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Hamilton v. Hamilton (03/08/2002) sp-5546
Hamilton v. Hamilton (03/08/2002) sp-5546
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
PHYLLIS HAMILTON, )
) Supreme Court No. S-9826
Appellant, )
) Superior Court No.
v. ) 1PE-97-26 CI
)
JOHN HAMILTON, IV, ) O P I N I O N
)
Appellee. ) [No. 5546 - March 8,
2002]
________________________________)
Appeal from the Superior Court of the State
of Alaska, First Judicial District,
Petersburg, Michael A. Thompson, Judge.
Appearances: Alan J. Hooper and Gloria
Hanssen Hooper, Hooper & Hanssen, Fairbanks,
for Appellant. Paul H. Grant, Law Office of
Paul H. Grant, Juneau, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Phyllis and John Hamilton were divorced in 1999 after
nearly nine years of marriage. They agreed that Phyllis should
be awarded primary physical custody of their two sons, Francis
and Ian. Because of problems communicating with Phyllis
regarding his visitation rights and Phylliss move with the boys
to Tacoma, Washington, John filed a motion to modify the custody
arrangement. After a trial, Superior Court Judge Michael A.
Thompson found that a transfer of primary physical custody to
John was in the childrens best interests due primarily to
Phylliss inability to foster an open relationship between the
boys and John when they were in her custody. Phyllis appeals
that determination. Because the trial court did not err in
making its factual findings nor did it abuse its discretion in
awarding custody, we affirm the trial courts award of custody to
John.
II. FACTS AND PROCEEDINGS
Phyllis and John began dating in 1990 and moved in
together in late spring 1991. Their first son, Francis (Frank)
was born on June 28, 1991. They married that November. On April
30, 1993, their second son, Ian, was born. Also in 1993 the
Hamilton family moved to Petersburg so that John could begin
working with the Petersburg Police Department.
After considering separation several times, John moved
out of the house on May 1, 1997 and filed a complaint for divorce
later that month. Phyllis moved with the boys from Petersburg to
Juneau when she obtained a job with the state. Negotiations
between Phyllis and John culminated in a property settlement and
child custody agreement filed on February 22, 1999. The decree
of divorce was entered on March 25, 1999.
John and Phyllis were given joint legal custody of the
children, with primary physical custody in Phyllis. John was
given visitation during Thanksgiving, winter holiday, spring
break, and summer vacation. In addition, John was given
visitation rights if he is in Juneau, provided it is reasonable
and does not interfere with pre-planned activities or school
attendance, and may have the boys travel to visit him in
Petersburg for up to five weekends during the school year, at his
expense.
The agreement also gave each parent the right to make
decisions regarding day-to-day care and control of the children
when the children are residing with that parent, but major
decisions regarding education, medical care, and socialization
were to be made jointly. John and Phyllis agreed to a good faith
requirement to use their best efforts to comply with statements
of principle relating to their parenting rights and
responsibilities, including working together on providing a sound
moral, socioeconomic, and educational environment for the
children; promoting the relationship between the children and the
other parent; and supporting the other parents lifestyle in front
of the children.
In October 1999 John filed a motion and memorandum to
enforce visitation and for sanctions against Phyllis. He claimed
that Phyllis had twice violated the child custody agreement by
not allowing him to visit the boys when he was in Juneau on
business. Phyllis, now acting pro se, requested a continuance
for her response to Johns motion. Before her response was filed,
John filed another motion, this time asking that custody be
modified. The impetus for this motion was Phylliss and the boys
move, without notice to John, out-of-state to Tacoma, Washington.1
Phyllis responded to Johns motions and claimed that she was
complying with the court-ordered visitation, that her move to
Washington was not in violation of the custody agreement, and
that John had interfered with her physical custody of the boys.
The trial court agreed that Phylliss move to Washington
justified a re-examination of the custody agreement and issued an
interim order keeping the custody agreement in effect with
Washington State substituted for Juneau. The trial court also
ordered a custody investigation report. A trial on the motion to
modify custody was held in July 2000 after the custody
investigation report was filed with the trial court.
