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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Fardig v. Fardig (10/4/2002) sp-5638

Fardig v. Fardig (10/4/2002) sp-5638

     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,


KRISTINE M. FARDIG, n/k/a          )
KRISTINE M. OWEN,             )    Supreme Court No. S-10028
               Appellant,          )    Superior Court No.
                              )    3AN-94-8214 CI
     v.                       )
                              )    O P I N I O N
EARLE FARDIG,                 )
                              )    [No. 5638 - October 4, 2002]
               Appellee.      )

          Appeal  from the Superior Court of the  State
          of    Alaska,    Third   Judicial   District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   Kristine  M.  Owen,  pro   se,
          Bakersfield,  California, Appellant.   Darryl
          L.   Jones,  Law  Office  of  Darryl   Jones,
          Anchorage, for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          FABE, Chief Justice.
          BRYNER, Justice, with whom MATTHEWS, Justice,
          joins, dissenting in part.


          Kristine  Owen (formerly Fardig) appeals a modification

of custody rights denying her custody of her minor children.  She

claims that the doctrines of res judicata and collateral estoppel

precluded  the  trial  court  from considering  her  drug  abuse.

Moreover,  she argues that the superior court improperly  weighed

the  evidence  in  making  its  decision.   The  superior  courts

decision  satisfies the appropriate standard  of  review  and  is

therefore affirmed.


          Kristine  Owen and Earle Fardig separated in  September

1994.   They divorced August 16, 1995.  Owen and Fardig had  been

married  for twenty-seven years during which time they had  eight

children  together.  Of those children, only three  Anna  Fardig,

born April 9, 1985; Bethany Fardig, born April 4, 1988; and Edith

Fardig,  born January 12, 1990  are presently under  the  age  of

eighteen.   Due  in  part  to evidence of  domestic  violence  by

Fardig,  Owen was granted custody of the five minor  children  at

the  time  the above three plus Sarah Fardig, born March 3, 1980,

and   Andrew   Fardig,  born  November  24,  1982   and   awarded

appropriate child support.

          In  July  1996,  approximately  ten  months  after  the

divorce  decree  was issued, Fardig moved for a  modification  of

custody, claiming that Owens substance abuse impaired her ability

to  care  for  the  children.  Based on a  report  by  a  custody

investigator  indicating that Owen may be abusing  alcohol,  pain

killers  and  other controlled substances, Superior  Court  Judge

Peter  A. Michalski issued an order on December 18, 1996 granting

interim  custody  to  Fardig.1  Owen was ordered  to  undergo  an

assessment for drug, alcohol, and narcotics addiction.

          Superior Court Judge Sen K. Tan denied Owens subsequent

motion  for  interim custody  on May 7, 1999, although  Owen  was

granted weekend visitation with daughter Edith.  At the June 2000

hearing  on  Fardigs motion to modify custody, the court  learned

that  Owen  had  moved  to  California.  Judge  Tan  subsequently

entered  a  final custody decree, giving sole legal  and  primary

physical  custody of Andrew, Anna, Bethany, and Edith to  Fardig.

Only the custody of Bethany and Edith was in dispute, as Owen had

agreed that it was best for Andrew and Anna to remain with  their

father.    Judge   Tan  found  that  Owens  move  to   California

constituted  a  substantial change in  circumstances.   Owen  was

granted  only supervised visitation with the children in  Alaska,

          with the possibility of summer visitation dependent upon a drug

and alcohol assessment.

          Owen  appeals  Judge Tans custody decree, although  she

now only contests custody of Edith.


          We  will  not  reverse the superior courts decision  to

modify  custody unless there has been an abuse of  discretion  or

the  controlling  factual findings are  clearly  erroneous.2   An

abuse  of  discretion  is established where  the  superior  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.3  A factual finding is clearly erroneous when a review of

the  record  leaves the court with a definite and firm conviction

that  the  superior  court has made a mistake.4   Issues  of  res

judicata  and collateral estoppel are questions of law  which  we

review de novo.5


     A.   The Issue of Owens Alleged Drug Abuse Is Not Barred  by
          Res Judicata or Collateral Estoppel.
          Fardig  based  his  motion for  modification  of  child

