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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Chesser-Witmer v. Chesser (07/15/2005) sp-5923

Chesser-Witmer v. Chesser (07/15/2005) sp-5923

     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,


) Supreme Court No. S- 11512
Appellant, )
) Superior Court No.
v. ) 4FA- 01-112 CI
Appellee. ) [No. 5923 - July 15, 2005]
          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances:  Gloria  Hanssen   Hooper,   Law
          Office of Rita T. Allee, P.C., Fairbanks, for
          Appellant.  Michael A. Chesser, pro se,  Fort
          Drum, New York.

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

          CARPENETI, Justice.

          A  custody order gave ex-spouses joint legal and shared
physical  custody  over their young daughter.  Two  years  later,
upon learning that the Army was transferring him to New York, the
father  moved to modify custody, seeking physical custody of  the
child  during  the school year.  The superior court  granted  the
modification.   The  mother appeals, arguing  that  the  superior
court erred in its factual findings and abused its discretion  in
granting  the modification.  Because the superior courts  factual
findings  are  supported  by substantial  evidence  and  are  not
clearly erroneous, and because the trial court did not abuse  its
discretion in making the custody determination, we affirm.
          Michael  and  Laurie Chesser1 married on  December  24,
1997  in  Tennessee.  Michael has been in the  Army  since  1991.
During  the  marriage, Michael was stationed at  Ft.  Wainwright,
near Fairbanks.  Their only child, Bryanna, was born on September
16,  1998.  Michael and Laurie separated on January 9, 2001,  and
two  days  later  Laurie  filed a complaint  for  divorce.   Both
          parents requested primary physical custody of Bryanna.
          After a two-day trial, Superior Court Judge Richard  D.
Savell  issued  a  Decree of Divorce and  Findings  of  Fact  and
Conclusions  of Law on December 12, 2001.  With regard  to  child
custody,  the  order  concluded that  it  was  in  Bryannas  best
interest  to  give  the parents joint legal  custody  and  shared
physical custody.  It set forth a detailed schedule, as follows:
          A.   Mr.   Chesser  shall  exercise  physical
               custody from Friday evening until Sunday
               evening and from Wednesday evening until
               Thursday  morning.   Ms.  Chesser  shall
               exercise  physical custody  from  Sunday
               evening until Wednesday evening and from
               Thursday morning until Friday evening.
          B.   [I]n  addition  . . . Mr.  Chesser  will
               exercise  a three-overnight weekend  one
               time a month . . . .
          C.   The  times for exchanges . . . shall  be
               set by agreement of the parties.
          D.   Both parties will be entitled to take  a
               two-week  vacation with the minor  child
               outside the Fairbanks area . . . .
Though  Laurie  was not denoted as the primary custodian  in  the
order  or  elsewhere,  this schedule gave  Laurie  slightly  more
physical   custody   than  Michael.   The  court   ordered   this
arrangement in part because it anticipated that Michael would  be
unavailable for up to seventy-five days per year due to  military
deployment.  The order also provided that if either parent  needs
child  care for a period of two hours or longer, the other parent
must  be  given  the opportunity to care for the  child  if  that
parent is available.2
          About one year after entry of this order, Michael moved
for  modification of the custody schedule.  Because his  position
in  the Army had changed to Permanent Rear Detachment  a position
with  apparently  no  risk of deployment   Michael  requested  an
exactly  equal share of physical custody.  His calculation  asked
for  an additional fourteen to fifteen days per year.3  On  March
3, 2003 Judge Savell denied Michaels motion.
          In  January 2004 Michael learned that the Army  planned
to  transfer  him  to Fort Drum, New York the  following  summer.
Wanting  to  take  Bryanna with him and have custody  during  the
school  year, Michael again filed for modification.  He  proposed
that  Laurie  have custody during summers and holidays.   Michael
sought modification based on his impending transfer and based  on
Lauries  alleged  violations  of the  existing  court  order  and
parenting behavior alleged to negatively affect Bryannas welfare.
He  attached  a list of these violations, and later  supplemented
the  list.  He alleged that Laurie frequently left Bryanna  in  a
third  partys care for two or more hours without first contacting
Michael,  and that Bryanna was often not available for  telephone
contact  during  their agreed-upon times.  He also  claimed  that
Bryannas personal hygiene and health suffered while she was  with
Laurie,  that  her school performance was substandard,  including
          numerous tardy arrivals,  and that she was harmed by other
conduct of  Laurie.