Following trial, Judge Thompson issued an order
granting Johns motion to modify custody. He stated that the
factor regarding the desire and ability of each parent to allow
an open and loving frequent relationship between the child and
the other parent2 was the most important factor in reaching his
decision. He then discussed the other factors under AS
25.24.150(c), which he found to be either equal between the
parties or not applicable. Judge Thompson adopted the
recommendation of the custody investigator with several minor
exceptions. Phyllis and John continue to share legal custody,
with John having primary physical custody. Phyllis was given
visitation during summer vacation, on alternating winter holiday
and spring break vacations, with shared travel expenses, and on
alternating Thanksgivings, if she takes sole responsibility for
the expenses. Once again represented by counsel, Phyllis
appealed.
III. STANDARD OF REVIEW
The trial court has broad discretion in child custody
decisions.3 A trial courts determination of custody will be set
aside only if the entire record demonstrates that the controlling
findings of fact are clearly erroneous or that the trial court
abused its discretion.4
A finding of fact is clearly erroneous when this court
is left with a definite and firm conviction that the trial court
has made a mistake.5 Abuse of discretion is established if the
trial court considered improper factors in making its custody
determination, failed to consider statutorily mandated factors,
or assigned disproportionate weight to particular factors while
ignoring others.6
IV. DISCUSSION
A. The Trial Court Did Not Make Clearly Erroneous Factual
Findings.
1. The trial was not about Phylliss shortcomings in her
relationship with John.
Phyllis argues that the trial was not about the best
interests of the children, but instead about her shortcomings in
her relationship with John. Rather than considering Johns
actions, she contends, the trial court only looked at Phylliss
reactions without taking account of the stress she was suffering
from Johns manipulations and her financial problems. Phyllis
points to the trial courts statement that [i]t was [Phylliss]
adherence to the letter and spirit of [the Good Faith
Requirements in the child custody agreement] that prompted two
and one-half days of testimony as evidence of her contention.
The trial was not about Phylliss shortcomings in her
relationship. The trial court heard testimony from nineteen
witnesses before issuing its order. Though at times their
relationship was discussed, the majority of the testimony of each
witness focused on Phylliss and Johns respective parenting of the
boys. Aside from its recitation of the collapse of communication
between Phyllis and John, the trial court makes no mention of
their relationship.7
2. The trial court did not err in finding that Phylliss and
Johns relationship slowly deteriorated beyond repair after
entering into their property settlement and child custody
agreement.
Phyllis finds fault with the trial courts statement in
its order that [f]ollowing entry into the above referenced
agreement the parties relationship, already strained, slowly
deteriorated beyond repair. She argues that the record shows
that the divorce had been high in conflict from the beginning and
that there was no deterioration in their relationship.
While the divorce was not an amicable one,
communication between the parties became even more tense after
John and Phyllis signed the child custody agreement. Eight
months after the divorce was final, John filed a motion to
enforce his visitation rights and moved for sanctions against
Phyllis. In his affidavit, John stated that Phyllis had hung up
on him when he had called to arrange visitation for times he
would be in Juneau on business. Phyllis did call him back soon
afterward but no plans for visitation were agreed to. He then
wrote a formal letter and had it served on her by a process
server. When no plans were reached, John went to the Juneau
Police Department and had an officer accompany him to her house.
In her request for a continuance for her response to
Johns motion, Phyllis spoke of Johns malicious, unlawful
behavior, and his abuse of his law enforcement authority.
Furthermore, she complained of his relentlessly antagonistic,
hate-filled, and malicious harassment. As the police had never
been called and the rhetoric between the parties had not been as
harsh prior to the settlement, the trial court did not err in
finding that Johns and Phylliss strained relationship
deteriorated after their divorce.
3. The trial court did not err in finding that all
communication between John and Phyllis had collapsed.
