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C.R.B. v. C.C. (5/29/98), 959 P 2d 375
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.
THE SUPREME COURT OF THE STATE OF ALASKA
C.R.B., )
) Supreme Court Nos. S-8104/8323
Appellant/Cross-Appellee, )
) Superior Court No.
v. ) 3PA-93-268 CI
)
C.C. and B.C., ) O P I N I O N
)
Appellees/Cross-Appellants.) [No. 4993 - May 29, 1998]
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
Beverly W. Cutler, Judge.
Appearances: Kenneth Kirk, Anchorage, for
Appellant/Cross-Appellee. David A. Golter, Tull & Associates,
Palmer, for Appellees/Cross-Appellants.
Before: Matthews, Chief Justice, Compton,
Eastaugh, and Bryner, Justices. [Fabe, Justice, not
participating.]
COMPTON, Justice.
I. INTRODUCTION
Soon after their daughter Catherine's divorce, Carl and
Betty Clark [Fn. 1] took legal custody of Catherine's two sons
because of her drug addiction. That was three years ago. Roberto
B., the boys' father, now wants custody. He appeals the superior
court's denial without a hearing of his motion to modify custody.
The court held that his allegations, even if true, do not show a
substantial change of circumstances to warrant modification.
This case raises a novel question in an increasingly
important realm of family law -- custody disputes between parents
and nonparents. If a court has properly awarded permanent legal
custody to a nonparent after giving a parent notice and an
opportunity to be heard, and the parent later moves to modify
custody, must the parent make the same threshold showing of a
substantial change in circumstances as in a parent-parent case?
Because we conclude that the parent must make the same threshold
showing, and that the superior court did not err in finding that
Roberto had failed to do so, we affirm.
II. FACTS AND PROCEEDINGS
Roberto and Catherine wed in 1988. They had Peter in
March 1989 and Brian in February 1991. Catherine has been addicted
to cocaine since before the marriage. She and Roberto separated
from mid-1990 until late 1991, reunited for six months, and
separated finally in April 1992. That is the last time Roberto
lived with his sons. He moved from Anchorage to Seattle in
July 1992. He and Catherine were divorced in Anchorage in
December 1992.
The divorce decree gave Catherine custody of the boys,
but in March 1993 a drug-induced crisis led her parents, who live
in Palmer, to obtain interim custody and move for permanent custody
in the superior court there. The Clarks claimed not to know
Roberto's whereabouts; he disputes this. Roberto learned of the
Palmer custody proceedings in May 1993. He arranged to visit his
sons in July. The Clarks successfully moved the court to require
that the visit be supervised; they apparently argued that Roberto,
a foreign national, might flee the country with the boys.
In September 1993 Roberto married his current wife Penny.
In November 1993 he moved to modify the divorce decree to give him
custody. Between November 1993 and January 1994 he and the Clarks
engaged in motion practice, primarily concerning whether venue
should be in Anchorage or Palmer.
In early 1994 Roberto and Penny opened a restaurant, an
endeavor that seems to have taken much of their time and money
during the 1993 94 custody proceedings. In February 1994 Roberto
withdrew his motion for custody, saying that he had "reached a
satisfactory arrangement with the other party and [felt] no
particular need to carry this matter forward."
The superior court held a trial on the Clarks' motion for
permanent custody in December 1994; Roberto did not appear. The
court granted the Clarks sole legal and physical custody of Peter
and Brian in a January 1995 order based on substantial findings,
mostly about Catherine's unfitness. As for Roberto, the court
noted only his withdrawal from the case and failure to appear at
trial.
When the Clarks gained permanent custody, Roberto had not
seen his sons in eighteen months; he did not do so for fourteen
more months, until a March 1996 visit. [Fn. 2] He moved in May
1996 for a one-month summer visit. The Clarks opposed. The court
ordered a one-week visit.
Roberto moved in September 1996 to modify custody. He
argued that several changes in his circumstances warranted
modification: (1) he had become an American citizen; (2) his
marriage and business, both new in 1994, had grown stable and
successful; (3) he and Penny had bought a home in a Seattle suburb
well-suited for children; and (4) he had begun to rebuild relations
with his sons after three nearly incommunicado years. He also
suggested that the Clarks had developed health problems, and
claimed that they were impeding his relations with his sons. After
filing his motion, he learned that Betty Clark had been the subject
of a child-in-need-of-aid (CINA) investigation in 1980.