support  in  part  on claims that Owen was abusing  drugs.   Owen

argues  that this issue was dismissed with prejudice by  Superior

Court Judge Rene J. Gonzales at a July 21, 1995 domestic violence

hearing.   However,  there is nothing in Judge Gonzaless  interim

order  to  support this claim.  Moreover, Owens res judicata  and

collateral  estoppel claims lack merit because  consideration  of

Owens drug use in the context of a motion to modify custody  does

not  relitigate a past decision.  Indeed, Fardig points to  Owens

drug  abuse as a substantial change in circumstances.   In  other

words, Owens alleged drug abuse was not being relitigated.6

     B.   Judge  Tan  Had Sufficient Evidence To Find that  Owens
          Move   to   California   Constituted   a   Change    in
          Owen  contends  that Judge Tan should not  have  placed

          weight on her move to California in determining custody because

neither  party  raised  this  issue  and  because  the  move  was

temporary,  made for the purpose of helping an ill mother-in-law.

A  finding  of a substantial change in circumstances is necessary

before  a  custody modification hearing can be held.7  Judge  Tan

listed  Owens  move  to California as the substantial  change  in

circumstances  that  justified the custody modification  hearing.

We  have previously held that a move to another state constitutes

a substantial change in circumstances.8  Judge Tan commented that

although  the move was a temporary relocation, it could last  for

another year to eighteen months.

          The evidence before the court was sufficient to support

the  conclusion that the move was potentially long-term.  Due  to

the  fact  that Owen was requesting summer visitation,  the  move

could  reasonably  have been interpreted as less  temporary  than

Owen  herself  contends.  Furthermore, when asked  how  long  she

intended  to  stay  in  California, Owen, who  was  participating

telephonically at the June 2000 hearing, testified first that  it

might be one to two years and later stated that she was not  sure

if  she will ever come back to live in Alaska.  Consequently,  it

was  not  clearly erroneous for Judge Tan to find  a  substantial

change in circumstances meriting a reconsideration of custody.

     C.   Judge  Tan Had Sufficient Evidence To Support a  Change
          of  Custody  as  Being  in the Best  Interests  of  the
          Owen  challenges  the allegation of  drug  and  alcohol

abuse   on  the  ground  that  there  was  insufficient  evidence

introduced  at  the June 12, 2000 custody trial  to  support  the

allegation and the subsequent change in custody.  Owen points  to

two  doctors letters saying she was not abusing drugs or  alcohol

and  claims  that Fardig presented no evidence to the  contrary.9

While  Judge Tan did find evidence of drug and alcohol abuse,  it

is clear from his oral findings that this was not the only factor

relevant to his decision.

          Though  the written findings are rather cursory,  Judge

          Tan made extensive oral findings of fact to support his order

changing custody from Owen to Fardig.10  Judge Tan determined the

best  interests  of  the  children  by  discussing  each  of  the

statutory factors listed in AS 25.24.150(c).11  The first  factor

discussed  by  Judge  Tan  was the physical,  emotional,  mental,

religious, and social needs of the child.  He found that  Bethany

and Edith, the only children whose custody was in dispute, needed

emotional  support, a stable home, and unconditional  love.   For

the next factor, the ability of the parents to meet the needs  of

their  children,  Judge Tan found that Fardig provided  a  better

environment   for  the  children,  noting  that  Fardigs   living

situation  seemed  more  stable,  that  he  provided  them   with

sufficient  food  and  clothing, and  that  he  was  sending  the

children  to see a therapist.  Judge Tan worried that until  Owen

settled  into a more permanent living arrangement, she would  not

be able to provide the support that the children needed.12

          Judge  Tan  next noted that because Bethany  and  Edith

were  only twelve and ten years old he did not feel it  would  be

appropriate to take their preferences into consideration.13  Judge

Tan found that the factor of love and affection toward the parent

was  also  inconclusive,  since each  child  expressed  love  and

affection  for  both  parents.  For  the  factor  of  length  and

stability  of living arrangements, Judge Tan found that  both  of

the  children were happy living in Anchorage and had a good group

of  friends  here.  Judge Tan next found that each parent  had  a

difficult time allowing the children to have an open relationship

with   the  other  parent.   Judge  Tan  found  that  there   was

insufficient  evidence  to  conclude  that  either   parent   had

committed domestic violence.