Phyllis argues that the court erred in finding that
[p]olite discussion became bickering, then argument, and by
eventual declension all communication collapsed. Rather, she
contends, the parties had a difficult time communicating at all
times following their separation.
The trial courts statement regarding the communication
between the parties from the date of their separation is
accurate. John described Phyllis as hostile towards him, he had
a letter formally served on her at work, and he filed a custodial
interference report with the Juneau Police Department.
When speaking of John soon after he filed the motion
for a change in custody, Phyllis stated that he
did in fact walk out on us, his own family,
cold heartedly and completely without feeling
or remorse, after moving us hundreds of miles
from any other family members who might give
us assistance and support. He in fact
abandoned us, he knows it, although he will
continue to twist the truth as he does while
looking everyone right in the eye. [Emphasis
omitted.]
Phylliss increasing animosity towards John and Johns escalating
antagonism fairly indicate that communication had badly
deteriorated during the separation.
4. The trial court did not err in finding that
Phyllis advised school
personnel not to cooperate with John.
Phyllis contends that the trial courts finding that she
advised the boys school personnel not to cooperate with John is
not supported by the record. Before moving to Washington, the
boys attended both Glacier Valley and Harborview Elementary
Schools in Juneau. The custody investigator spoke with Franks and
Ians teachers at both schools, as well as both principals. The
investigators report states that Phyllis told the staff at
Glacier Valley not to inform John about any concerns they may
have and that they were to deal with her only.
In his testimony, John stated that he had to pry
information about Franks and Ians progress from three different
school administrators. Although Phyllis denies telling
Harborview staff to stop John from seeing the boys, when he tried
to visit Harborview, he reported a very hostile attitude from the
receptionist and office workers. He further reported that
Phyllis had not listed him in the boys paperwork on record at the
schools. Phylliss only response is that the custody investigator
and staff at Glacier Valley as well as Harborview are lying, but
she gives no reason for them to lie. As such, the trial courts
finding that Phyllis advised the school personnel not to
cooperate is supported by the record.
5. The trial court did not err in finding that transferring the
boys to a different school was for Phylliss personal reasons.
Phyllis alleges that the trial court erred in finding
that she changed the boys school for personal reasons and in not
finding that it was the result of a thoughtful parental decision.
In the fall of 1998, Phyllis transferred the boys from Glacier
Valley to Harborview Elementary School. Through her
correspondence with school staff, the custody investigator found
that staff and teachers at Glacier Valley had difficulty working
with Phyllis. They found her to be in denial about problems the
boys were facing and that she avoided dealing with concerns by
blaming others.
After visiting the staff and teachers at Glacier
Valley, John alleges that Phyllis called to scream at him about
turning the teachers against her. Soon after, he contends,
Phyllis transferred the boys to Harborview. John also stated in
his testimony that the reason Phyllis gave for transferring the
children was because he had turned the teachers against Phyllis
and, as a result, Glacier Valley was a bad environment for the
children. Even though Phylliss desire to transfer the boys may
have been to remove them from an unsatisfactory environment,
ample evidence indicates she was the main cause of that
unsatisfactory environment.
6. The trial court did not err in finding that the boys were
aware of the move to Washington in advance.
Phyllis states that the trial courts finding that,
according to school personnel, the children were aware of the
upcoming move to Washington is not supported by the record. In a
footnote, Judge Thompson states that the children were vaguely
aware of a move days before Phyllis quit her job and moved the
family to Washington. The custody investigator reports that
Harborviews principal indicated that the boys were aware of the
move a couple of weeks prior to their departure. Principal Dye
stated that Ian let it slip in school but said he wasnt supposed
to tell anyone.
Phyllis argues that even though she did not object to
this hearsay, it was plain error for the trial court to base a
finding on this statement. The argument is unpersuasive. Though
she was pro se during the hearing, Phyllis objected several times
to hearsay during Johns examination of witnesses. More
importantly, Phyllis admitted in an affidavit that she spoke to
the boys in depth about moving and that they could not wait to
leave for Seattle on Saturday.