Roberto also sought to explain his withdrawal from the
1993 94 custody proceeding. He claimed that the Clarks had told
him that they only wanted temporary custody, and that he had not
realized that his custody rights -- as opposed to Catherine's --
were at risk. His counsel did not disabuse him of these
misconceptions, because "[w]hile I did have an attorney at the
time, because of my financial situation I did not keep in touch
with him." He filed a letter that he had written the court in
November 1994 (after he had withdrawn his custody motion, but
before the trial). "I still wish to gain custody and my visiting
[privileges],"he had written, but "I have not filed for custody
again as my budget cannot endure any more lawyer and court
fees. . . . I am not an absent[ee] parent . . . ."
The superior court dismissed Roberto's motion to modify
custody in February 1997. It did not hold a hearing. It did grant
him visitation, as scheduled in an April 1997 order. Roberto
appeals the denial without hearing of his motion to modify custody.
The Clarks cross-appeal the visitation order's requirement that
they pay half the airfare for Peter and Brian's visits with
Roberto.
III. DISCUSSION
A. Standards of Review
This case raises three questions regarding standards of
review. [Fn. 3] We discuss two of them -- concerning the court's
refusal to order the release of CINA records and its allocation of
visitation costs -- at the relevant junctures below. See infra
p. 19 n.19 and pp. 21-22. The third concerns our review of a
denial without hearing of a motion to modify custody. We will
normally overturn a custody determination only if the superior
court abused the broad discretion it is granted in such cases or
clearly erred in its factual findings. See, e.g., Hayes v. Hayes,
922 P.2d 896, 898 n.3 (Alaska 1996). In this case, though, the
court denied Roberto's motion to modify custody without a hearing.
A court may do so if it considers a motion and finds it "plain that
the facts alleged in the moving papers, even if established, would
not warrant a change [in custody]." Deivert v. Oseira, 628 P.2d
575, 578 (Alaska 1981). We have never addressed the question of
what standard of review we should apply to such denials. [Fn. 4]
Our requirement that the court treat "the facts alleged
in the moving papers"as "established"recalls the inquiry on a
motion to dismiss for failure to state a claim, in which a court
must review only the pleadings and treat all factual allegations as
true, and which we review de novo. See, e.g., Christiansen v.
Melinda, 857 P.2d 345, 346 n.2 (Alaska 1993). In Carter v.
Brodrick, 816 P.2d 202 (Alaska 1991), though, we applied Deivert
and held that a court had wrongly denied a motion to modify
visitation without a hearing, but we relied on facts in the
movant's "supporting affidavits,"indicating that the court should
have treated them as true. See id. at 204 05. This suggests, and
we now hold, that a court can deny a motion to modify custody or
visitation, without holding a hearing, based solely on the
pleadings or after considering material beyond the pleadings --
e.g., affidavits. The latter step makes its determination like a
summary judgment, which we also review de novo. See, e.g., Nielson
v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
We will thus review de novo denials without hearing of
motions to modify custody or visitation. [Fn. 5] We will affirm
if, in our independent judgment, the facts alleged, even if proved,
cannot warrant modification, or if the allegations are so general
or conclusory, and so convincingly refuted by competent evidence,
as to create no genuine issue of material fact requiring a hearing.
See Acevedo v. Burley, 944 P.2d 473, 475 (Alaska 1997) (reviewing
denial without hearing of motion to modify child support) (citing
Epperson v. Epperson, 835 P.2d 451, 453 & n.4 (Alaska 1992)).
B. A Parent Who Moves to Modify a Nonparent's Properly
Granted, Permanent Custody Must Show as Substantial a Change in
Circumstances as in a Parent-Parent Case.
Two foundational policies in child custody law collide in
this case: the law's preference for parental over nonparental
custody, and the law's desire to meet children's needs for
stability by requiring a substantial change in circumstances before
modifying custody. In a typical (parent-parent) case, a parent who
seeks a hearing on a motion to modify custody must allege facts
that, if proved, would establish a substantial change in
circumstances. See AS 25.20.110; Garding v. Garding, 767 P.2d 183,
184 85 (Alaska 1989); Deivert, 628 P.2d at 577 78.
Roberto concedes that he must show a "substantial change
in circumstances,"but argues that he need not show as substantial
a change as a parent seeking to modify another parent's custody.
[Fn. 6] He stresses the policy favoring parental custody: in an
initial custody determination, a parent is entitled to custody over
a nonparent unless the latter proves that the parent is unfit, or
that their custody would be "clearly detrimental to the child."
Carter v. Novotny, 779 P.2d 1195, 1197 (Alaska 1989) (citing Britt
v. Britt, 567 P.2d 308, 310 (Alaska 1977) and Turner v. Pannick,
540 P.2d 1051, 1055 (Alaska 1975)).
Roberto supports his claim by noting that a parent can
show a less substantial change to modify visitation. See
Hermosillo v. Hermosillo, 797 P.2d 1206, 1209 (Alaska 1990). A
change in visitation, though, is much less significant to a child
than a change in custody. Our lower standard in visitation cases
merely shows that we have different standards for different types
of modifications; Roberto offers no reason to view a change in
permanent custody like a change in visitation.
