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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Smith v. Weekley (7/18/2003) sp-5709

Smith v. Weekley (7/18/2003) sp-5709

     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,


STACIE L. SMITH,                        )
                              )    Supreme Court No. S-10600
             Appellant,                 )
                              )    Superior Court No.
     v.                       )    3AN-01-9685 CI
RONALD D. WEEKLEY,                 )    O P I N I O N
             Appellee.                  )    [No. 5709 - July 18,

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:  Gayle J. Brown, Anchorage,  for
          Appellant.   David  S.  Houston,  Houston   &
          Houston, P.C., Anchorage, for Appellee.

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

          CARPENETI, Justice.


          I.   In this action for child custody, the superior court

awarded  interim  custody to the father  and  later  adopted  the

interim  custody  arrangement  as  the  final  one.   The  mother

contests  this  decision, maintaining that the court  applied  an

incorrect  standard  in reaching its final custody  determination

and  considered  one  statutory  best  interests  factor  to  the

exclusion  of  all  others.  Because we agree that  the  superior

court  failed to apply the correct standard to its child  custody

determination and that it erroneously applied the statutory  best

interests factors, we remand for a new custody determination.


     A.   Facts

          The  parents  in  this  child  custody  action,  Ronald

Weekley and Stacie Siver (formerly Smith), were never married but

had  one  child together, Dalton.  For at least two years  before

this action was initiated, Dalton alternated between each parents

home  on  a weekly basis.  At the time of trial, Dalton  was  six

years   old  and  was  in  the  middle  of  his  first  year   of

kindergarten, and both of his parents had married other partners.

Ronald  Weekley and his wife, Daltons stepmother, had  an  almost

two-year-old  daughter  who  lived  with  them,  and  they   were

expecting  a  second child.  Stacie Siver had  an  eight-year-old

daughter  who  lived primarily with her father and  visited  with

Stacie  and  her husband on certain weekends of each month.   For

most  of  Daltons  life,  both  of his  parents  had  resided  in


          The  Sivers  moved to Wasilla at some  point  in  2001.

Siver  planned to enroll Dalton in a private school there,  while

Weekley  anticipated that Dalton would attend  public  school  in

Anchorage.   Prior to the move, the parties had  not  reached  an

agreement  regarding Daltons future placement.  The parties  were

also  in disagreement regarding Daltons medical needs.  In August

of  2001 Siver took Dalton to the Alaska Native Medical Center to

begin treatment for his toe walking.  According to his doctor  at

that  time, Dalton was unable to walk with his feet flat and  his

condition  was unlikely to remedy itself.  The doctor recommended

serial  casting, which consists of a walking cast  in  which  the

angle  of  the ankle is changed slowly over time to  stretch  the

tight ankle muscles.  The following month, Weekley took Dalton to

another  doctor  for an explanation of the casting.   The  second

doctor  expressed  the opinion that the two  castings  which  had

already  been  done  had sufficiently stretched  the  appropriate

muscle  and  that  no further casting was needed  at  that  time.

During  the  course  of  the proceedings,  Siver  emphasized  the

importance   of  her  overseeing  Daltons  care,  while   Weekley

maintained  that Siver had overstated Daltons medical  needs  and

that, whatever they were, he was equally able to meet them.

     B.   Proceedings

          On  August  14, 2001, without informing  Siver  of  his

plans,  Weekley  filed a complaint for permanent  custody  and  a

motion  for  interim  custody.   In the  accompanying  affidavit,

Weekley  emphasized Sivers decision to move to  Wasilla  and  the

disagreement between Siver and Weekley as to where Dalton  should

be  enrolled  in school as bases on which the court should  place

Dalton  with  him.   Siver  did  not  receive  service  of  these

documents  until August 24, when her attorney contacted  Weekleys

attorney  and  arranged to accept service of  the  complaint  and

motion on Sivers behalf.

          On  August  29, not yet having received  a  reply  from

Siver,  Superior Court Judge Peter A. Michalski granted  Weekleys

motion  for interim custody, ordering visitation for Siver  every

other  weekend  and requiring her to begin paying child  support.

The  interim custody order was sent to Siver and Weekley by  U.S.

mail  on August 30.  That same day, prior to receiving the courts

order,  Siver filed an opposition to Weekleys request for interim

custody  and  cross-petitioned for placement  with  her.   Citing

Daltons medical needs and her status as a stay-at-home mom, Siver

maintained  that the court should grant her interim  custody  and

provide  Weekley with visitation three weekends per  month.   She

also requested that the court hold an evidentiary hearing on  the


          On September 4, 2001, after receiving the courts August

29  order granting Weekley interim custody, Siver filed a  motion

to  set  the  order aside on the ground that Siver had  not  been

timely  served with the complaint or motion for interim  custody.