The trial courts finding that the boys were vaguely
aware of the move is supported by both the custody investigators
report and by Phylliss own testimony. Thus, it was not error,
much less plain error, for the court to consider it.
7. The trial court did not err in imputing an improper motive
for Phylliss move to Washington.
1. Phyllis attacks the trial courts finding that her move from
Juneau was for the purpose of thwarting Johns access to the
children. She argues that the stress of being a single working
mother in a new town, financial pressures, and lack of family
support induced her to move back to the Tacoma area.
Judge Thompsons order discusses Phylliss move by
stating that [t]he final straw on this camels back was defendants
decision to abscond from Juneau to Tacoma, Washington with the
children without any notice whatever to plaintiff. Defendants
testimony that this move was simply a visit which she later
determined to become permanent, and/or that it was done on the
spur of the moment is frankly incredible. As further proof,
Judge Thompson mentioned that within hours of leaving her job,
Phyllis had loaded two automobiles on the barge for Washington.
The record supports Judge Thompsons findings that
Phyllis had thought of the move in advance and did not inform
John of her plans. John affied that he was not told of the
impending move to Washington. He also stated that Ian had told
him that their belongings were on the barge south when John first
spoke with Ian after his arrival in Washington. In one of her
affidavits, Phyllis stated that when she, Francis, and Ian left
the Juneau apartment for the final time, just prior to leaving
for Washington, the apartment was empty of their belongings. She
also stated that when she spoke to John after arriving in
Washington, she wasnt sure where in Tacoma she was going to live.
Phyllis told the trial court that the day she quit her job she
put two cars, loaded with her belongings, on a barge headed for
Tacoma. Despite Phylliss claims that she was just visiting
Tacoma, the fact that she moved everything out of her apartment
and shipped it south provided enough evidence for the trial
courts finding that she had planned on moving out of Alaska.
8. The trial court did not err in finding that John
had not received information about the childrens
school progress because of Phyllis.
Phyllis disputes the trial courts finding that John was
forced to pursue inquiries regarding the childrens education and
health on his own, long distance, with no cooperation. In
[Phylliss] words, that was his responsibility - she had no
obligation to share these things with him. Phyllis claims this
finding is clearly erroneous.
Phylliss belief that it was not her responsibility to
inform John of the childrens school progress is clear from her
testimony and admitted in her brief. Her objection to this
statement appears to be more her impression that the judge found
this to be a factor against her claim for custody. She
attributes blame to the settlement agreement, claiming that a
more specific order as to what was to be provided and by whom
would have solved the problem.
While there was nothing mentioned in the custody
agreement requiring the custodial parent to share school
information, John and Phyllis were to consult with one another on
substantial questions relating to educational programs. They
were also to exert their best efforts to work cooperatively in
future plans consistent with the best interests of the children .
. . . Having found Phyllis to believe that it was Johns
responsibility to contact the school for information, the trial
courts finding that such a belief did not meet the goals of the
child custody agreement is supported by the record.
B. The Trial Court Did Not Abuse Its Discretion in Awarding
Custody to John.
1. The trial court did not abuse its
discretion in failing to give deference to the
original custody order.
Phyllis argues that, when considering an action to
modify a custody agreement, a court must give deference to the
findings made in the original custody determination. She states
that courts should be cautious in modifying custody orders. John
argues that the initial custody order is not entitled to
deference because there were no factual findings made when the
parties settled the custody dispute.
A court may not modify child custody or visitation
without a substantial change in circumstances.8 A custodial
parents decision to leave Alaska with the children constitutes a
substantial change in circumstances.9 Such a change justifies a
judicial hearing when the parents cannot agree on a mutually-
acceptable custody and visitation agreement.10
In addition to finding a substantial change in
circumstances, a court must also consider whether a modification
of custody is in the best interests of the child.11 A court
determines the best interests of a child by considering nine
statutory factors.12 A judge considering the best interests of a
child must consider the findings made at the original hearing.13
Here, there were no findings of fact made at the time of the
original order as it was entered into pursuant to a settlement
agreement. Furthermore, the parties began experiencing problems
soon after entering into the stipulated custody agreement, which
had been in effect for less than nine months before Phyllis left
the state. Given that a custodial parents move out of state with
the children constitutes a substantial change in circumstances,
the trial court did not abuse its discretion in failing to give
deference to the original custody order.