He also argues that a parent in his position deserves the
same right to a hearing as a parent who has lost custody in a CINA
case but claims to be rehabilitated. See Rita T. v. State, 623
P.2d 344, 346 47 (Alaska 1981). The Clarks reply that CINA cases
under Title 47 and custody cases under Title 25 are different
procedures, and that while the CINA statute stresses family
preservation, Title 25 focuses on meeting children's needs by
permanently placing them in stable homes.
The Clarks' argument is more persuasive. In the CINA
case Roberto cites, we noted that, once a child moves from State
custody to permanent adoptive placement, a parent's right to a
rehabilitation hearing ends. See Rita T., 623 P.2d at 347 & n.5
(citing AS 20.15.130(a)). While CINA laws do prioritize
reunification, see id. at 346 47, they also direct the State to
permanently place children whose parents' rights are terminated,
reflecting "a legislative intent that permanent homes be found for
the children so that [they can have] a stable family life." Id. at
347 (citing AS 47.10.080(c)(3)). While the Clarks have not adopted
Peter and Brian, and the State has not terminated Roberto's
parental rights, the same policy goals of stability and permanence
argue against automatically granting him a hearing.
Beyond his CINA analogy, Roberto relies on the parental
preference doctrine, which we have hitherto applied only to initial
custody determinations. [Fn. 7] See, e.g., Turner, 540 P.2d at
1055; Carter, 779 P.2d at 1197. We apply a parental preference to
avoid "the danger of giving courts the power to award custody . . .
to [nonparents] solely on the grounds of best interests. If [that]
is the only criterion, then a judge may take children from their
parents because the judge personally [disapproves of] the parents'
limited means."Turner, 540 P.2d at 1055; see also id. at 1054 55
(citing chilling example of Painter v. Bannister, 140 N.W.2d 152,
154 (Iowa 1966) (indicating disapproval of father's bohemian
lifestyle, despite evidence of his care and concern for child, and
giving grandparents custody on ground that their home provided "a
stable, conventional, middle-class, middlewest background")).
Justice Dimond noted in Turner that to let a court take a child
from its parents merely because a nonparent can better serve the
court's idea of the child's interests is "a step toward a
totalitarian government." Id. at 1055 56 (Dimond, J., concurring).
The parental preference avoids this danger by requiring
a nonparent not merely to prove by a preponderance of the evidence
that the nonparent can better serve a child's interests, but to
prove by "clear evidence"that a parent is unfit or that his or her
custody is clearly detrimental. Carter, 779 P.2d at 1197. We
apply this rule, like most courts, despite an inevitable sacrifice
of children's interests in cases where a nonparent can better serve
those interests, but a parent's custody is not "clearly
detrimental."[Fn. 8]
Such sacrifice is unnecessary where a court has granted
a nonparent custody after giving a parent notice and a chance to be
heard (and after applying Turner if the parent contested custody).
If such a parent later moves to modify custody, requiring that
parent to show a substantial change in circumstances does not skirt
the slope that leads to totalitarian social engineering. A
parental preference is a vital safeguard against enabling
nonparents to convince courts to remove children improperly from
their parents. Once a court has properly transferred custody from
a parent to a nonparent, it does no good to apply the doctrine to
weaken the substantial change requirement for modification. The
proceeding that gave the nonparent custody will have enabled the
parent to exercise the parental preference, and achieved the goal
that leads us to treat parent-nonparent cases differently from
other custody cases. Having once protected the parent's right to
custody, at the risk of sacrificing the child's best interests, we
should not then sacrifice the child's need for stability in its
care and living arrangements by modifying those arrangements more
readily than in a parent-parent case.
Our review of out-of-state cases [Fn. 9] suggests that
the modern rule is to impose the same changed-circumstances
requirements on parents who seek to modify a nonparent's court-
ordered, permanent custody as on parents who seek to modify
parental custody. [Fn. 10] A recent treatise suggests that this
is a majority rule, [Fn. 11] although it is not universal.
Compare, e.g., Shortt v. Lasswell, 765 S.W.2d 387 (Mo. App. 1989).
We thus hold, as a general rule, [Fn. 12] that a parent
moving to modify a nonparent's court-ordered, permanent custody
must show no less substantial a change in circumstances than a
parent in a typical case.
C. Roberto's Factual Allegations, Even if Proved, Cannot
Constitute a Substantial Change in Circumstances.