As  Siver  explained, she had had custody of the minor child  and

her  opposition  to the motion which was timely filed  was  never

considered by the court.  In her motion asking the court  to  set

aside  its  interim  order,  Siver  maintained:  The  order   was

improvidently entered prior to defendants ten day time to respond

to  the  underlying motion.  Defendant and her counsel  were  not

served  with  the Complaint or other documents until  August  24,

2001,  in the afternoon.  The opposition was filed on August  30,

2001, well within the 10 day response period.

          Sivers  opposition to Weekleys motion  and  request  to

have  the order set aside were followed on September 5 by a reply

in  which Weekley argued that the interim order should remain  in

place and requested that the court issue a writ of assistance  to

facilitate  the transfer of custody from Siver to  him.   In  his

reply,  Weekley  contended that Siver  had  subjected  Dalton  to

medical  treatment which may have been unnecessary, that she  had

unilaterally cut off all contact between Weekley and Dalton, that

she  had  falsely  alleged domestic violence against  Weekley  to

avoid  transferring custody of Dalton, and that when these  steps

failed  to  prevent Weekley from obtaining interim  custody,  she

fled  with the child.  Additionally, Weekley contended that Siver

had  a  history of involvement with alcohol and violent behavior.

That  same day, the court issued a Writ of Assistance to  Weekley

and  denied Sivers motion to set aside the interim custody order.

The  court set a hearing date of September 18 to further  address

the issue of interim custody.

          Siver   then   filed  a  motion  requesting   expedited

reconsideration  of  the courts decision  to  leave  the  interim

custody  order  in  place until the hearing.  Siver  argued  that

Weekley  had minimized Daltons medical condition in his affidavit

and  attached  copies of Daltons medical records  to  demonstrate

that  Dalton  is  casted on both legs and needs constant  medical

care  and  treatment from the Alaska Native Medical Center.   She

contended  that  because she had been his primary  care  provider

with respect to these treatments and was not employed outside the

home, it would be contrary to Daltons best interests to leave him

in  his fathers care.  Siver also stated that she did not believe

that  her  opposition had been fully considered by the court  and

expressed  concern about her sons medical needs not  being  taken

seriously  and  about  his being enrolled  in  public  school  in

Anchorage.   On  September 12 the court denied Sivers  motion  to

reconsider his September 5 order, explaining that the motion does

not  state a basis to modify the order of September 5,  2001  and

that [n]othing in the material submitted excludes the probability

that the fathers home can provide adequate follow through on  the

childs care.

          An  evidentiary hearing was held on September 18.   The

court heard approximately two hours of testimony, primarily  from

Weekley  and  Siver, regarding the allegations made  by  each  in

their   respective  affidavits.   After  making   some   findings

regarding  Daltons  situation, the court reaffirmed  its  earlier

decision to grant Weekley interim legal and physical custody with

weekend  and  holiday  visitation for Siver.   According  to  the

court, there is more stability leaving Dalton in the school  that

hes in, primarily in the household that hes in.

          Upon   motion  of  the  parties,  the  superior   court

appointed  John Hanscom as custody investigator.   Hanscom  spoke

with both parents and with Dalton, reporting that Dalton did  not

believe  his father and stepmother were being truthful  in  their

statements about his mother, that he had witnessed his stepmother

strike  his father with a pool stick  and that he wanted to  live

primarily with his mother and was angry his father would not  let

him  stay  with  her.  According to Hanscom, Dalton  was  sad  he

cannot be with his mother.  Hanscom visited both homes and  found

each of them to be within community standards.  He recounted both

parents  histories  of involvement with the legal  system,  which

included several domestic violence complaints, most of which  had

been  dismissed.  Finally, Hanscom went through each of the eight

statutory best interests factors outlined in AS 25.24.150(c)  and

concluded  that he believed it would be in Daltons best  interest

for  him  to  be  placed primarily with his mother  and  to  have

weekend and holiday visitation with his father.

          Trial took place on February 19, 2002.  At the close of

the  hearing, the court explained that it disagreed with  Custody

Investigator  Hanscoms recommendations, stating that  it  reached

this  decision,  which is contrary to the recommendation  of  the

custody  investigator,  partly because [it],  in  evaluating  his

ideas about what the facts mean, [came] to different conclusions.