Phyllis also makes a passing reference to the fact that
Judge Thompson did not consider any alternative custody
arrangements. As this argument was not briefed, it is deemed
waived.14
2. The trial court did not abuse its discretion by placing too
much weight on the ability of Phyllis to allow the children an
open and loving relationship with John while not placing enough
weight on the continuity and stability of the boys relationship
with Phyllis.
Phyllis argues that the trial court focused narrowly on
her adherence to the good faith requirements of the settlement
agreement without thoroughly considering all of the best
interests factors. Phyllis argues that the trial court solely
considered her negative view of John and did not in turn consider
Johns negative views of her and the impact that would have on the
children were he given custody.
In Dingeman v. Dingeman,15 we upheld a custody award
after finding that a fathers animosity towards a mother prevented
him from fostering an open relationship between the mother and
child.16 Although the superior court had not pointed to specific
factual situations that indicated this, we found multiple
indications of the fathers feelings towards the mother in the
record that supported the trial courts conclusion.17
In his order, Judge Thompson stated that factor six,
the desire and ability of each parent to allow an open and loving
frequent relationship between the child and the other parent,18
was the factor that drove his decision. Judge Thompson looked at
Phylliss lack of cooperation in sharing school information with
John, her move to Washington, and her hostility to John for
having left their family to indicate that this factor was in
Johns favor, finding John did not want to pull the children away
from Phyllis as much as he wanted to pull the children towards
himself.
The trial court also looked at the other statutory
factors in making its determination. Judge Thompson found that
the first two factors concerning the childrens physical,
emotional, mental, religious, and social needs favored neither
the plaintiff nor the defendant. Given the boys ages, the trial
court stated, their preferences, if known, would be given little
weight. Love and affection between parent and children seemed
equal in the courts view. Factor seven, domestic violence,
abuse, and/or neglect, and factor eight, substance abuse, were
not present in this case. The court found no other pertinent
matters affecting its decision.
The only factor not explicitly mentioned by the court
was AS 25.24.150(c)(5), continuity and stability. However, the
trial court did state that it does not take lightly the decision
to shift majority custody from the children[]s lifelong primary
parent. This statement indicates that the trial court understood
that continuity of care favored custody remaining with Phyllis.
The trial court, however, indicated that the children were not
living in a stable environment. The trial court found that the
boys were beginning to exhibit the effects of the stress being
placed on them by Phylliss inability to encourage Johns
parenting. Furthermore, the childrens lives with Phyllis were
not necessarily stable. After the parties separated, Phyllis and
the boys lived in three different towns, Petersburg, Juneau, and
Tacoma.
Alaska Statute 25.24.150(c)(5) requires the court to
look to the desirability of maintaining continuity. While Judge
Thompson found Phyllis to be a good parent, he also indicated
that her inability to cooperate with John required custody to be
placed with John. John, he found, only wanted to pull the
children toward himself rather than away from [Phyllis].
(Emphasis in original.)
Judge Thompson found Phylliss inability to allow John
frequent access to the children, and the stress
that this was causing the boys, to be more
important than the desirability of maintaining
continuity of care by Phyllis. This decision is
supported by the recommendation of the custody
investigator who indicated that custody should be
changed immediately, despite the disruption to
their education that it would have caused had it
been done when the investigation report was first
published in late March. 3. The trial
court did not abuse its discretion in its weighing
of the childrens religious needs.
