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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. West v West (4/27/01) sp-5394

West v West (4/27/01) sp-5394

     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.


MARLENE M. WEST,              )
                              )    Supreme Court No. S-9666
               Appellant,     )
                              )    Superior Court No.
          v.                  )    3KO-99-273 CI
BRIAN S. WEST,                )    O P I N I O N
               Appellee.      )    [No. 5394 - April 27, 2001]

          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Kodiak,
                    Donald D. Hopwood, Judge.

          Appearances: Steve W. Cole, Gray, Cole & Razo,
P.C., Kodiak, for Appellant.  D. Scott Dattan, Law Office of D.
Scott Dattan, Anchorage, for Appellee.

          Before:  Fabe, Chief Justice, Eastaugh,
          Bryner, and Carpeneti, Justices. [Matthews,
Justice, not participating.]

          BRYNER, Justice.

          The court presiding over Marlene and Brian West's divorce
gave Brian primary custody of the Wests' son Cody; the court based
its decision primarily on Brian's anticipated remarriage, which,
the court found, would offer Cody the benefit of a "two-parent
household."  We reverse, holding that custody awards may not be
based on the assumption that a divorced parent who remarries can
provide a better home than an otherwise equally competent parent
who remains single. 
          Marlene and Brian separated after seven years of
marriage.  Upon separation Marlene moved to Oregon with two teenage
children from a previous marriage, Heather and Gene.  At first
Marlene and Brian's young son Cody remained with Brian in Kodiak so
that Brian could retain his Coast Guard housing.  Cody later moved
back and forth between his parents' homes every several months.  At
the time of trial, Cody was enrolled in kindergarten and living in
Oregon with Marlene and her sixteen-year-old daughter Heather. 
          In Oregon Marlene's job required her to leave home early
in the morning.  Heather was responsible for getting Cody ready and
riding the bus with him to school.  Marlene was usually back from
work by the time Cody returned home in the afternoon.  Heather had
two years left before graduating from high school; if she moved
away from home after her graduation, Marlene planned to leave Cody
with his nearby grandparents on school mornings so that they could
get him ready for school.
          At the time of trial, Brian lived in Coast Guard housing
in Kodiak.  He was involved in a romantic relationship with Anne
Marie Gould, a nurse who lived in Anchorage.  Brian and Anne Marie
hoped to marry but were reluctant to make definite plans before
Brian's divorce became final.  Brian expected to remain in Kodiak
until July 2001 and then request a transfer to Sacramento.  He
could not predict his duty locations, other than to say that they
would not be outside of the United States.
          The evidence at trial included a child custody report
describing the family's history and current circumstances and
briefly discussing statutorily relevant factors.  For the most
part, the custody investigator's comments about both parents were
equally positive, and she concluded that joint legal custody seemed
like a viable option.  Under the heading "violence, abuse and
neglect," the investigator reported that Marlene expressed "concern
[that Brian] may verbally abuse Cody in the future, based on his
behavior towards her other children."  But the investigator noted
that there was no indication that Brian had ever verbally abused
Cody and that it "does not seem reasonable to conclude that child
abuse is a factor in this case."
          The factor that the investigator discussed at greatest
length was the amount of time that Cody had lived in a stable,
satisfactory environment and the desirability of maintaining
continuity.  The investigator commented that Cody could flourish in
either home and that, if it were not for the physical distance
between Marlene and Brian, she would recommend shared physical
custody.  She observed that there had been little continuity in
Cody's life since his parents' separation.  The investigator
suggested it would be best for Cody to spend the entire school year
in one location.  Ultimately, the fact that Heather lived with
Marlene and that Marlene's extended family lived near her in Oregon
formed the basis for the investigator's recommendation that Cody be
placed primarily with Marlene and permitted to visit with Brian as
much as possible.
          At the close of trial the court commented on the
investigator's report, which it generally adopted.  The court then
made oral findings and concluded that it would be in Cody's best
interest for Brian to have primary physical custody after the
school year ended.  The court began with observations about the
quality of parenting that both Marlene and Brian could provide to
Cody.  It observed that both parents had spent extensive time with
Cody.  The court addressed Marlene's concerns about Brian's
parenting and, like the custody investigator, concluded that abuse
was not a significant factor.  Aside from the discussion of alleged
verbal abuse, the trial court's only mention of Cody's siblings was
a remark that Heather would graduate in a couple of years.
          The court identified differences in the immediate
households as important.  The court described the situation as
               It's likely that Brian will remarry Anne
Marie Gould, and she has long-term stability in the nursing field;
about 12 years.  And that's a situation that, I think, is very
positive because of the number of adults it provides in a household
for child-rearing.  It's likely that's going to happen.  I think
highly likely in the near future.  And that there would be two
adults in that household, part of the immediate family, that would
be available most of the time.