          Judge  Tan next addressed the drug use by each  parent.

Judge  Tan focused on the fact that Fardig had been in an  eight-

month  substance  abuse  program and  had  attended  meetings  of

Alcoholics Anonymous and Narcotics Anonymous as evidence that  he

was  getting his drug problem under control.  Judge Tan chastised

          Owen for not making similar efforts.  Judge Tan considered the

two  doctors letters that Owen submitted to be unsworn statements

because  neither  doctor testified at trial.  Judge  Tan  further

noted  that the letters were unclear about what medications  Owen

was   taking  and  what  testing  and  drug  assessment  she  was

undergoing.14  Consequently, the trial court found little value in

the letters.

          Further support for Judge Tans conclusion can be  found

in  the  trial testimony of Janice Bernzott, a therapist who  had

previously counseled Andrew Fardig and was continuing to  counsel

Bethany and Edith Fardig at the time of the trial.  Bernzott, who

has a masters degree in clinical psychology and a nursing degree,

testified, based on comments that the children made to her,  that

she believed that Owen was currently using drugs.15

          Earle  Fardig testified that Owen refused to enter  the

same  treatment  program that Fardig had  earlier  undergone  for

addiction  to  prescription drugs; furthermore, Fardig  testified

that  Owen  even  denied that she had a problem.  Andrew  Fardig,

their  son,  testified that his mother was very manipulative  and

frequently  seemed  to be on something.  Jennifer  Fardig,  their

daughter,  testified that her father did not smoke  marijuana  or

abuse  alcohol  and  that  he would not let  the  children  smoke

cigarettes.   In  addition, Jennifer related  a  conversation  in

which her mother discussed being beaten by her husband, Bob Owen,

and  using drugs with him.  This testimony further supports Judge

Tans finding of possible drug use by Kristine Owen.

          Finally,  Judge  Tan  concluded  it  was  in  the  best

interests of Bethany and Edith to be kept together and with their

other siblings because of the emotional support that the siblings

provided for each other.

          In  sum, the evidence does not support Owens claim that

Judge  Tans  findings  on  the  statutory  factors  involved   in

determining  the  best  interests of the  children  were  clearly


     D.   There  Is  Evidence in the Record To Support the  Trial
          Courts  Finding that Owens Visits with Her Children  Be
          Under  J.F.E.  v.  J.A.S., unsupervised  visitation  by

parents  is  the norm.16  A requirement of supervised  visitation

must  be  supported  by  findings that specify  how  unsupervised

visitation  will adversely affect the childs physical, emotional,

mental,  religious, and social well-being.17  Bernzott  testified

that  Owen should have unsupervised visits with her children only

after a psychological evaluation and drug assessment of Owen  and

even then only after a transitional therapy period involving both

Owen  and  the  girls.  When Owen confronted  Bernzott  with  the

letter  from  Dr.  Beirne stating that she was not  using  drugs,

Bernzott  testified that this was not consistent with  statements

the children had made to her.  Bernzott concluded by stating:  My

clinical  opinion is that the children would best  be  served  by

supervised contact with [Owen].  Although Owen has not previously

been  required  to have supervised visitation with her  children,

the  testimony at trial provides support for Judge Tans  decision

to require supervised visitation.

          Moreover, we have previously stated that we prefer that

a  court  ordering supervised visitation also specify a  plan  by

which  unsupervised  visitation can  be  achieved.18   Judge  Tan

outlined  such  a  plan  when he directed  that  Owen  undergo  a

rigorous  clinical  assessment showing she was  clean  and  sober

before  he  would  consider, upon motion  by  Owen,  unsupervised

visitation.19  Consequently, Owen has been provided with a  means

for  regaining unsupervised and summer visitation of Edith should

she wish to do so.


          Owens res judicata and collateral estoppel claims  lack

merit because consideration of Owens drug use in the context of a

motion  to  modify custody does not relitigate a  past  decision.

Owen has failed to demonstrate that the superior court abused its

discretion  or  was clearly erroneous on a factual  determination

          with regard to the modification of custody.  Consequently, this

aspect  of  the  superior  courts  decision  is  AFFIRMED.    The

requirement  of  supervised visitation for Owen is  supported  by

evidence at trial and is also AFFIRMED.