Phyllis has raised the boys as Jehovahs Witnesses since
1995. John has expressed a great deal of hostility towards this
religion and the effect it is having on the boys. He has
expressed a desire to allow the boys to make up their own minds
as to religion when they are old enough to fully understand it.
Despite his past hostility towards Phylliss choice of religious
beliefs, John stated during his testimony that he would not stand
in the childrens way if they choose to practice Phylliss
religion. He expressed a tolerance for the childrens reading,
study, and discussion of the religion with people who are
knowledgeable and interested in it.
Phyllis claims that the trial court did not account for
Johns intolerance toward the boys religious beliefs as Jehovahs
Witnesses. She claims that placing the children, especially
Francis who has begun to internalize a religious belief system,
into a home where such beliefs are not respected is a factor the
trial court should have given more consideration.
Although a court may not rely on the religious
affiliations of the parties in making a best interests
determination, the religious needs of a child are a factor the
court can consider.19 The court must make a finding that the
child has actual religious needs and that one parent can better
satisfy those needs.20 In deciding actual religious needs, we
determine whether a child is mature enough to make a choice
between a form of religion or the lack of it.21 In Bonjour v.
Bonjour, while noting that the maturity of a minor will vary from
case to case, we commented favorably on one courts holding that
children aged three, five, and seven are not of sufficient
maturity to form an intelligent opinion on so complex a subject
as religion or their needs with respect to it.22 In that case we
went on to consider the kinds of determinations a trial court may
need to make when a fifteen-year old child has developed either
strong religious or anti-religious beliefs.23 As Francis and Ian
are nine and seven, respectively, they are not yet mature enough
to make a choice between a form of religion or the lack of it.
In spite of Johns admitted instances of previous
intolerance, Judge Thompson found his tolerance expressed at
trial to be believable. As such, the court found that the
religious aspects of the first two factors in determining the
best interests of the children favored neither John nor Phyllis.
Because the children lacked the maturity needed to present an
actual religious belief, the trial court was not required to give
further consideration to the boys religious needs beyond its
belief in Johns tolerance. Furthermore, the trial court
expressly stated in the order that should Johns tolerance wane
and should he begin to affirmatively attempt to ridicule or
undermine [Phylliss] religious beliefs to the children, this
factor could become more important.
4. The trial court did not abuse its discretion in not
addressing the cultural needs of the children.
Phyllis argues that the trial court failed to consider
the fact that the children are bi-racial as a pertinent factor
under AS 25.24.150(c)(9). She argues that the trial court failed
to consider whether the childrens specific cultural needs can
best be met in Petersburg or Tacoma. Rather than addressing the
problems these boys may face as bi-racial children, Phyllis
claims that the trial court merely favored the local party.
John argues that we should not consider the trial
courts lack of findings regarding Francis and Ians cultural needs
because Phyllis did not raise those needs at trial. He points to
case law indicating that matters that are not brought before the
trial court will not be considered on appeal.24 The court,
however, holds pro se litigants to a less stringent standard than
lawyers.25 As such, if Phyllis in any way flagged the issue as
one of concern for the trial court to consider, her failure to
make an explicit claim should not be held against her. We find
that Phyllis met this minimal burden.26
Because John, who lives in Petersburg, was given
custody of the children, Phyllis, who lives in Tacoma, argues
that the trial court failed to address the childrens cultural
needs. She claims that in Tacoma the children will be exposed to
the African-American culture through their schooling and her
family more than they would living in Petersburg.
