasions, arguing that she did
so only after Bill disregarded her previous requests to end the calls promptly at 9:00.
Evans, 869 P.2d at 482; see also Rooney v. Rooney, 914 P.2d 212, 217
(Alaska 1996) (“Continuity and stability for a child come not only from staying in the
same house, or going to the same school. Consideration should also be given to social
and emotional factors such as who the primary care-giver was for the child and whether
the child would be separated from siblings or family members if he was placed with one
parent rather than another.”).
Bill points to various efforts he undertook to support the children’s
relationship with Taunya. Bill argues that he attended counseling on how to handle
blended families. Bill also points to emails he sent to Taunya in which he attempted to
establish a spirit of cooperation. Taunya counters by arguing that the negative comments
Bill made about her to the boys were an attempt to undermine their relationship with her.
Taunya also notes various ways she has attempted to support the boys’ relationship with
Bill, such as mailing him school work or encouraging the children to make him presents.
We have reasoned that when parents reside at a great distance from each
other, it is appropriate to give greater weight to this factor.11 In Silvan v. Alcina, we
explained that “[i]t is essential to have a custodial parent willing to foster an open
relationship with the other parent when a great distance separates the children from the
non-custodial parent.”12 In this case, there is evidence that both Bill and Taunya at times
supported and at other times sabotaged the boys’ relationship with the other parent. Both
allowed communication between the children and the other parent but both also
undermined the authority of the other parent in various ways. The child custody
investigator and Diana Jacobsen both testified that Bill was more culpable in his attempt
to undermine Taunya than Taunya was to undermine him, and it was not clearly
erroneous for the superior court to have held that the sixth factor favored Taunya.
Any evidence of domestic violence, child abuse, or child neglect
in the proposed custodial household or a history of violence
between the parents
The superior court did not find there to be child abuse, child neglect, or
domestic violence. Taunya admits there was a “single instance of Taunya slapping her
Blanton v. Yourkowski, 180 P.3d 948, 951 (Alaska 2008); Silvan v. Alcina,
105 P.3d 117, 121 (Alaska 2005).
Silvan, 105 P.3d at 121.
disrespectful son.” The superior court characterized Taunya’s slapping as “not grossly
inappropriate” because Bill and Taunya had “used corporal punishment before.” Shortly
after Taunya and the children arrived in North Dakota, Bill called North Dakota child
protective services reporting verbal and physical abuse. This contact resulted in several
recommendations for Taunya but no continued involvement with protective services.
Taunya argues that her slapping did not constitute abuse and that in any event she has
responded to the slapping incident remorsefully and positively. And Diana Jacobsen
agreed that Taunya did not present the characteristics of a classic abuser and that she
demonstrated appropriate remorse for the slapping incident. The superior court did not
commit clear error in finding there to be no physical abuse.
Evidence that substance abuse by either parent or other members
of the household directly affects the emotional or physical
well-being of the children
The superior court did not find any evidence of substance abuse. The
investigator also found no evidence of substance abuse.13
The superior court shortened Bill’s visitation to one week at Christmas and
six weeks during the summer. The superior court reasoned that “it is necessary to reduce
the contact the boys have with their father in order to dilute the adverse impact he is
having on them.”
Bill argues that “the Superior Court’s . . . reduction in his visitation rights
was not supported by the record and should be reversed.” We view this as a very close
question. Bill argues that all “the experts in this case recommended there should be no
reduction in” Bill’s visitation. Taunya counters that this statement is incorrect and that
We do not discuss the ninth factor because the superior court did not rely
on it. See McDanold v. McDanold, 718 P.2d 467, 469 (Alaska 1986) (explaining that the
superior court need only consider all relevant statutory best interests factors).
Diana Jacobsen recommended reduced visitation. But at the hearing, when the court
asked Diana Jacobsen what the effect would be of restricting Bill’s visitation, Jacobsen
responded that she would not recommend reduced visitation at that time because the boys
“need their father just as much as they need their mother.”
We have explained that “the cooperation necessary to allow more liberal
visitation is far less than that needed for joint custody.”14 We have also held that
noncustodial parents “have certain residual rights and responsibilities including the right
and responsibility of reasonable visitation.”15 The treatise Modern Child Custody Practice
explains that visitation is a “natural right of the noncustodial parent that may not be taken
away absent extraordinary circumstances.”16 And in Lone Wolf v. Lone Wolf, we found
that the superior court had abused its discretion in denying the father’s request to have
visitation with his children while their mother worked week-long stints at her job as a
correctional officer without making findings to support the restrictive award.17 Here,
while we conclude that the superior court did not abuse its discretion in light of its
findings about the harm to the boys’ relationship with their mother caused by Bill’s
denigration of Taunya in front of them, we assume that the superior court will have the
opportunity to revisit this question if Bill ceases his ongoing “campaign” to undermine
Taunya. And, as we have recognized, as the boys get older and more mature, their
Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1191 (Alaska 1987).
J.F.E. v. J.A.S., 930 P.2d 409, 413 (Alaska 1996) (quoting AS 47.10.084(c))
(internal quotation marks omitted).
1 JEFF ATKINSON, MODERN CHILD CUSTODY PRACTICE § 5.2 (2d ed. 2010)
(internal quotation marks omitted); see also id. at § 5.13 (“The standard for placing
restrictions on visitation is similar to the standard for denial of visitation.”).
Lone Wolf, 741 P.2d at 1190.
reasoned preference regarding custody will be entitled to “substantial reliance” and is “not
so lightly to be disregarded.”18
We AFFIRM the decision of the superior court.
Valentino v. Cote, 3 P.3d 337, 341 (Alaska 2000); see also Yvonne S. v.
Wesley H., 245 P.3d 430, 433, 435 (Alaska 2011) (using mature child’s preference as a
“major factor” in making custody determination).