BRYNER,  Justice, with whom MATTHEWS, Justice, joins,  dissenting

in part.

          I  join  todays opinion in concluding that the superior

court  did not abuse its discretion by awarding physical  custody

of  Bethany  and  Edith  to Fardig.  But  because  our  case  law

unequivocally requires express findings explaining the  need  for

supervised  visitation,  because the  superior  court  failed  to

comply  with this requirement, and because the record establishes

a  need for specific findings here, I would remand the visitation

order  and would direct the superior court to specify how Bethany

and  Edith would be harmed by having unsupervised visitation with

their mother, Owen.

          In  J.F.E. v. J.A.S.  decided just five years ago  this

court  articulated the legal standards that  must  be  met  in  a

private  custody proceeding before a court may restrict  parental

visitation  by  requiring third-party supervision;  we  concluded

that  Alaska law makes unsupervised visitation the norm  in  such

cases and that supervised visitation may be ordered only when the

trial court makes express findings specifying why supervision  is

actually necessary to protect the childrens best interests:

          [Alaska Statutes] 47.10.084 recognizes in the
          context  of  child-in-need-of-aid proceedings
          that   noncustodial  parents   have   certain
          residual    rights    and    responsibilities
          including  the  right and  responsibility  of
          reasonable  visitation.  AS 47.10.084(c).  It
          follows  that  a  similar residual  right  of
          reasonable visitation should exist in private
          custody  proceedings since  parents  in  such
          proceedings are no less deserving of  contact
          with  their children than parents of children
          whose  custody  has  been  committed  to  the
               Based  on  these provisions and  on  the
          statutes dealing with child custody, we infer
          that the best interests of the child standard
          normally   requires  unrestricted  visitation
          with the noncustodial parent.  Therefore,  an
          order requiring that visitation be supervised
          must  be  supported by findings that  specify
          how  unsupervised visitation  will  adversely
          affect   the   childs  physical,   emotional,
          mental, religious, and social well-being  and
          the   other   interests   set   out   at   AS
          Todays  opinion  silently overrules this  precedent  by

disregarding  its  unequivocal command that,  before  imposing  a

supervision  requirement on parental visitation, the trial  court

must  make  express  findings explaining how unsupervised  visits

would  violate  the childrens best interests.  For  the  superior

court utterly neglected to specify how unsupervised visitation by

Owen   would  adversely  affect  Bethanys  and  Ediths  physical,

emotional,  mental,  religious,  or  social  well-being;  indeed,

though the superior court comprehensively addressed the childrens

best  interests in deciding to award primary physical custody  to

Fardig,  it  failed  even  to mention  their  best  interests  in

summarily imposing Owens supervised visitation requirement.   Nor

does  the trial courts discussion of the childrens best interests

in  its  custody  findings explain its separate and  conceptually

different  decision  to require supervised visitation.   Although

the custody findings do explain why the court believed Fardig  to

be a better custodial parent than Owen, they contain nothing akin

to  a  finding  that unsupervised visitation would actually  harm

either child or adversely affect the childrens best interests.

          Yet  this  courts  opinion glosses  over  this  glaring

deficiency,  as if J.F.E.s holding meant nothing at all:  without

any  attempt to justify the absence of express findings  (indeed,

without  even acknowledging the superior courts failure  to  make

J.F.E. findings), the opinion proceeds to tackle the fact-finding

problem  on  its own, combing the record for traces  of  evidence

that  might  have supported a supervised visitation  requirement;

and  after  considerable stretching and straining, the  most  the

court can say is that Bernzotts expert testimony provides support

for  the  superior courts decision.2  But this minimal  appellate

finding  of  fact hardly fills the void left by the trial  courts

failure to make appropriate findings, for it lands well short  of

the  mark  established  in J.F.E., which  demands  findings  that

          specify how unsupervised visitation will adversely affect the

childs   physical,  emotional,  mental,  religious,  and   social

well-being and the other interests.3  Thus, todays opinion simply

adds  this  courts own name to the list of other participants  in

the  case   Fardig, Bernzott, and the superior court  judge   who

have  been  unable  to comply with J.F.E.s  standard.   And  this

courts  failure  is  especially glaring, since  the  standard  it

violates is its own creation.