When a parent moves to modify custody, the court must
"consider"the motion, [Fn. 13] but need not hold a hearing "if it
is plain that the facts alleged in the moving papers, even if
established, would not warrant a change." Deivert, 628 P.2d at
578. The moving parent must show changes that affect the child's
welfare, see S.N.E. v. R.L.B., 699 P.2d 875, 878 & n.3 (Alaska
1985); reflect more than mere passage of time, see Nichols v.
Nichols, 516 P.2d 732, 734 n.3 (Alaska 1973); and overcome our deep
reluctance to shuttle children back and forth between parents. See
Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982) (citing Nichols,
516 P.2d at 735). [Fn. 14] That reluctance reflects our
"assumption that finality and certainty in custody matters are
critical to the child's emotional welfare." Id. at 82 83; see also
Buness v. Gillen, 781 P.2d 985, 989 & n.8 (Alaska 1989) (stressing
gravity of harm in parent-nonparent case if court severed child's
strong emotional bond with "psychological parent").
The parties have dissected Roberto's alleged changes.
Predictably, the Clarks dismiss the changes seriatim, while Roberto
argues that the court failed to view them as a whole. He is right
that a court must not analyze a series of parts one by one and
conclude that none satisfies a test meant to address the whole.
But in this case, the court did not do so. It rightly found that
many of his alleged changes are of no weight at all, and that the
sum of the rest falls short of being so substantial as to warrant
removing Peter and Brian from their home.
We first note changes of no weight. Roberto's new
citizenship is irrelevant, as it does not affect the children. [Fn.
15]
The Clarks' "medical problems"are illusory. Roberto
affied that it was his "understanding that [the Clarks] are having
medical problems,"and they counter-affied that Betty had suffered
cancer that is in remission and that Carl is well. Roberto argues
that the lack of a hearing kept him from developing this "issue."
A party seeking a hearing on a motion to modify cannot
rest on a generalized allegation if "other record evidence
convincingly refutes"it. Acevedo, 944 P.2d at 475. Movants must
indicate that they can produce admissible evidence of specific
facts rebutting that evidence. See, e.g., Howarth v. First Nat'l
Bank of Anchorage, 540 P.2d 486, 489 90 (1975); see also Alaska R.
Civ. P. 56(e) ("[A]ffidavits shall be made on personal knowledge
. . . ."); Broderick v. King's Way Assembly of God, 808 P.2d 1211,
1218 (Alaska 1991) ("[I]nadmissible hearsay assertions in an
affidavit cannot be used . . . to oppose . . . summary judgment.").
The Clarks' affidavits refuted Roberto's vague hearsay claim. He
alleged no specific facts in reply that would make their health a
salient issue. The court was right to disregard the issue.
Roberto alleges that the Clarks have interfered with his
relationship with his sons. But as the court noted, the alleged
"interference"mainly comprises objections to Roberto's visitation
motions that the Clarks had a legal right to make. Roberto notes
his "inability to obtain reasonable visitation through negotiation
with the [Clarks],"which prompted this litigation. Given his
original withdrawal from the case, though, the court did not
premise the Clarks' custody on an assumption that they and Roberto
would informally arrange a mutually satisfactory visitation
schedule. Compare Siekawitch v. Siekawitch, ___ P.2d ___, Op. No.
4966 at 8 9 (Alaska, April 10, 1998) (finding change in
circumstances where parties' express prediction in dissolution
petition that they could "amicably decide in the future on
reasonable visitation times"proved incorrect). Roberto accuses
the Clarks of "not attempting to encourage the relationship,"but
the custody award did not presume that they would.
The Clarks, perhaps implicitly admitting some antipathy,
cogently deny any change in their attitude or behavior. Reading
the entire record in the light most favorable to Roberto, one can
infer some antipathy on their part to his new paternal involvement.
Such antipathy, if proved, would be a factor in a best-interests
inquiry. See AS 25.24.150(c)(6). But merely noting that unchanged
antipathy, which has not led them to undermine any assumption of
the original custody award, cannot help Roberto show a substantial
change in circumstances and thus require the court to conduct a
best-interests inquiry. The court sensibly accommodated the new
circumstance of his desire to be a parent by ordering visitation.
[Fn. 16]
The remaining changes are Roberto's purchase of a home
and resumed contact with his sons, the stabilization of his new
marriage and business, and the discovery that Betty Clark had
undergone a CINA investigation. [Fn. 17]
The first two are good steps towards readiness for
custody but not sufficient to warrant a change. As for the third,
Roberto argues that the court erred when it completely discounted
his new marriage and business on the ground that those changes had
already occurred by the time of the custody trial. He argues that
those developments were new and uncertain then but are stable now.
That is a plausible way to characterize the facts. [Fn. 18] We
have said that, while "[m]ere passage of time . . . is not of
itself a change in circumstances sufficient to support
modification"of custody, "[t]he passage of time as it affects the
relationships of parties may bear relevance to a change of
custody." Nichols v. Nichols, 516 P.2d at 734 n.3.