After discussing these discrepancies, the court concluded that it

did  not find them, on a total balance, to be a justification  to

change  the  current situation, which [it found] to be relatively

stable, though imperfect.  The court ultimately held that Weekley

should retain primary legal and physical custody and Siver should

be  permitted visitation three weekends per month and every other

week during the summer.

          Siver appeals.


          Whether the superior court applied the correct standard

of review is a question of law we review de novo, determining the

rule of law in light of precedent, reason, and policy.1

          While  the  trial  court retains  broad  discretion  in

making   decisions   regarding  child   custody,2   its   custody

determination will be set aside where there has been an abuse  of

discretion  or where the findings of fact are clearly erroneous.3

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.4  A factual finding will be deemed clearly erroneous only

if  it  leaves  us   with a definite and firm conviction  on  the

entire record that a mistake has been made, even though there may

be  evidence to support the finding. 5  In reaching a final child

custody determination, a trial court is required to make findings

on the various statutory factors which are sufficient to make the

basis of its decision susceptible to review.6


     The Final Custody Determination

          Siver  raises  several  issues in  her  attack  on  the

superior   courts   final   custody   determination.    Two   are

dispositive, and in several respects meld into each  other.   She

argues  first  that  the  superior court improperly  treated  her

motion  for custody as an action for modification of an  existing

order, pointing to the courts statement that she had not shown  a

sufficient   justification  to  change  the  current   situation.

Second,  she argues that when the court made its final  decision,

it  failed  to  properly  consider the statutory  best  interests

factors.  We consider each argument in turn.

          1.   The decision to grant sole legal custody and primary
               physical custody to Weekley
          1.   As noted, Siver first argues that the court erred by

treating   Weekleys  motion  for  custody  as   an   action   for

modification  of  an existing custody order  rather  than  as  an

initial custody determination.  She maintains that by stating  in

its  final  decision that Siver had not demonstrated a sufficient

justification to change the current situation, that is,  the  one

created  by  its  interim custody order, the  court  treated  the

proceeding as one for modification.  Siver argues:

          Since  she received no hearing on the  motion
          that deprived her of custody originally,  (or
          even notice of the existence of such a motion
          prior to its being improperly granted by  the
          lower  court), it would seem clear  that  the
          lower    court   was   not   interested    in
          consideration  of  evidence   but   only   in
          maintaining   the  status  quo   during   the
          pendency  of  the  lower  court  proceedings.
          This appeal is based on the extension of that
          judicial  attitude throughout the proceedings
          and its application to the lower courts final
          ruling in this case.
          In  response, Weekley contends that the courts language

did  nothing  more  than  state the obvious  fact  that  awarding

custody  to  Mr.  Weekley meant that the current situation  would

remain  as is, and that appellants argument, premised on a single

phrase  of dicta, failed to show that the court based its  ruling

on  the  changed circumstances doctrine.  Weekley concludes  that

the  courts  findings and conclusions do not suggest in  any  way

that  he  limited  his consideration of the evidence  to  changed


          We  agree  with Siver that the proceedings were  flawed

from  the  outset,  and that by leaving the  situation  in  place

without  evaluating  which placement would  be  in  Daltons  best

interests,  the trial court applied an inappropriate standard  in

reaching its ultimate decision.  It is undisputed that the  court

ruled  on  Weekleys  motion for interim  custody  without  having

received a reply from Siver and prior to the time having run  for

her  to  reply.   It is also clear that the court  denied  Sivers

motion  to set aside the interim order pending a hearing.   While

it  did  grant Sivers request to hold an evidentiary hearing,  it

does  not  appear  to  have conducted a thorough  best  interests

analysis at the close of that hearing, but instead seems to  have

relied almost exclusively on the stability created by its earlier

decision to justify leaving Dalton in the primary custody of  his


          At  the  close  of  the  evidentiary  hearing  held  on

September 18, the court made the following findings:

          This  is a real hard case because of a couple

          of  things.  One is, there is some  testimony

          that  there is no physical violence.  I  dont

          think  I fully accept that notion.  There  is

          an  anger  on the mothers side, on the  other

          hand, which  is [I] suppose in part justified

          by  any  kind  of behavior by  dad   that  is

          equally  harmful,  however.   I  rarely   see

          witnesses  any  more  angry  than   mom   has

          presented  herself  to be,  and  that  is  an

          awfully hard thing to hide from a child,  and

          really  feeds into how the child feels  about

          the  world  and life and fair  play  and  all

          these  things.  So there are a lot of  things

          where  both  of you need to work on  how  you

          relate  to the world, to each other,  and  to

          Dalton.  In the best interests of the  child,

          you look at a lot of factors and counsel have

          talked  about  a  lot  of  them.   Stability,

          ability  to  try to promote [a]  relationship

          with  the other parent, the capacity to  care

          for them, the existence of domestic violence.

