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Andrea S v David R (07/08/2005) sp-5920
Andrea S v David R (07/08/2005) sp-5920
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| ANDREA S.,
| ) |
| | ) Supreme Court No. S-
11570 |
| Appellant, | ) |
|
| ) Superior Court No. |
| v. | )
3PA-02-535 CI |
|
| ) |
| DAVID R., | ) O P I N I
O N |
| | ) |
| Appellee.
| ) [No. 5920 - July 8, 2005] |
|
| ) |
|
|
<
PRE>
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Palmer,
Eric Smith, Judge.
Appearances: Justin R. Eschbacher, Law
Office of G.R. Eschbacher, Anchorage, for
Appellant. No brief filed by Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
MATTHEWS, Justice.
After Andrea S. and David R. divorced,1 David was
granted physical and legal custody of four of the couples five
children. Andrea moved to modify this custody arrangement and
sought custody of these four children based on allegations,
substantiated by the Office of Childrens Services (OCS), that two
of the children, both under age fifteen, had sexual intercourse
with each other. The superior court denied the motion, denied a
subsequent motion for reconsideration, and issued an order
requiring David to carry out all OCS recommendations with respect
to the children, including a recommendation that the two children
who had sex not live under the same roof. Andrea raises three
issues on appeal, all related to whether the superior court acted
properly in issuing its orders without an evidentiary hearing and
without making the findings necessary to transfer physical
custody of a child to someone who is not the childs parent.
These are legal issues that we review de novo.2
Andrea contends that the superior courts order
effectively modifies the original custody decree, and that the
superior court erred by failing to hold a hearing. We agree. An
evidentiary hearing is required whenever a custody decree is
modified over the objection of one parent,3 and this is what
happened here. The original decree granted David physical
custody of the four youngest children. The order on appeal was a
modification of this order, in that it requires David to carry
out OCSs recommendations, and these recommendations in turn
require that the two children involved in the sex incident not
reside under the same roof. David has complied with this
recommendation by moving one of the children, Cathy, in with the
childs maternal uncle. Since physical custody means [t]he right
to have the child live with the person awarded custody by the
court,4 and since the courts order withdraws this right as to at
least one of the children, the order has modified the original
grant of physical custody to David. As the superior court
acknowledged, neither parent at present has physical custody of
Cathy.
David argued in the superior court that there has been
no real modification of physical custody because the move to the
uncles house is only temporary. It may be that no hearing is
required when a court orders a parent to surrender physical
custody on an emergency basis, until additional proceedings can
be had; in such cases it is possible that the non-custodial
parents right to have a say in who cares for the child over such
a short period should be trumped by exigent circumstances. But
that is not this case. The superior courts order does not
purport to be temporary in this way; in fact, the OCS
recommendations endorsed by the superior court say they apply
indefinitely. In these circumstances, Andrea should have been
provided with a hearing before such an order was entered, so as
to give her a chance to be heard on why a different custody
arrangement should be preferred over whatever indefinite period
the child is ordered to live outside Davids home. We will
therefore remand the case to the superior court so that it may
conduct such a hearing.
Andrea also argues that the superior court erred in
that it did not make the findings that are required before a
child is put in the custody of someone who is not the childs
parent. We agree. The rule is that the court cannot grant
custody of children to non-parents unless there is clear and
convincing evidence that the parent is unfit for the trust of the
child, or that the welfare of the child requires it to be in
custody of the non-parent.5 This rule applies in cases where
physical custody is awarded to a non-parent, even though at least
one parent retains legal custody.6 Since the superior courts
order approves an arrangement whereby the uncle (or another
person selected by David) exercises physical custody of Cathy,
Andrea is entitled to know why she has not been granted physical
custody instead, and specifically to know whether there is clear
and convincing evidence either that she is unfit for Cathys trust
or that Cathys welfare requires her to be in the custody of the
uncle or some other non-parent. On remand, the superior court
should determine whether these requirements have been met before
approving placement of Cathy outside one of the parents homes.
The final issue is whether the superior court should
have held a hearing before it determined that custody
arrangements should not be modified with respect to the three
children remaining in Davids home. We conclude that the superior
court also erred on this point. Andreas modification motion
sought physical and legal custody not just of Cathy, but of the
two youngest boys living with David. Andrea also sought legal
custody of the eldest boy (the one who had sex with Cathy), but
proposed that he remain in Davids home pending possible in-
patient counseling. The superior court denied this motion
without a hearing and left David with physical and legal custody
of all three boys.
The rule is that there must be an evidentiary hearing
before a motion for modification of custody is denied, except in
cases where the movant has failed to carry her burden of
identifying at least a genuine factual dispute as to the
existence of a change in circumstances.7 Here, the superior
court acknowledged that the sex incident between Cathy and her
brother constituted a change in circumstances, but denied the
motion without a hearing. The superior court should have given
Andrea an opportunity to show that the changed circumstances,
considered in conjunction with other relevant facts bearing upon
the [childrens] best interests, warrant modification of the
custody decree.8
On remand, the superior court is not required to hear
evidence on incidents that were aired in the original divorce and
custody proceedings. Until the superior court issues its
decision on remand, it may leave the existing custody arrangement
undisturbed.
For the foregoing reasons, the superior courts orders
of May 19, 2004, and June 29, 2004, are VACATED. The case is
REMANDED for further proceedings.
_______________________________
1 Pseudonyms have been used to protect the identity of
family members.
2 See C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska 1998)
(whether there should have been a hearing on a custody motion is
a question of law), overruled on other grounds by Evans v.
McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).
3 Hernandez v. Freeman, 938 P.2d 1017, 1018 (Alaska
1997).
4 Blacks Law Dictionary 390 (7th ed. 1999).
5 Evans, 88 P.3d at 1083, 1085 (internal quotation marks
omitted).
6 See Miele v. Gregory, 281 S.E.2d 565, 567 (Ga. 1981)
([W]here a surviving parent sues to obtain custody of his or her
minor child from a third party who has physical, but not legal,
custody of the child, the parent is entitled to custody unless it
is shown by clear and convincing evidence that the parent has
lost his right to parental custody and control by abandonment of
the child or other legal ground.).
7 Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001)
(Once the movant meets [the] threshold burden [of making prima
facie showing of a substantial change of circumstances] . . . she
is entitled to a hearing to consider whether, in light of such
changed circumstances, it is in the childs best interest to alter
the existing custodial arrangement. ).
8 Lee v. Cox, 790 P.2d 1359, 1361 (Alaska 1990). See
also 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.).