Roberto's new marriage and business both do predate the
custody decision. That decision, moreover, did not rest in any way
on a concern that either change was unstable in its novelty. Their
maturation, then, is relevant, but not controlling. The sum of
that maturation, Roberto's purchase of a new home, and his resumed
contact with his sons falls short of the sort of comprehensive
lifestyle change that warranted modification in Nichols v.
Mandelin, 790 P.2d 1367 (Alaska 1990). In Mandelin, which
established that unilateral improvements can constitute a
substantial change, the mother had remarried and become employed
since the original decision and, unlike Roberto, she was an
alcoholic, but had finally learned to manage her illness. See id.
at 1372 & nn.12 15.
Beyond the above unilateral changes, Roberto argues that
the denial of his motion for access to records of the 1980 CINA
investigation kept him from developing that issue, which concerns
the Clarks' fitness. They concede that the State investigated
Betty and that abuse was alleged; their counsel alluded to the
court's "aware[ness] of [Catherine]'s claims that she was
mistreated by her mother."
The CINA statute and rules make CINA records
confidential, but authorize courts to "order their use for good
cause shown." AS 47.10.090(c); see CINA Rule 22 (similar). [Fn.
19] The 1980 CINA case was remote in time when Roberto made his
motion, and he has not alleged any current abuse or neglect, any
pattern of abuse, or, indeed, any abuse after 1980. The 1980 case
thus seems a closed episode with no likely connection to the
question of Peter and Brian's present custody. While it might have
been more prudent to inspect the records in camera than to dismiss
Roberto's motion outright, we cannot say that the court abused its
discretion in taking the latter course.
It follows that Roberto's allegations about the 1980 case
are too speculative to contribute significantly to showing a
substantial change of circumstances today. While any suggestion of
past child abuse may be disturbing, Roberto has not specifically,
affirmatively alleged that any serious abuse did occur in 1980, and
there is not even a hint that any such hypothetical abuse has
recurred with Peter and Brian. The bare fact that the State
initiated a CINA investigation eighteen years ago is of very slight
weight in determining Peter and Brian's custody today.
We conclude that the CINA investigation, the deepened
stability of Roberto's new marriage and business, his new home, and
his resumed contact with his sons do not constitute a substantial
change in circumstances warranting a hearing on modification. [Fn.
20]
D. The Court Did Not Abuse Its Discretion in Ordering the
Clarks to Pay Half the Airfare for the Boys to Visit Roberto.
In its order denying Roberto's motion to modify custody,
the court "encourage[d] [his] interest in becoming a more active
parent, and recognize[d] that it also is very important for the
children to have a strong bond with their natural father." It
ordered twice-yearly visits, required an escort for the boys'
flights to Seattle in 1997 98, and ordered the Clarks to pay half
of the children's and escort's airfare. The Clarks moved the court
to reconsider the last provision. The court declined, noting the
absence of authority on the issue and finding, "in balancing the
equities of the situation, [that] this cost is properly shared"by
the Clarks and Roberto. The court also found that having the
Clarks share the cost will make the visits more likely to occur,
since two visits per year "might be prohibitively expensive"for
Roberto alone. [Fn. 21]
The Clarks cross-appeal. They argue that, while a parent
has a general duty to support its child and can be charged with a
specific duty to pay travel costs for visits with a noncustodial
parent, grandparents have no duty to support their grandchildren
and, absent specific authority, a court cannot order them to pay
travel costs.
Civil Rule 90.3(g) authorizes a court that has awarded
child support to "allocate reasonable travel expenses . . .
necessary to exercise visitation between the parties as may be just
and proper for them to contribute." Roberto and the Clarks are
parties to a child support award, so the rule gave the court
discretion to allocate expenses between them under a broad "as may
be just and proper"standard.
We have never set a standard for reviewing such
allocations, but have suggested that we would review for abuse of
discretion [Fn. 22] and -- absent a persuasive argument to the
contrary [Fn. 23] -- will do so now.
While grandparents generally have no duty to support
their grandchildren, the court was right to note that the Clarks
are atypical grandparents. It is odd for them to argue "as
grandparents"that they have no duty to support Peter and Brian;
the court ordered them to pay not in their generic capacity as
grandparents, but in their specific role as the boys' permanent
legal custodians -- a role that they fought in this proceeding to
retain. They argue that they "have voluntarily undertaken to
provide for the children,"and that it is inequitable to "forc[e]
them to also shoulder expenses of [Roberto]'s visits with"the
boys. But they have not just voluntarily undertaken to provide for
whichever of the boys' needs they choose; they have obtained legal
custody of Peter and Brian and must provide for all of their needs.