          A   lot  of  these  things  that  are  to  be

          considered  and summed up.  And  in  summary,

          there  are things going for each of  you  and

          against each of you on these things.  At this

          point,  however, I think that there  is  more

          stability  leaving Dalton in the school  that

          hes  in, primarily in the household that  hes

          in, so that will be the courts order.

(Emphasis  added.)  Along the same lines, at  the  close  of  the

custody  hearing, the court considered various arguments  offered

by  Siver  and  concluded that it did not find them  on  a  total

balance  to  be  a justification to change the current  situation

which [it found] to be relatively stable though imperfect.  It is

difficult  to  escape  the  impression that  the  superior  court

approached the final custody order, as it had the initial custody

hearing,  with  the sense that Siver bore the burden  of  showing

changed  circumstances  in  order  to  justify  changing  Daltons

placement.  If the court did so, it erred in two respects: First,

Siver did not bear any burden of showing changed circumstances at

either  hearing.7 Second, the original placement of  Dalton  with

his  father  had resulted from an ex parte order  that  had  been

issued with no notice to Siver nor any opportunity for her to  be

heard  before it issued.  That placement did not create a  hurdle

for Siver to overcome.

          The  stability developed during the period between  the

grant  of  interim custody and the courts final custody  decision

may be a relevant factor in the courts analysis, but it cannot be

the  primary  basis  for the courts decision.   In  Velasquez  v.

Velasquez,8 we held that while the superior court may  take  into

account  as a factor the period of time between the entry  of  an

initial  and a final custody award, there is no requirement  that

the  court  do  so,  nor  may  the  court  accord  a  presumptive

preference  to  the parent who had interim custody.9   To  do  so

would  deprive  the  noncustodial parent  of  the  benefit  of  a

decision based on a fully developed record.10  To do so under the

circumstances of this case would be even more problematic,  since

the  courts  August 29 interim custody order was  entered  before

Siver  had  a  chance  to reply to Weekleys allegations  and  its

September  18  interim custody order left its  initial  order  in

place without a substantive discussion of other relevant factors.

          In  reaching its decision at the close of the September

18   hearing  regarding  interim  custody,  the  superior   court

mentioned some of the considerations relevant to a best interests

determination.   However, its conclusion indicates  that  it  was

primarily  interested in maintaining stability in  Daltons  life,

and  that Dalton should therefore remain with his father.   While

we agree that stability is important, especially in the life of a

young  child,  it  cannot  be the paramount  consideration  under

circumstances  such  as these.  Prior to the filing  of  Weekleys

motion for interim and permanent custody, Dalton had evenly split

his  time between his mother and father.  The hearing took  place

within three weeks of the date the motion was filed.  By ordering

that  Dalton  remain  in  his  fathers  custody  because  of  the

stability it affords, the court necessarily affirmed its  initial

order, which itself was erroneously entered before Siver had been

given an opportunity to reply.  Given this procedural deficiency,

we  can  neither sanction the entry of the interim custody  order

nor  allow it, de facto, to stand as an order requiring Siver  to

          show changed circumstances in order to attack.

          The  final custody order does not clearly set out  what

standard  the  court applied in its decision.  The  only  glimpse

provided into the courts thought process was the reference to the

absence  of  a  justification to change  the  current  situation.

Because this statement reflects the use of what is essentially  a

presumptive  preference for Weekley based on the  courts  interim

custody decision, we vacate the courts final order.

          2.   The statutory best interests factors
          Siver  makes  two main arguments with respect  to  this

issue.   First, she maintains that the court essentially  ignored

all  factors  but one, the desire and ability of each  parent  to

allow  an open and loving frequent relationship between the child

and  the  other parent, thereby failing to properly consider  the

statutory best interests factors.  Next, she claims that  it  was

an  abuse  of  discretion not to place specific emphasis  on  the

seventh  factor  evidence of domestic violence, child  abuse,  or

child neglect.