               . . . .

               Brian might be subject to deployments as
part of his military duties. . . . If it happens, it seems to me
that Ms. Gould, who likely would be his wife by then, would be in
the household to care for Cody.
          The trial court later issued written findings of fact and
conclusions of law.  The court observed that both Marlene and Brian
"provide positive environments and living arrangements" and that
one was not necessarily better than the other.  However, the court
               14.  Brian West and Anne Marie Gould plan
to get married. Her background as a nurse is a positive factor
which adds to the advantages for Cody in a two-parent household
when he is with Mr. West. 

               15.  The significant difference between
the parties is in what is ahead and the kind of household provided
for Cody. Brian's household will be the better one for Cody's

The written findings did not mention Heather.
          The court's conclusions of law stated that it would be in
Cody's best interest for primary physical custody to be awarded to
Brian once Cody completed the school year.  The court went on to
establish visitation and child support obligations for Marlene. 
          On appeal Marlene argues that the trial court abused its
discretion by using improper factors to determine Cody's best
interests.  In particular, Marlene argues that it was improper to
award Brian primary physical custody of Cody based on his
anticipated remarriage.  Marlene also argues that the trial court
improperly failed to take into account three factors -- Cody's bond
with Heather, the disruptiveness of Brian's likely continued
relocation, and allegations that Brian had verbally abused
Marlene's two older children -- which might have supported a
determination that it would be in Cody's best interest to live with
Marlene.  Finally, Marlene asks that we vacate the child support
order if we reverse the child custody order.
     A.   Standard of Review
          We will reverse a trial court's custody determination if
critical factual findings were clearly erroneous or if there has
been an abuse of discretion. [Fn. 1]  We will set aside a finding
as clearly erroneous if a review of the entire record leaves us
firmly convinced that a mistake has been made. [Fn. 2]  It is an
abuse of discretion to consider improper factors, to fail to
consider relevant statutory factors, or to assign disproportionate
weight to some factors while ignoring others. [Fn. 3]  When a
custody determination has been made based on improper factors, we
remand for a decision based on proper factors. [Fn. 4]
     B.   The Award of Primary Physical Custody on the Basis of
Anticipated Remarriage Was Improper.

          Custody determinations must be based on the best
interests of the child as determined using the factors listed in
AS 25.24.150(c). [Fn. 5]  The trial court must consider each of
these factors, but it is only required to discuss relevant factors
in explaining its decision. [Fn. 6]  Pertinent factors other than
the eight specifically listed in the statute can be considered if
they are relevant to determining the best interests of the child.
[Fn. 7]  
          Here, the trial court determined in its written findings
that both Brian and Marlene are excellent parents and that only
physical distance and Cody's need to attend one school precluded
shared physical custody.  The court observed that, although Brian
and Marlene differed in their parenting styles, both parents had
spent equal time with Cody and both had support networks available
to them.  The court indicated that there had been no child abuse
and that complaints about visitation were not significant.  The
court also found that both Marlene and Brian "provide[d] positive
environments and living arrangements" and that there was no
evidence that Cody would be better off with Brian than with
          Finding all these factors essentially equal, the trial
court proceeded to award primary physical custody of Cody to Brian
based on the benefits of "a two-parent household":
               Brian West and Anne Marie Gould plan to
get married. Her background as a nurse is a positive factor which
adds to the advantages for Cody in a two-parent household when he
is with Mr. West.
               The significant difference between the
parties is in what is ahead and the kind of household provided for
Cody. Brian's household will be the better one for Cody's future. 