[Fn. 24] In accord with the public policy favoring visitation with
noncustodial parents, [Fn. 25] the court found it among the
children's needs "to have a strong bond with their natural father."
The court did not abuse its discretion in requiring the Clarks, as
Peter and Brian's legal custodians, to pay half the costs of
meeting that need. [Fn. 26]
IV. CONCLUSION
In Roberto's appeal, S 8104, we AFFIRM the denial without
a hearing of his motion to modify custody. In the Clarks' cross-
appeal, S 8323, we AFFIRM that part of the visitation order that
requires them to pay half the cost of flying Peter and Brian to
Seattle to visit their father.
FOOTNOTES
Footnote 1:
We use pseudonyms throughout this opinion.
Footnote 2:
Carl Clark said this in an affidavit; the Clarks' brief
reiterates it; and Roberto has not disputed it.
Footnote 3:
The question of what changed-circumstances standard applies to
a motion to modify nonparental custody is of course a question of
law that we decide de novo, adopting the most persuasive rule of
law in light of precedent, policy, and reason. See Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 4:
We have reviewed denials without hearing of motions to
modify custody or visitation for abuse of discretion without
discussing why we did so. See Acevedo v. Liberty, ___ P.2d ___,
Op. No. 4964 at 4 (Alaska, April 10, 1998); Nelson v. Jones, 944
P.2d 476, 478 (Alaska 1997); Carter v. Brodrick, 816 P.2d 202, 205
(Alaska 1991); Deivert v. Oseira, 628 P.2d 575, 577 78 (Alaska
1981).
Footnote 5:
This parallels the approach that we announced last year for
denials without hearing of motions to modify child support. See
Acevedo v. Burley, 944 P.2d 473, 476 n.2 (Alaska 1997) ("For
purposes of determining the standard of review . . . we draw
analogy to review of summary judgment decisions. . . . [W]e review
the . . . decision using our independent judgment.").
Footnote 6:
In 1982 the legislature amended the custody law to expressly
require a "change in circumstances"to modify custody, codifying
this court's rule. See Garding v. Garding, 767 P.2d 183, 185
(Alaska 1989) (discussing AS 25.20.110). Both before and since the
codification, we have in fact required a "substantial change in
circumstances." See, e.g., id. (discussing cases before and after
codification and requiring "substantial change,"though
AS 25.20.110 does not say "substantial") (emphasis added).
Footnote 7:
Roberto also argues that, once he shows a substantial
change in circumstances, he need not bear the further burden of
showing that modification will best serve Peter and Brian's
interests, as he would in a parent-parent case. See AS 25.20.110;
Garding, 767 P.2d at 184 85. If he shows a substantial change, he
argues, then the court must give him custody unless it finds that
to do so would be "clearly detrimental"to the children, as in an
initial custody dispute involving a nonparent. See Turner v.
Pannick, 540 P.2d 1051, 1055 (Alaska 1975). (Presumably, the
Clarks would bear the burden of showing clear detriment. See id.)
Because we conclude that he has not shown a substantial change, we
need not decide whether to apply Turner, or the usual best-
interests standard, in a parent-nonparent case in which a parent
does surmount the substantial-change threshold.
Footnote 8:
See generally Adrienne E. Volenik (Maris Warfman, 1996
update), "Disputes Between Parents and Third Parties,"in 2 Child
Custody & Visitation Law and Practice sec.sec. 11.01 & 11.03, at
11 3 to
4 & 11 6 to 7 (John P. McCahey et al. eds., 1997).
Footnote 9:
The parties cite no out-of-state case or treatise, though they
agree that this issue is one of first impression in Alaska, and
though other states have resolved it. While a focus on Alaskan
cases is appropriate, and while a state-by-state survey is not
necessary or advisable, it does help us frame our inquiry in a case
of first impression if the parties at least note leading cases or
treatises and the trend in other states regarding the novel issue.
Footnote 10:
See, e.g., Ex Parte McClendon, 455 So.2d 863, 865 66 (Ala.
1984); Jones v. Strauser, 585 S.W.2d 931, 932 (Ark. 1979); Bivens
v. Cottle, 462 S.E.2d 829, 830 31 (N.C. App. 1995); In re Whiting,
590 N.E.2d 859, 861 62 (Ohio App. 1990); Johnson v. Johnson, 681
P.2d 78, 80 81 (Okla. 1984); Lear v. Lear, 863 P.2d 482, 484 (Or.