          Decisions  regarding  the award of  child  custody  are

governed by AS 25.20.060, which provides in relevant part:

          (a) If there is a dispute over child custody,
          either parent may petition the superior court
          for   resolution  of  the  matter  under   AS
          25.20.060-25.20.130.  The court  shall  award
          custody on the basis of the best interests of
          the child.  In determining the best interests
          of  the  child, the court shall consider  all
          relevant  factors  including  those   factors
          enumerated in AS 25.24.150(c).
Alaska  Statute 25.24.150(c) sets out the factors a court  should

consider  in determining the best interests of the child.   These

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 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 continuity;
          (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
Whether   involved   in  an  initial  or  final   child   custody

determination,  a  parent desiring custody must demonstrate  that

placement  of  the child with him or her would be in  the  childs

best  interests.11  In undertaking this best interests  analysis,

the  trial  court  need  not specifically address  the  statutory

factors  detailed in AS 25.24.150(c), and make explicit  ultimate

findings  that  the  best interests of the children  require  the

custodial disposition reached, but its findings must either  give

us  a  clear  indication of the factors which the superior  court

considered important in exercising its discretion or allow us  to

glean from the record what considerations were involved.12

          The   court  is  encouraged  to  consider  these  eight

statutory  factors,  as  well as other  factors  that  the  court

considers  pertinent in deciding what placement is  in  a  childs

best interests.13  Siver maintains that the trial court considered

one  of  these factors to the exclusion of all others  the desire

and  ability of each parent to allow an open and loving  frequent

relationship between the child and the other parent.14  In  doing

so, she argues, the court essentially ignored factors such as the

childs  needs, each parents ability to meet those needs, and  the

love  and  affection existing between the child and each  parent.

Siver  also argues that the court failed to consider the  seventh

          factor, which discusses the impact of evidence of domestic

violence  or  child abuse.  She claims that the record  contained

ample evidence of Ronald Weekleys temper, his physical and verbal

abuse  toward both Ms. Siver and the child and his prior  history

of domestic violence directed against Ms. Siver.  Making specific

findings only on her ability to foster an open relationship  with

Weekley,  Siver  maintains that the trial court appears  to  have

used  Ms.  Siver[s] decision to move to the Mat-Su  Valley,  some

forty  miles  from Anchorage, her temporary denial of  visitation

based  on  concerns over her childs health care, and her apparent

inability to hide her feelings on the witness stand as the  basis

for  its  decision.   According to Siver,  this  amounts  to  the

placement of disproportionate weight on one factor while ignoring

other  relevant factors, and therefore constitutes  an  abuse  of


          Weekley  responds by cataloguing each  factor  and  the

evidence  before the court which supported it.  He contends  that

the  trial court considered this evidence in making its  findings

of  fact and conclusions of law under the statutory best interest

factors.   Regarding  Sivers claim that  the  court  afforded  AS

25.24.150(c)(6)  too  much  weight, Weekley  maintains  that  the

significant consideration given to this factor by the  court  was

justified  by the courts express finding that Sivers  expressions

did  not  give the court any confidence that she would contribute

to   making   it  easy  for  the  father  to  have  a  continuing

relationship  with  the  child.  Finally, Weekley  justifies  the

courts failure to address the issue of domestic violence or child

abuse by noting that the custody investigator reported that there

was no evidence of domestic violence in either parents home.

          The court made only limited findings.  First, regarding

Daltons  expression of preference to live with  his  mother,  the

court  found that this was based not on a genuine desire to  live

with his mother or, as Hanscom posited, an expression of his love

and  affection for his mother, but as a way of helping his mother

because  she  was  hurt by these proceedings.15  Next,  regarding

Daltons  expression of meanness in dads home and his  experiences

with  other  hurtful and inappropriate conduct, the  court  found

that  these  things  were  harmful and  .  .  .  shouldnt  occur.

