search the entire site.
or go to the recent opinions, or the chronological or subject indices.
C. Harvick v. D. Harvick (4/3/92), 828 P 2d 769
Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
CLYDE RAY HARVICK, )
) Supreme Court File No. S-4436
Appellant, ) Superior Court File No.
) 3AN-88-691 Civil
v. ) O P I N I O N
DORTHEA M. HARVICK, )
Appellee. ) [No. 3828 - April 3, 1992]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, John Reese, Judge, and Elaine
Appearances: Clyde Ray Harvick, San
Jose, California, Appellant Pro Se. Terry C.
Aglietti, Aglietti, Rodey & Offret,
Anchorage, for Appellee.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
Pro se litigant Clyde Harvick appeals the superior
court's decision to permit his ex-spouse, Dorthea Harvick, to
withdraw her voluntary relinquishment of parental rights in their
daughter. The court's decision effectively reinstated an earlier
court order awarding custody to Dorthea. Although we agree that
Dorthea, a native Alaskan, had the right to withdraw her
relinquishment under the Indian Child Welfare Act (ICWA), we
remand this case for a hearing to determine what custody
disposition is in the child's best interests.
Dorthea and Clyde Harvick were divorced in March 1979.
The court gave Dorthea custody of the couple's two-year-old
daughter, Mary Jean. Clyde received reasonable visitation
rights. Subsequent to the divorce, Dorthea developed a
severe problem with alcohol. In April 1981, she placed Mary Jean
with the Division of Family and Youth Services (DFYS) and
enrolled in an alcohol treatment program. In June 1981, Dorthea
voluntarily signed a relinquishment of her parental rights before
Master William Hitchcock. Master Hitchcock signed a voluntary
consent certification as required by statute. DFYS took
temporary custody of Mary Jean.
Later that month, DFYS moved Mary Jean from foster care
to the care of her father who was then residing in Utah.
According to the DFYS report, Clyde was "willing and anxious" to
take custody of Mary Jean. A home study conducted by Utah social
services at the request of DFYS indicated that he was a fit
person to take custody of Mary Jean.
It appears from the record that neither Clyde nor the
state sought a final termination of Dorthea's rights. Although
DFYS paperwork indicated that "legal custody"was being returned
to Clyde, no order giving Clyde formal custody of Mary Jean was
ever issued by any court.
Mary Jean lived with her father for approximately six
and one-half years. Dorthea had no contact with Mary Jean until
she wrote her daughter in 1987. Dorthea did, however, correspond
sporadically with Clyde.
In November 1987, Dorthea filed an action in
California, where Clyde was then living with Mary Jean, seeking
to enforce the 1979 custody decree. She filed an affidavit with
the California court claiming that she had not known of Mary
Jean's whereabouts during the last six and one-half years. She
also claimed that she had voluntarily given Clyde temporary
custody of Mary Jean while she went through alcohol treatment but
that he had simply taken and kept the child.
Clyde informed the California court that Dorthea had
voluntarily relinquished all rights to the child. However, Clyde
could not produce documents to prove that this relinquishment had
occurred. The California court, having only the custody decree
before it, ordered that Mary Jean be returned to her mother.
Consequently, Mary Jean has been in Dorthea's physical custody
since November 1987.
In January 1988, Clyde moved to modify custody in the
Alaska courts.1 In May 1989, Dorthea moved to withdraw her
voluntary relinquishment. In October 1989, Judge Andrews
consolidated Dorthea's motion with Clyde's motion to modify.
In December 1989, Judge Andrews granted Dorthea's
motion to set aside relinquishment of her parental rights. In
her decision and order, Judge Andrews stated that:
[U]nder the plain language of 1913 [of
the Indian Child Welfare Act (ICWA)], it
appears that, no final decree of termination
having been entered by the Alaska courts and
no final petition of adoption having been
signed that Ms. Harvick has an unqualified
right to withdraw her voluntary
relinquishment. To find otherwise would be
contrary to the dictates of ICWA and the
ameliorative goals of that act . . . .
The effect of this court's order
granting the withdrawal of Ms. Harvick's
voluntary relinquishment is to set the
parties back to their respective legal
positions of March 15, 1979, pursuant to the
divorce decree granted at that time. The
mother has custody of the child. The father
has rights of visitation.
Judge Andrews also ruled that Clyde's motion for modification was
not ripe for decision.2 This appeal followed.
Trial courts are vested with broad discretion in
dealing with custody issues. Gratrix v. Gratrix, 652 P.2d 76, 79
(Alaska 1982). We review custody determinations on an abuse of
discretion basis. Id. at 79-80. It is within the special
competency of this court to independently interpret a statute.