App. 1993); Taylor v. Meek, 276 S.W.2d 787, 789 90 (Tex. 1955)
(reaffirmed after amendment of custody statute in In re Ferguson,
927 S.W.2d 766, 768 69 (Tex. App. 1996)); Dyer v. Howell, 184
S.E.2d 789, 792 (Va. 1971); see generally Carol Crocca, Annotation,
Continuity of Residence as Factor in Contest Between Parent and
Nonparent For Custody of Child Who Has Been Residing With
Nonparent Modern Status, 15 A.L.R. 5th 692, 807 14 (1990)
(collecting cases "in which parents were required to prove a
material change in circumstances and/or that modification of
custody would materially promote the welfare of the children").
Footnote 11:
See Volenik (Warfman, 1996 update), supra note 8,
sec. 11.03[2][b], at 11 10 to 11.
Footnote 12:
We do not hereby disfavor the practice of vesting custody
temporarily in a nonparent until a parent can get his or her life
sufficiently together to resume custody. See, e.g., Britt v.
Britt, 567 P.2d 308, 309 10 (Alaska 1977); Bass v. Bass, 437 P.2d
324, 326 27 (Alaska 1968) (specifically approving practice).
Courts should make clear whether a grant of nonparental custody is
temporary or permanent, and ensure that they carefully warn a
parent that a hearing may have the latter result. Parents can
regain custody in a temporary-custody case without showing a
substantial change in circumstances, and can rely on the Turner
preference. See Britt, 567 P.2d at 310.
We also do not decide when, if ever, a parent who has
informally agreed to or acquiesced in nonparental custody, without
a court order, must show a substantial change to regain custody.
Cf. Turner, 540 P.2d at 1052, 1055 (noting but not resolving
dispute over whether agreement to let nonparent care for child was
temporary or permanent, applying standard for initial custody
contest, and not requiring substantial change).
Britt, Bass, and Turner differ critically from this case:
none involved an order giving a nonparent permanent legal custody.
The court here did not explicitly or implicitly treat the Clarks'
custody as a temporary step until Roberto could resume custody.
Footnote 13:
The trial judge's long, thoughtful orders leave no doubt
that she considered all of Roberto's arguments.
Footnote 14:
The parties dispute whether a parent can surmount the
"substantial change"threshold by showing unilateral improvement in
his or her own situation. In 1989 we said that a parent cannot:
"'mere improvement in the position of one of the parties is not
sufficient to justify a change in custody.'" Garding, 767 P.2d at
186 (quoting Gratrix v. Gratrix, 652 P.2d 76, 83 (Alaska 1982) and
citing Nichols v. Nichols, 516 P.2d 732 (Alaska 1973)). But we
have since made clear that the rule is not per se. See Nichols v.
Mandelin, 790 P.2d 1367, 1372 & n.15 (Alaska 1990) (distinguishing
Garding and Gratrix and saying that those opinions do not "preclude
a trial court from finding that significant long[-]term changes in
a party's lifestyle could constitute a substantial change in
circumstances").
Roberto's allegations cannot show a substantial change
even if we view unilateral improvements no differently than changes
in a custodian's circumstances. We thus need not decide to what
degree, if any, we still disfavor reliance on unilateral
improvement to show a substantial change in circumstances.
Footnote 15:
The record only shows the citizenship issue having arisen in
1993, when Roberto, then a foreign national, visited his sons, and
the Clarks insisted that the visit be supervised. They apparently
argued that he might flee the country with the boys. His new
citizenship could thus be relevant to a motion to allow
unsupervised visitation, but the court's order already grants that.
Roberto has not explained how his new citizenship is relevant to
custody.
Footnote 16:
By denying a custody hearing and scheduling visitation, the
court implicitly premised the Clarks' continued custody on their
noninterference with the scheduled visitation. If they do
materially interfere, that may well constitute a substantial change
in the circumstances surrounding the orders that now govern
custody; an assumption that the Clarks will respect the letter and
spirit of the visitation order is now one of those circumstances.
Footnote 17:
The Clarks argue that a 1980 CINA case cannot constitute
a "change in circumstances"since a 1994 trial, but it would be
deplorably formalistic to ignore new evidence of dire unfitness
merely because the evidence happened to exist -- unknown to the
court -- at the time of trial. The majority view is that a court
can modify custody "if the child's welfare requires it, not only
for changes in circumstances occurring after the initial decree,
but also on the ground of facts existing at the time of that decree
[but] . . . not presented to or known by the court [that] issued
that decree." 2 Homer H. Clark, Jr., The Law of Domestic Relations
in the United States: Practitioner's Ed. sec. 20.9, at 551 & n.33
(2d
ed. 1987). Professor Clark doubts that even courts who only
consider changes that occur after an order would refuse to look at
"events occurring before . . . if [they] tended to show a
probability of serious physical or emotional harm to the child."