In the court's view, then, Brian's plan to marry Anne Marie, who
would provide a "two-parent household," gave him the advantage over
Marlene, who would continue to work and had no plans to remarry.  
          Other states have addressed the question of whether a
court's ruling on custody in a divorce proceeding may rest on the
assumption that a working parent who remarries will be able to
provide superior care to the care provided by a single working
parent.  We agree with the well-reasoned decisions of other courts
concluding that the presumed advantages of a two-parent household
ordinarily should not determine an award of custody. [Fn. 8] 
          When awarding custody, the superior court is charged with
determining the arrangement that will serve the best interest of
the child in the specific case at hand.  A child custody
determination "cannot be based on an assumption, unsupported by
scientific evidence, that a working mother cannot provide such
care." [Fn. 9]  Such an assumption unfairly forces divorcing
spouses to choose between parenthood and livelihood; and it is
likely to disproportionately deprive women of custody, since
statistics indicate that divorced men are more likely to remarry a
spouse who does not work outside the home. [Fn. 10]
          The trial court expressed concern in its oral findings
that, once Heather graduated from school and moved away from home,
Marlene would need to drop Cody off at his grandparents' home to
get ready for school.  The court believed that this routine would
be disruptive in comparison to the continuity of care that Cody
would receive in the two-parent setting of Brian's home once Brian
          But the court's concern rests largely on its unexplained
assumption that the added physical convenience of in-home care that
Cody might receive from his new second parent -- Anne Marie Gould
-- would outweigh the less tangible, but potentially vital
emotional benefits he might receive by maintaining his close and
already-established ties to Heather and his maternal grandparents. 
As other courts have observed, determining which parent can better
meet the needs of a child in circumstances like these requires more
than "rudimentary hour-counting" or reliance on an assumption that
babysitters or extended family are less desirable care givers than
stepparents. [Fn. 11]
          A presumptive preference for in-home care by a new second
parent implicitly treats parenthood as a fungible service, ignores
potential stresses associated with stepfamilies, and runs counter
to recent scientific evidence. [Fn. 12]  A court may certainly give
custodial preference to a two-parent household when case-specific
evidence points to the conclusion that the second adult custodian
would be advantageous under the particular circumstances actually
presented.  But in our view, a presumptive preference for the two-
parent setting is unwarranted.  We thus conclude that, absent case-
specific evidence indicating that Anne Marie Gould's in-home care
would be of superior benefit to Cody than the care he would receive
from his grandparents and sister, Cody's custody should not have
been determined by an expressed preference for the advantages of a
"two-parent household." 
          We turn, then, to the evidence presented at trial.  Our
review of the trial record reveals no case-specific basis for
concluding that Cody's care in Brian's proposed two-parent
household would be superior to the care that he would receive in
the single-parent setting of his home with Marlene.  
          The record certainly contains substantial evidence
indicating that Brian and Anne Marie could provide excellent care.
[Fn. 13]  But comparable evidence -- accepted by the trial court --
indicated that Cody would also receive excellent care from Marlene,
Heather, and his maternal grandparents.  What the record lacks,
however, is specific evidence establishing which of the two
possible home settings -- a single-parent or two-parent household
-- would actually be better for Cody.  Nor did the trial court
appear to see a need for such evidence.  As shown in its written
findings, the court simply assumed, all other things being equal,
that the "two-parent household" should have the advantage, because
it offered Cody more time for in-home care.
          As we have already indicated above, this is an unfounded
assumption.  Child custody orders must be based on the best
interests of the particular child.  Here, we find no sound, case-
specific evidentiary basis for concluding that the qualitative
benefits of extended-family care that would have been available to
Cody with Marlene should be deemed less desirable than the improved
physical convenience of the in-home stepparenting that he might
experience with Brian.  Accordingly, we conclude that it was
improper to award primary physical custody of Cody to Brian on the
basis of Brian's anticipated marriage to Anne Marie.
     C.   Other Issues
          Marlene separately argues that the trial court abused its
discretion by failing to award custody to her based on sibling
bonds, the disruptiveness of Brian's likely future relocations, and
allegations that Brian abused the older children.  But given our
decision to remand this case for a redetermination of custody, we
need not consider these issues here. [Fn. 14]  Marlene will have
the opportunity to present these arguments to the trial court on
remand. [Fn. 15]  We assume that the court will carefully
reconsider them, among all other factors relevant to its
determination of Cody's current best interests.
          Because it was error to award primary physical custody of
Cody to Brian on the basis of his anticipated marriage to Anne
Marie, we VACATE the trial court's custody order and REMAND for a
redetermination of custody based on Cody's current best interests.


Footnote 1:

     See R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000).

Footnote 2:

     See City of Hydaburg v. Hydaburg Co-op. Ass'n, 858 P.2d 1131,
1135 (Alaska 1993).