Phyllis claims that under Rooney v. Rooney,27 a trial
court must consider a childs cultural needs in the overall
context of a best interests determination. In Rooney, the mother
in the custody dispute was Tlingit, living in Sitka, while the
father was white, living in Wrangell. The guardian ad litem
recommended that because the child was of a mixed racial
background, he needed to be exposed to both cultures.28 Despite
the absence of a strong native presence and native elders in
Wrangell, especially when compared with the exposure the child
would get to the Tlingit culture living with his mother in Sitka,
the superior court awarded custody to the father.29 In affirming
the custody award, we stated that cultural needs are not
determinative and that the mother would have adequate opportunity
to expose her child to her culture during her extensive
visitation periods (the three month summer vacation and various
other school vacations) and through her family that remained in
Wrangell.30
Here, the trial court made no mention of the boys
cultural needs in its order, probably because the parties did not
argue that cultural needs were at issue. No mention was made by
Phyllis of the boys status as bi-racial children in the custody
investigation report. The only mention by John occurs when he
speaks of difficulties the children may have fitting in at school
due to their mixed racial heritage, indicating his awareness and
concern for the problems the children may face. There is also no
evidence in the record as to the relative racial and ethnic
makeups of Petersburg and Tacoma.
We perceive no error pertaining to the childrens
cultural needs. As noted, the trial court did not explicitly
consider the cultural needs of the boys because there was no
evidence presented to the trial court upon which such a
determination could be made. And Phyllis will have custody of
the boys during the three month summer vacation as well as other
various school vacations, just like the mother in Rooney. The
trial court knew that John was aware of the possible problem.
Finally, the boys were being placed into a multiracial home.31
All of these circumstances lead us to conclude that the trial
court did not abuse its discretion in not explicitly addressing
the childrens cultural needs.
V. CONCLUSION
Because the trial court did not make any clearly
erroneous factual findings nor did it abuse its discretion in
awarding custody to John, we AFFIRM the trial courts decision.
_______________________________
1 Phyllis, who is African-American, argues on appeal that
it was important for her boys to have better access to her family
and their cultural roots. John is Caucasian.
2 AS 25.24.150(c)(6).
3 Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).
4 Id.
5 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
6 Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
7 The report prepared by the custody investigator and
relied on by the trial court did mention the relationship history
of Phyllis and John. But rather than focusing on whose fault the
break-up was, the investigator allowed both sides to tell their
version of what happened. And the relationship history was a
minor part of the custody investigators report, which
concentrated heavily on the best interests of the children.
8 Cooper v. State, 638 P.2d 174, 179 (Alaska 1981).
9 Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska
2001); House v. House, 779 P.2d 1204, 1207 (Alaska 1989).
10 House, 779 P.2d at 1208.
11 AS 25.20.110(a); Jenkins v. Handel, 10 P.3d 586, 589
(Alaska 2000).
12 AS 25.24.150(c) provides:
The court shall determine custody in
accordance with the best interests of the
child under AS 25.20.060-25.20.130. In
determining the best interests of the child
the court shall consider
(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 childs 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.
13 DeHart v. Layman, 536 P.2d 789, 792 (Alaska 1975).
14 Adamson v. Univ. of Alaska, 819 P.2d 886, 889 n.3
(Alaska 1991).
15 865 P.2d 94 (Alaska 1993).
16 Id. at 98.
17 Id.
18 AS 25.24.150(c)(6).
19 Bonjour v. Bonjour, 592 P.2d 1233, 1238-39 (Alaska
1979).
20 Id. at 1239.
21 Id. at 1240.
22 Id. at 1240 n.14.
23 Id. at 1240.
24 See B.B. v. D.D., 18 P.3d 1210, 1214 (Alaska 2001).
25 Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987).
26 In her direct and cross examinations, Phyllis did bring
up race a number of times. She asked about Johns family members
relationships with people of color. During the trial, John also
brought up race, possibly attempting to paint Phyllis as biased
against white people. (Judge Thompson, however, stated that any
such implications are unsupported and any overreaction Phyllis
may have had toward those accusations is understandable.)
27 914 P.2d 212 (Alaska 1996).
28 Id. at 214.
29 Id. at 218.
30 Id.
31 Johns girlfriend, Jennifer Valentine, is Vietnamese and
has a son, James, whose ethnicity and race do not appear in the
record. As the children will be living in a home with John,
Jennifer, and James, they will be exposed to a variety of
cultures and races. Rather than not seeing anyone who looks like
them, as Phyllis fears, they will see a home where no one looks
the same as anyone else.