          To  be  sure, the trial courts failure to make  express

findings in compliance with J.F.E. might be excused were it clear

that  Bernzotts  testimony had a solid factual  basis,  that  her

testimony  showed how unsupervised visitation would harm  Bethany

and Edith, and that the trial court actually found this testimony

convincing.   But  the record supports none of these  inferences.

Bernzotts  testimony that the childrens best interests  would  be

served  by  unsupervised visitation was itself wholly conclusory.

It  addressed  none of the statutory best interests  factors  and

offered  no  meaningful explanation to support  Bernzotts  expert

opinion;  moreover, when asked to describe her factual basis  for

concluding  that  Owen  suffered from substance  abuse  problems,

Bernzott  could point to only two equivocal statements by  Edith,

which   Bernzott  interpreted  as  references  to  drug  use   or


          Notably,  the  superior  court  neither  expressly  nor

implicitly  accepted Bernzotts testimony as credible  proof  that

Owen suffered from a substance abuse problem or posed a danger to

her   children.   To  the  contrary,  the  courts  oral  comments

demonstrate  that  it found insufficient evidence  to  allow  any

meaningful  conclusions  on  these  issues.   In  evaluating  the

statutory  best  interests  factor of  parental  drug  abuse  for

purposes of awarding custody, for example, the court noted:

          Ms.  Owen  presents me with a tough  problem.
          So  far, I have two letters  two letters from
          two  doctors.   [The] first is  by  Dr.  Mike
          Beirne . . . . I dont know what underlies it.
          I  tell  you what my problem is: both doctors
          did  not  testify  here in  person.   I  have
          essentially an unsworn statement by 2 doctors
          that  .  . . dont tell me very much.  I  dont
          know  exactly  what [each doctor]  has  done.
          What  I  find  critically  lacking  here   is
          anybody  who can get on the stand and testify
          and  tell me one way or the other, you  know,
          what medications Ms. Owen is on, what sort of
          testing  procedures she has  undergone,  what
          sort  of  assessment, and what is essentially
          the situation with the drugs.[5]
          Far  from concluding that credible evidence of drug use

by  Owen  existed,  then, the trial court expressly  acknowledged

that  the evidence on this issue was speculative.  But the  court

nonetheless   faulted  Owen  for  failing   to   disprove   these

speculative allegations:

          Ms.   Owen   says,   Oh   well,   thats   all
          speculation.  Well, sometimes the best way to
          refute  speculation is to have somebody  come
          into  court  to state under oath whats  going
          on.   Thats credible, reliable evidence.   So
          although I see those letters, Im not going to
          put  much  credibility into [them] because  I
          dont  know  exactly  the  contours  of  those
          The  court  returned to this theme later:  in  imposing

Owens  supervised  visitation requirement,  despite  its  express

recognition  that  the  evidence of  Owens  substance  abuse  was

speculative, the superior court took the view that Owen should be

restricted  to  supervised  visitation  unless  and   until   she

affirmatively proved that she would not pose any danger:

               I   have   considered   the   issue   of
          visitation.   Im  going to essentially  allow
          visitation after these conditions  have  been
          met:  Ms  Owen, I know you dont want to  hear
          this.   You think Judge Michalski dealt  with
          this  question.   But I tell  you  what.   It
          hasnt   been  dealt  with  .  .   .   to   my
          satisfaction.   I  want a  drug  and  alcohol
          assessment.   Okay.  I want somebody  telling
          me that they have assessed you.  And you have
          been assessed clean and sober.  That you dont
          need any drug treatment.  Its been years.   I
          havent  really seen any proof that  that  has
          occurred.   You  send  me  two  letters.   Im
          telling you now they are insufficient.  Youve
               gotta do better.  If you think youre really
          clean,  it should be very easy.  It  shouldnt
          take you very long to submit that evidence to
          the  court.  Okay.  Then well do a follow  up
          and  Ill  decide what sort of visitation  you
          shall  have.   Because until  that  time,  Im
          going   to   essentially  restrict   you   to
          supervised visitation.
          Hence,  the superior court decreed a strict  regime  of

supervised  visitation not because it was persuaded  by  credible

evidence that supervised visitation was needed to prevent harm to

the  childrens best interests, but rather because Owen had failed

to  prove her own innocence; she had failed to convince the court

that  unsupervised visitation would not harm  her  children.   As

Judge  Tan  himself  tellingly put it,  What  I  find  critically

lacking  here is anybody who can . . . tell  me one  way  or  the

other . . . what is essentially the situation.