          Laurie   opposed  the  motion,  arguing  that  Michaels
complaints  were exaggerated or unfounded and that  Michaels  own
conduct  had  been less than ideal.  She pointed out that,  since
the   divorce,  Michael  had  moved  seven  times,  had  numerous
girlfriends, drank excessively, and had been convicted of driving
while intoxicated.
          Trial on Michaels motion to modify custody was held  in
May  2004.  Testimony at trial supported the pretrial allegations
of  both  parties:  principally, that  Laurie  had  violated  the
existing court order regarding Bryannas contacts with her father,
and  that  Michael had problems with alcohol and had  experienced
instability  in his living arrangements.  The trial  also  showed
the following.
          Laurie runs an assisted-living facility for the elderly
out  of  her  home.  The assisted living home comprised  the  top
floor  of  the  house,  while the family (including  Laurie,  her
husband,  her  step-son, and Bryanna) occupied the  lower  floor.
The  business normally housed between two and four patients, with
a  staff  of  two employees.  Laurie regularly used  one  of  the
businesss  employees  to babysit Bryanna.  On  one  occasion,  an
elderly  patient  napped  in Bryannas bed  for  about  forty-five
minutes.  Laurie testified that the living situation was good for
Bryanna because it allowed Laurie to work mostly at home.
          Two  of Michaels ex-girlfriends testified regarding his
drinking habits and occasional argumentative/aggressive behavior.
In  addition, Lauries husband testified that Michael had referred
to  Laurie in a derogatory manner.  However, there was  no  clear
testimony  that  such  behavior occurred  while  Michael  was  in
Bryannas  presence.  Michael conceded that his  living  situation
had  been unstable, but suggested that his situation had improved
he   was  in  a  serious  committed  relationship  that  included
discussion   of  marriage.   Michael  and  his  girlfriend   both
testified about their strong connection with Bryanna.
          There   was   extensive  testimony  that  communication
between  Laurie  and Michael had broken down.  Michael  testified
that  he  felt  like  Laurie was more likely to  give  additional
visitation when their relations were going well, and less  likely
to  do  so  when they were not.  Michael testified that,  by  his
calculations,  there were seventy-two violations of  the  custody
provision  regarding babysitting, and forty-four  occasions  when
Bryanna  was  not available to talk on the telephone.4   He  also
complained that Laurie failed to inform him about Bryannas school
performance, or involve him in the decisions to enroll Bryanna in
the Sylvan Learning Center and in private therapy.
          There  was no expert testimony presented at the  trial.
Bryannas  therapist testified that the primary source of Bryannas
unhappiness  was the conflict between her parents.  However,  she
noted  that  Bryanna was generally fine and enjoyed a very,  very
strong relationship with both parents and stepparents.  She  also
testified that:
          If  [Bryanna] stayed with her mother, she was
          going  to  be  devastated by dad  moving  and
          being  so  far away.  And if she  moved  with
          dad, she was going to be devastated that  mom
          and brother were going to be so far away.
Bryannas  therapist also testified that Bryanna was  happy  about
moving with her father, but that she was sad because she said her
father  had  told her that she would never see her mother  again.
Though the therapist said it would have been advantageous to have
full-family  counseling, she did not involve Michael  because  of
her  negative  impression  of him during  their  first  and  only
          Following  the trial, Judge Savell modified custody  in
favor of Michael.  He found a substantial change in circumstances
based  both  on  Michaels impending move  and  on  other  changes
relating  to the statutory best interest factors.  He  emphasized
certain  facts: that Laurie had abused the authority she has  had
by   inadequately  sharing  co-parenting  responsibilities;  that
living  in a house with an assisted-living facility may not  have
been a healthy environment for Bryanna; and that Laurie failed to
be  fully open with Michael on parenting issues, which caused  an
increase  in  distrust.   Judge Savell  concluded  that  Michaels
alcohol  use,  while a concern, was not a negative  mark  on  the
custody scale because it was not done in front of Bryanna and was
not shown to have affected her.5  He also found that there was no
domestic  violence and that it was significant that the therapist
testified  without  criticism, contradiction or  hesitation  that
Bryanna was excited to go with her father.