Id. at 550 51 & n.30 (citing Valencia v. Valencia, 375 N.E.2d 98
(Ill. 1978), where court, in giving mother custody, had been
unaware that man living with her had history of child abuse).
Footnote 18:
Since our review is analogous to our review of a summary
judgment, see supra at 6-7, we note that Roberto's characterization
of the facts probably falls within the rule that a court
considering a summary judgment "must view the facts in the light
most favorable to the non-moving party." Mathis v. Sauser, 942
P.2d 1117, 1120 (Alaska 1997).
Footnote 19:
We have not set a standard of review for decisions on whether
to disclose CINA records, but we have referred to the decision as
discretionary. See Matter of A.B., 791 P.2d 615, 620 n.7 (Alaska
1990) ("[C]ourts have discretion to order records disclosed in a
[CINA] proceeding."). As with other discovery orders made under
"good cause"standards, we will review decisions about releasing
CINA records for abuse of discretion. See Novak v. Orca Oil Co.,
875 P.2d 756, 761 63 (Alaska 1994) (reviewing for abuse of
discretion an order granting access to investigative files that
statute made confidential "unless otherwise ordered . . . for good
cause shown"); Dingeman v. Dingeman, 865 P.2d 94, 99 (Alaska 1993)
(same for finding of "good cause"to order medical examination
under Civil Rule 35). See also Cockerham v. State, 933 P.2d 537,
539 n.9 (Alaska 1997) ("[W]e generally review rulings on discovery
for an abuse of discretion.") (citing Gunnerud v. State, 611 P.2d
69, 72-73 (Alaska 1980)).
Footnote 20:
We note that nothing bars Roberto from again moving for
custody based on a future change in circumstances that is
substantial.
Footnote 21:
The Clarks do not challenge this factual finding.
Footnote 22:
See Nass v. Seaton, 904 P.2d 412, 419 (Alaska 1995) (noting
court's "discretion to allocate travel expenses among the parties";
posing issue of whether court "abused its discretion in allocating
visitation[-]related expenses"; but declining to resolve issue,
given decision to remand on other grounds); cf. Gallant v. Gallant,
882 P.2d 1252, 1257 (Alaska 1994) (reviewing for abuse of
discretion a creative calculation of child support in a case
involving nonparental custody).
Footnote 23:
The Clarks argue that whether a court can order
grandparents to support a grandchild is a legal question that we
must review de novo. This is true in general, but is not relevant
here, as we treat the court as having ordered them to pay travel
costs not as grandparents, but as parties to a child support order,
who are subject under Civil Rule 90.3(g) to the court's authority
to divide travel costs between them and the other party to the
order "as may be just and proper."
Footnote 24:
See, e.g., 1 Clark, supra note 17, sec. 7.2, at 443
(noting
that one owes common-law duty of support if one takes child into
family and acts in loco parentis); cf. 2 Jeff Atkinson, Modern
Child Custody Practice sec. 10.32, at 536 (1986) (discussing cases
equitably obliging stepparents to support children and noting that,
if stepparent obtains legal custody, "presumably the grant of
custody carries with it a duty to support").
A divided Alabama Supreme Court held that even after a
grandfather stopped acting in loco parentis to his grandchild -- by
divorcing the grandmother, who retained custody -- he still had "a
legal duty to support [the child] that ar[ose] from the legal
custody of the child that he [had] sought and obtained in the
juvenile court." Ex parte Lipscomb, 660 So.2d 986, 988 89 (Ala.
1994). It would be strange if a child's permanent legal
custodian(s) did not have such a duty, at least while they retained
custody; otherwise a grant of custody to a nonparent would leave a
child with no one in its home legally obliged to support it. Cf.
Gowland v. Martin, 520 P.2d 1172, 1175 (Ariz. App. 1974) (affirming
grant of custody to maternal grandparents -- rather than to
teenaged father, whose parents planned to help him raise the child
-- because granting the father custody would not legally oblige his
parents to support the child, while giving the maternal
grandparents custody did "place[] a legal obligation upon [them] to
support and raise the child,"and court preferred to rely on legal
duty to ensure ongoing support).
Footnote 25:
See Ch. 88, sec. 1, SLA 1982 (stating legislative finding
in
enacting AS 25.20.060, which governs visitation, "that it is
generally desirable to assure a minor child frequent and continuing
contact with both parents after [divorce]").
Footnote 26:
The court also stated, and the Clarks vigorously protest,
an alternate rationale that its order will "facilitat[e]
[Catherine's] indirect financial support of visitation"because
"[t]he court intends that some of the child support collected by
the [Clarks] from [Catherine] . . . offset the travel costs."
Given the adequacy of the rationale set forth above, we need not
address the validity of this alternate rationale or of the implicit
factual findings supporting it.