          In  my  view, this finding strongly suggests  that  the

superior  court restricted Owen to supervised visitation  because

it  believed  that she bore the burden of overcoming  speculative

assertions  of  possible  drug use by affirmatively  proving  her

fitness  to  engage in risk-free unsupervised  visitation.   Even

though  Owen had parented eight children over a marriage spanning

some  twenty-seven years and had not been credibly shown to  have

caused  them  any  actual harm, the trial court required  her  to

prove  to its satisfaction that unsupervised visitation would  be

in  her  childrens  best  interests.  Yet this  requirement  cuts

directly   against   our   decision  in  J.F.E.,   which   adopts

unsupervised visitation as the norm in the absence of affirmative

proof  to  the  contrary and categorically precludes restrictions

imposing  supervised visitation unless the trial court  expressly

specifies how unsupervised visitation would adversely affect  the

childrens best interests.

          In  summary,  then, nothing in the record  excuses  the

trial  courts  failure  to  comply with  J.F.E.s  requirement  of

express  findings focusing on the need for supervised visitation.

Because the trial court failed to specify any adverse effect that

unsupervised visitation might actually have on the childrens best

interests,  and  because it appears instead  to  have  mistakenly

shifted to Owen the burden to refute speculation, I would  vacate

the    supervised   visitation   requirement   and   remand   for

reconsideration,  allowing the restriction  on  Owens  visitation

rights  to  be  reimposed  only upon the  entry  of  findings  in

compliance with J.F.E.s standards.

          I  thus dissent from this courts decision affirming the

supervised visitation order.

     1     Sarah Fardig, being no longer a minor, was not subject
to this order.

     2    Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000).

     3     Siekawitch  v. Siekawitch, 956 P.2d 447,  449  (Alaska

     4    Id.

     5     Renwick v. State, Bd. of Marine Pilots, 971 P.2d  631,
633 (Alaska 1999).

     6     Owen  also asserts that at the July 29, 1996  hearing,
Judge  Michalski improperly placed the burden of proof on her  to
show  that  she  did not abuse drugs.  Owen is correct  that  the
burden of proving a substantial change in circumstances necessary
for  custody  modification is on the moving  parent.   S.N.E.  v.
R.L.B.,  699  P.2d 875, 878 (Alaska 1985).  However, the  custody
investigators  report  that preceded the  interim  custody  order
essentially  provided evidence of Owens drug abuse.  Fardig  does
not  claim to be exempt from the burden of persuasion but insists
instead  that he satisfied it.  The evidence, namely the  custody
investigators report, is sufficient to show that Judge  Michalski
was  not clearly erroneous in concluding that there was a  strong
possibility that Owen abused drugs.

     7     AS  25.20.110(a) (An award of custody of  a  child  or
visitation with the child may be modified if the court determines
that  a change in circumstances requires the modification of  the
award  and  the  modification is in the  best  interests  of  the
child.); see also Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).

     8     House v. House, 779 P.2d 1204, 1207-08 (Alaska  1989).
Owen correctly points to House to support the proposition that it
can be in the best interests of the child to be in the custody of
the  parent  who is moving out of the state.  This, though,  does
not  lend any support to her assertion of custody other  than  to
say that it is a possibility.