Finally,  on  the  issues  raised  by  Siver  regarding  Weekleys

unwillingness to foster a relationship between her and  her  son,

the  court found that Weekleys exclusion of Siver from  a  school

conference,  his  refusal to allow Dalton to go  to  a  Halloween

event with his mother, and his screening of Sivers calls were all

reasonable.16  The court made no additional findings, nor did  it

make  any mention of AS 25.24.150(c) or specifically in what  way

Daltons best interests would be better met by placement with  his


          In  Borchgrevink  v. Borchgrevink,17 we  held  that  in

making  a  final child custody determination, a trial court  need

not  specifically address the statutory factors  detailed  in  AS

25.24.150(c), and make explicit ultimate findings that  the  best

interests  of  the  children  require the  custodial  disposition

reached,  so  long  as  its  findings  either  give  us  a  clear

indication  of  the factors which the superior  court  considered

important in exercising its discretion or allow us to glean  from

the  record what considerations were involved.18  We went  on  to

explain  that  it was not error for the trial court  to  fail  to

expressly  address factors not disputed by the parties and  those

which  did  not  favor the parent to whom custody  was  denied.19

However,  in Borchgrevink, unlike in the present case, there  was

no  significant  dispute involving most of the statutory  factors

and  the  court  made extensive findings regarding  all  relevant

factors and stated the legal conclusions underlying its decision.20

          Aside  from  AS 25.24.150(c)(6), it is not clear  which

factors the court found important to this inquiry or why.  As  in

Park v. Park,21 in which we held that the superior court had erred

in  considering only one factor to the exclusion of  all  others,

while the superior courts findings clearly indicate one statutory

          factor that the court considered important to its analysis, they

provide  no  meaningful insight into what the  court  thought  of

other  factors that undisputedly had relevance under the evidence

actually presented at trial  or whether the court even considered

other relevant factors.22

          There  is no indication of the courts views on  Daltons

medical, emotional, educational, or social needs, on which parent

can  better meet those needs, on Daltons relationships  with  his

stepparents  or siblings, on his fathers admitted temper,  or  on

which  parent  provides  the more appropriate  home  environment,

despite each of these issues having been raised by the parties at

trial.   While the court need not make findings on every possible

issue,  it  should  at least make findings on  those  which  were

relevant  and which ultimately influenced its decision.   Because

it is not clear to us which factors the superior court considered

important or what other considerations were involved in  reaching

its  decision, we remand for the superior court to make  specific

findings  on all relevant factors as required by AS 25.24.150(c).

Upon  remand,  the parties should be allowed to  present  updated

evidence to the court.23


          Because it was error to accord a presumptive preference
to  Weekley based on the interim custody decision and because the
court  relied  on  one  statutory best interests  factor  to  the
exclusion of all others, we REMAND for a new determination, based
on  all  of  the currently available evidence, of which placement
will be in Daltons best interests.
     1    Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).

     2    Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002).

     3    Id.

     4    Id.

     5     Duffus  v.  Duffus, 932 P.2d 777,  779  (Alaska  1997)
(quoting Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991)).

     6    Id.

     7     Barrett  v.  Alguire,  35  P.3d  1,  5  (Alaska  2001)
(explaining that existing child custody or visitation  award  may
be  modified under certain circumstances; where no such award has
yet been entered, no basis exists for modification).

     8    38 P.3d 1143 (Alaska 2002).

     9    Id. at 1148-49.

     10     Id. at 1149.  See also McDanold v. McDanold, 718 P.2d
467, 470 n.4 (Alaska 1986) (stating that custodial parent may not
be  given presumptive preference in final custody disposition  so
as to prevent pretrial custody maneuverings); Carle v. Carle, 503
P.2d  1050,  1053 n.6 (Alaska 1972) (observing that  while  there
might be some preference for leaving child in care of parent  who
most  recently  had custody, this court would not establish  such
presumption   lest  it  lead  to  pre-hearing   maneuvering   for
possession  of the child), overruled on other grounds by  statute
as noted in Deivert v. Oseira, 628 P.2d 575, 579 (Alaska 1981).

     11    Velasquez, 38 P.3d at 1146.

     12     Borchgrevink  v. Borchgrevink, 941 P.2d  132,  139-40
(Alaska 1997).

     13    AS 25.24.150(c).

     14    AS. 25.24.150(c)(6).

     15     This  finding  is related to AS 25.24.150(c)(3),  the
childs  preference if the child is of sufficient age and capacity
to form a preference.

     16    These latter three findings are most closely related to
AS  25.24.150(c)(6), the desire and ability  of  each  parent  to
allow  an open and loving frequent relationship between the child
and the other parent.

     17    941 P.2d 132 (Alaska 1997).

     18    Id. at 139-40.

     19    Id. at 138.

     20    Id. at 135-37.

     21    986 P.2d 205 (Alaska 1999).

     22    Id. at 208.

     23     Siver  also  challenges some of  the  courts  factual
findings   as   clearly  erroneous.   Because   we   remand   for
consideration of all currently available evidence, in  which  new
factual findings will have to be made, we do not consider  Sivers
challenges  to factual findings made in the course of  the  first