Footnote 3:

     See Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska

Footnote 4:

     See Lowdermilk v. Lowdermilk, 825 P.2d 874, 878-79 (Alaska
1992).  Cf. Johnson v. Johnson, 564 P.2d 71, 74 (Alaska 1977).

Footnote 5:

     The statutory factors are:

               (1)  the physical, emotional, mental,
          religious, and social needs of the child;
               (2)  the capability and desire of each
parent to meet these needs;
               (3)  the child's preference if the child
is of sufficient age and capacity to form a preference;
               (4)  the love and affection existing
between the child and each parent;
               (5)  the length of time the child has
lived in a stable, satisfactory environment and the desirability of
maintaining continuity;
               (6)  the desire and ability of each
parent to allow an open and loving frequent relationship between
the child and the other parent;
               (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;
               (9)  other factors that the court
considers pertinent.

AS 25.24.150(c).

Footnote 6:

     See Park v. Park, 986 P.2d 205, 207 (Alaska 1999).

Footnote 7:

     See AS 25.24.150(c)(9); see also Evans v. Evans, 869 P.2d 478,
481-82 (Alaska 1994) (affirming custody determination made on basis
of non-statutory factors when parents were equally qualified to
care for child in all other respects). 

Footnote 8:

     See Burchard v. Garay, 724 P.2d 486, 492 (Cal. 1986) ("The
essence of the court's decision is simply that care by a mother
who, because of work and study, must entrust the child to daycare
centers and babysitters, is per se inferior to care by a father who
also works, but can leave the child with a stepmother at home. . .
.  [T]his reasoning is not a suitable basis for a custody order.");
Wellman v. Dutch, 604 N.Y.S.2d 381, 383 (N.Y. App. Div. 1993)
("[T]he court's award of custody to petitioner principally because
his spouse would be home all day to care for the child has the
impermissible effect of depriving respondent, an unmarried working
mother, of her equal right to custody."); Brennan v. Brennan, 685
A.2d 1104, 1106 (Vt. 1996).

Footnote 9:

     Burchard, 724 P.2d at 492.

Footnote 10:

     See id. at 492 n.10; Linda R. v. Richard E., 561 N.Y.S.2d 29,
33 (N.Y. App. Div. 1990).

Footnote 11:

     Brennan, 685 A.2d at 1105-06 (reversing a trial court decision
awarding custody to father over mother who relied on day care
provider); see Wellman, 604 N.Y.S.2d at 383 (reversing an order
granting custody to father whose wife would care for child over
mother who would take the child to be cared for by an aunt in the
mornings); Gerber v. Gerber, 487 A.2d 413, 416 (Pa. Super. 1985)
(noting that "a parent's work schedule may not deprive that parent
of custody if suitable arrangements are made for the child's care
in his or her absence").

Footnote 12:

     See generally Jennifer E. Horne, Note, The Brady Bunch and
Other Fictions: How Courts Decide Child Custody Disputes Involving
Remarried Parents, 45 Stan. L. Rev. 2073 (1993) (discussing
research indicating that children do not accept stepparents as
replacement parents and data about the instability of

Footnote 13:

     We note, however, that the record in this case is equivocal in
its support of the trial court's findings that Brian would marry
Anne Marie and that they would successfully arrange their work
schedules to ensure that one of them would usually be at home to
care for Cody.  Anne Marie -- who by her own estimate had seen Cody
on only a dozen occasions -- described her relationship with him as
"decent": "I think we have a -- decent relationship.  I don't -- I
don't inundate Cody.  I let him come to me."  With respect to
marriage, Brian testified that he and Anne Marie would probably get
married and start a family of their own.  Anne Marie testified that
she hoped to marry Brian but that they had not made definite plans. 
Her testimony concerning her future work schedule was even more
tentative.  She did say that she hoped to be able to reduce her
work hours and to mesh her schedule with Brian's, so that she could
"possibly [work] on weekends when Brian would be home."  But she
said this in describing her hope to "start a family," not in
describing her willingness to provide home care for Cody. 

Footnote 14:

     Our decision to remand also moots Marlene's challenge to the
superior court's child support order.

Footnote 15:

     To avoid potentially unnecessary relitigation of a contentious
issue, however, we note our conclusion that the superior court was
not clearly erroneous in declining to attach significant weight to
evidence of verbal abuse by Brian.