          Judge  Savell stated that the case was extremely  close
and  that  no  independent  factor led  to  his  conclusion.   He
concluded that the two factors tipping the balance were  (1)  the
unhealthy,  excessive  exposure to and  reliance  upon  the  home
health  care  business, and (2) Lauries abuse  of  authority  and
interference  with  an open, frequent, loving  relationship  with
Michael.   He  concluded that: it is in the childs best  interest
and  .  .  . both parents will have greater access . . .  if  the
child is given a chance to reside with Mr. Chesser in Fort Drum.
          Judge  Savell gave many additional instructions to  the
parents, including that  Bryanna was to remain with Laurie during
the  summer  until Michael was settled in New York  and  that  if
Michael was later deployed, Bryanna would return to Laurie.  Most
significantly,  the  court  provided that  the  modified  custody
order,  though  a  final order,  had a one year duration  and  no
more.   He ordered the parents to file status reports by  May  1,
2005,  setting forth their respective personal progress  and  the
successes or failures they have had in co-parenting their  child.
Judge  Savells rationale behind this arrangement was  to  reverse
the  roles  to  raise  each  parents standards  of  conduct.   He
instructed Michael that he should demonstrate how [parenting]  is
supposed to be done and that if he abuses his custodial power, he
will quickly lose it.
          Judge  Savell subsequently denied Lauries  motions  for
reconsideration  and for stay of enforcement.  Laurie then sought
emergency supreme court reconsideration of the order denying  the
motion  for stay pending appeal, which we denied in August  2004.
          This appeal followed.
          The  trial court has broad discretion in child  custody
decisions.  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.6
          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.  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.7
     A.   The  Trial  Courts  Findings of Fact Were  Not  Clearly
          Laurie  argues  that  two of the trial  courts  primary
factual  findings were clearly erroneous:  (1) that the  assisted
living home was harmful to Bryanna and (2) that Laurie interfered
with Michaels relationship with Bryanna.
          1.   Assisted living home
          The  trial court found an unhealthy, excessive exposure
to  and  reliance  upon the home health care business  with  this
child.   Judge  Savell  noted that it is not  always  a  pleasant
business  and  that  patients  wander,  act  unpredictably,   and
ultimately die.  He agreed with testimony that clients should not
be present in the residential quarters and expressed worry that a
client  had  napped  in Bryannas bed.  He also expressed  concern
that  employees of a care facility [were] substitute parents  and
stated:  you  cant  rely on the charges, the wards,  the  elderly
patients  for  whom  you  care to be a  social  outlet,  friends,
roommates or bed-mates of a child.
          While  acknowledging  that  she  operates  an  assisted
living  home,  Laurie argues that it should be a non-issue.   She
points to the testimony of Ms. Kathleen Evans, a care coordinator
for  the  state,  for  the proposition that the  contact  between
Bryanna  and  the  patients  is actually  beneficial.   She  also
complains  that Michaels testimony provided the only evidence  of
any  detriment, and that this evidence consisted only of the one-
time nap incident.
          The  facts in the record were sufficient for the  court
to  find  the assisted living home a concern.  There was evidence
of  troubling aspects of this living arrangement, even if it  was
something  of  an  exaggeration to refer to clients  as  Bryannas
social outlet, friends, roommates.  First, Laurie conceded that a
client  had indeed napped in Bryannas bed for forty-five minutes.
Her excuse  that the client wanted to watch I Love Lucy and there
was apparently no other television available  did not satisfy the
trial  court.  Although there was no evidence that this  incident
negatively affected Bryanna, she found it significant  enough  to
mention  to  Michael.  Second, the evidence showed  that  one  of
Bryannas regular babysitters was an employee of the facility.  As
Laurie  was enrolled in classes and held a second part-time  job,
          Bryanna was often in the employees care before or after school.
Third, Bryannas excessive school tardiness was in part due to the
operation of the facility  Mr. Witmer could not drive Bryanna  to
school  until  an employee arrived for the morning  shift,  since
elderly clients cannot be left without some supervision.