Wien Air Alaska, Inc. v. Dep't of Revenue, 647 P.2d 1087, 1090
A literal application of the ICWA authorizes Dorthea's
withdrawal of her relinquishment. The ICWA provides that:
In any voluntary proceedings for
termination of parental rights to, or
adoptive placement of, an Indian child, the
consent of the parent may be withdrawn for
any reason at any time prior to the entry of
a final decree of termination or adoption, as
the case may be, and the child shall be
returned to the parent.
25 U.S.C. 1913(c). See In re J.R.S. v. M.S.F., 690 P.2d 10
(Alaska 1984) (consent to termination of parental rights under
the ICWA may be withdrawn at any time before a final decree of
termination is entered). Although the drafters of this statute
probably never envisioned the unusual circumstances of this case,
a plain reading of the section supports the trial court's
decision to allow Dorthea to withdraw her relinquishment.
However, the relinquishment issue clouds what is
essentially a custody dispute between divorced parents. Although
no court order transferred legal custody to Clyde, we cannot
ignore the fact that he was the child's sole care giver for six
and one-half years.
In general, when a divorce decree gives custody to one
parent, as opposed to the other, it is effective only as between
the parties to the divorce. Turley v. Turley, 638 P.2d 469
(Okla. 1981). Courts have applied this rule in holding that the
right to custody of a minor child automatically transfers to the
non-custodial parent when the custodial parent dies. Id.;
Woodford v. Superior Court, 309 P.2d 973 (Ariz. 1957).
Similarly, in this case, Dorthea's relinquishment of parental
rights operated to transfer custody to Clyde as the only
remaining natural parent. The relinquishment document, which was
approved by the court, constitutes a modification of custody.
Although Dorthea retains the right to withdraw her
relinquishment under the ICWA, it does not naturally follow that
she is therefore entitled to legal custody of her daughter under
state law. We therefore conclude that the superior court erred
in returning the parties to their 1979 legal positions without
further proceedings to modify custody.3
The superior court has continuing jurisdiction "during
the minority of a child of the marriage, [to] make, modify, or
vacate an order for the custody of or visitation with the minor
child that may seem necessary or proper. . . ." AS 25.24.150(a).
Both our case law and statutes require custody determinations to
be in accordance with the best interests of the child. See
Gratrix, 652 P.2d at 82 (the paramount consideration in custody
determinations is the best interest of the child); AS
25.24.150(c). We believe that the unique facts of this
case require a hearing to determine what custody disposition is
in the best interests of Mary Jean. Although, in general, it is
desirable to maintain continuity of care, see Morel v. Morel, 647
P.2d 605, 608 (Alaska 1982), Mary Jean has lived with both her
mother and father for extended periods. The trial court should
recognize that Mary Jean lived with her father for six and one-
half years having little or no contact with her mother and that
Dorthea removed Mary Jean from her father's care by deceptive
means. We emphasize, however, that this hearing should focus on
Mary Jean's interests. To this end, the court should ascertain
her preferences. AS 25.24.150(c)(3).
Because we find that Clyde is Mary Jean's legal
custodian, Dorthea has the burden of showing that substantial
reasons exist for changing custody and that such a change is in
the best interests of Mary Jean. See Garding v. Garding, 767
P.2d 183, 185 (Alaska 1989) (parent seeking modification of
custody decree must show substantial change in circumstances).
We REMAND this case to the superior court for further
proceedings consistent with this opinion.
1. Superior court Judge Elaine Andrews ordered a custody
evaluation and held a hearing on Clyde's motion to modify custody
in May 1989. At the hearing Clyde attempted to show that Dorthea
had voluntarily relinquished all her parental rights through the
testimony of the social worker who had been present at the
relinquishment. Judge Andrews stopped the hearing when she
realized that Clyde was attempting to prove termination of
parental rights by testamentary rather than documentary evidence
and sent the attorneys to look for the relinquishment document.
Once the relinquishment file was located, Judge Andrews ordered
2. Apparently, the court ordered Clyde's motion to modify
custody withdrawn without prejudice on November 1, 1990.
3. It is unclear why the superior court ruled that Clyde's
motion was not ripe for decision at the December hearing. We
have previously observed that the ripeness doctrine is designed
to prevent judicial review of abstract disagreements. Standard
Alaska Production Co. v. State, 773 P.2d 201, 210 n.14 (Alaska
1989). This is not such a dispute.