     9     Owen  further  contends  that  Judge  Tan  abused  his
discretion  by  failing  to  give  proper  weight  to   a   taped
conversation in which her son Jon discusses selling marijuana  to
his  father,  Earle Fardig.  Judge Tan did accept  the  tapes  as
evidence,  but  apparently did not consider this evidence  to  be
sufficient under AS 25.24.140(c)(8) to award custody to Owen over
Fardig  as  being  in the best interests of  the  children.   The
statute provides as a factor in determining the best interests of
the child evidence that substance abuse by either parent or other
member  of  the  household  directly  affects  the  emotional  or
physical  well-being  of  the child.  By  invoking  an  abuse  of
discretion standard in this particular situation, Owen must  show
that Judge Tan gave disproportionate weight to particular factors
while  ignoring others.  Siekawitch v. Siekawitch, 956 P.2d  447,
449  (Alaska  1998).  While perhaps Judge Tan might have  ordered
some  sort  of  drug  assessment for Fardig, Judge  Tan  did  not
clearly give disproportionate weight to the relative drug use  of
Owen  as  compared  to that of Fardig for reasons  that  will  be
discussed below.

     10      Judge   Tan  commented  that  because  the   custody
investigator did not testify at trial, the custody report  relied
upon below was used only as background support.  Judge Tan stated
that  he  made his decision based on the evidence that  has  been
presented in court and testified to.

     11    The statute provides:

               (c)   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
               (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
               (6)   the  desire  and ability  of  each
          parent  to allow an open and loving  frequent
          relationship between the child and the  other
               (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.
     12    A trial judge is not permitted to condition custody on
a  parents ability to relocate.  Moeller-Prokosch v. Prokosch, 27
P.3d  314,  317  (Alaska  2001).   However,  the  impact  of  any
potential  move may be taken into consideration by the  court  in
assessing the best interests of the child.  Id.

     13    Owen contends that Edith is of an age where her opinion
could  be  asked  as  to  with  whom  she  wants  to  live.    AS
25.24.150(c)(3) requires that when determining custody the  court
take  into  account  the childs preference if  the  child  is  of
sufficient  age  and  capacity to form a preference.   Whether  a
child  is  of sufficient age to have a meaningful preference  for
one parent or the other is a question committed to the discretion
of  the  trial  court.  See Jenkins v. Handel, 10 P.3d  586,  590
(Alaska  2000).  Here, a therapist testified that Edith  was  not
mature enough to make a decision about where to live.

     14    This is not an entirely accurate statement:  The letter
from  Dr.  Beirne states that Owen has undergone  periodic  urine
drug  and  alcohol testing and never tested positive.  This  does
not,  though,  negate the fact that Dr. Beirne  did  not  testify
before the court.

     15      In   addition,   Bernzott  testified   that   Fardig
participated cooperatively in  Andrews counseling, but that  Owen
only  came  to counseling once and chose not to come back  again,
despite  an  invitation  to do so.  This  lends  support  to  the
conclusion that Fardig was working toward rehabilitation but Owen
was not.

     16    930 P.2d 409, 409 (Alaska 1996).

     17    Id. at 413-14.

     18    Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998).

     19     Both Earle Fardig and Andrew Fardig testified that if
allowed  to take the children to California, Owen would keep  the
children there.  Flight risk could potentially be a justification
for  supervised visits.  See Monette, 958 P.2d at 436.   However,
this  claim  was unsupported by anything other than  these  vague

1     J.F.E.  v.  J.A.S.,  930  P.2d 409,  413-14  (Alaska  1996)
(internal footnotes omitted) (emphasis added).

     2    Slip Opinion at 10-11.

3    930 P.2d at 413-14.

     4     Over  Owens  understandable but  unsuccessful  hearsay
objection,  Bernzott described two statements by Bethany  as  her
basis for believing that Owen had a substance abuse problem:

          Bethany reported to me that  mom had a lot of
          medicine  and that mom hurt a lot as  far  as
          drug use.  There was an occasion that Bethany
          also reported to me she asked her mom to stop
          the  car  because she believed  her  mom  was
          drunk    was  the  word  Bethany   used.    I
          interpreted that to be impaired in some  way.
          And  Bethany asked her mom to take  her  back
          home.  She would not continue in the car.
Evidently,  these  statements  were  made  to  Bernzott  sometime
shortly after she began seeing Bethany and Edith in February 1999
more  than a year before the custody hearing.  Bernzott  gave  no
further details and failed to describe the context in which these
statements  were  made or to specify when the reported  incidents
were alleged to have occurred.  When Owen challenged the accuracy
of  Bernzotts claim that Bethany made these statements,  Bernzott
quickly  altered her testimony and attributed the  statements  to
Edith instead.

5    Emphasis added.