          Laurie  attempted  to  offset this  evidence  with  the
testimony of Kathleen Evans.  Ms. Evans, the care coordinator for
the  state, made regular biweekly visits to the care facility  as
part  of  her  job,  but  she  never saw  the  downstairs  living
quarters.   She  gave her personal opinion8 that  small  children
living  in such a setting will not be traumatized if the  parents
handle  it  correctly.  She explained that  children  could  form
bonds  with the clients, and that if children are talked  to  and
told   about  the  cycles  of  life,  .  .  .  they  can   handle
it  .  . . just as if . . . their father died or the brother died
or  a dog died.  She added that the patients normally die in  the
hospital,  not  in  the house.  The testimony of  Ms.  Evans  was
apparently not entirely convincing to Judge Savell.   It  is  the
function of the trial court, and not this court, to determine the
weight and effect of the testimony.9
          Ms.  Evanss  testimony can be viewed as supporting  the
notion  that  living  in  a home containing  an  assisted  living
facility could present unsettling and even frightening situations
for a child, if not handled correctly.  Combined with the napping
incident,  the  employee babysitting, and the  late  arrivals  to
school, we conclude that the court did not clearly err in finding
this  living arrangement a concern and assigning some  weight  to
          2.   Interference    with    Michael    and    Bryannas
          The  trial court also found an abuse of authority  that
has let emotional involvement get in the way of [Lauries] ability
to   allow  an  open,  frequent,  loving  relationship  and   has
interfered  with  that  by making decisions  and  taking  actions
unilaterally  and . . . interfering with or not facilitating  the
communication that had become a pattern.  Similarly, Judge Savell
found that Laurie failed to adequately co-parent by relying  upon
the  employee, rather than Michael, to babysit Bryanna, and  that
her  irrational and emotional responses obstructed  communication
and deepened mutual mistrust.  Rather than make specific findings
regarding  particular symptoms of Laurie and Michaels antagonism,
such  as the number of missed phone calls, the court stressed  it
was more important to examine the behavior of the parties in what
each  side  acknowledges to have become a  practice.   The  judge
thought  Laurie viewed Michael as a pain in the neck and  figured
it  was easier not to deal with him.  Consequently, she let  such
feelings get in the way of Michael and Bryannas relationship.
          On  appeal,  Laurie seems to argue that  there  was  no
interference because Michael enjoyed ample visitation.  She notes
that  he  enjoyed  171  overnights in 2003,  that  she  regularly
accommodated his scheduling needs, and that she even let him stay
in  the  Witmers guest house on occasion to be closer to Bryanna.
She  also claims that any interferences with babysitting were  at
best technical violations of the order.
          These  arguments  miss  the mark.   The  point  is  not
whether  Michael  has  had  enough visitation  and  contact   the
question   is   whether   Lauries  acts   interfered   with   the
relationship.    There   was  testimony   suggesting   that   she
arbitrarily  refused consent for Michael to  take  Bryanna  on  a
Canadian  vacation.   Moreover,  Michael  testified  that  Laurie
interfered  with his babysitting opportunities seventy-two  times
and  his  telephone contact forty-four times.  While  she  argues
that some of these instances may be exaggerated or unfounded, she
generally gives no response or excuse for her actions,  and  even
concedes that some were violations of the custody order (when she
called  them  merely technical).  In light of the  evidence  that
Laurie obstructed Michael from co-parenting, we conclude that the
trial courts finding of interference was not clearly erroneous.
     B.   The  Trial  Court  Did  Not  Abuse  Its  Discretion  in
          Granting the Modification.
          Lauries  final contention is that the court abused  its
discretion  by modifying the custody order.  She argues  that  it
failed  to  consider all of the factors mandated by  statute  and
assigned  disproportionate weight to one  factor  while  ignoring
others.   More specifically, she maintains that the court  failed
to   adequately  consider  the  factor  regarding  stability  and
continuity of the relationship with the child.
          An award of child custody or visitation may be modified
if  the  court  determines  that: (1) a change  in  circumstances
requires  the  modification of the award and (2) the modification
is in the best interests of the child.10  The court must enter on
the  record its reason for the modification.11  The moving parent
bears  the burden of showing a significant or substantial  change
in circumstances.12  Such a change exists as a matter of law when
a  custodial  parent  moves out of state.13  This  rule  includes
custodial parents who have joint custody.14
          The trial court in this case found a substantial change
in  circumstances  based on Michaels move and  on  other  changes
relating  to  the  statutory best interest  factors  (presumably,
parental decisions impacting Bryannas welfare).  Because the out-
of-state  move was a sufficient ground upon which to satisfy  the
statutory  requirement,  we need not review  the  second  ground.
Michael  is a custodial parent, and it has not been alleged  that
his move had an illegitimate purpose.15  Moreover, Laurie does not
argue  on  appeal that the court erred in finding  a  substantial
change in circumstances.  Thus, our review addresses only whether
the courts best interests findings were an abuse of discretion.
          In  determining the best interests of a child, a  court
is  required  to  consider the nine factors of AS 25.24.150(c).16
These factors include:
          (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  willingness  and  ability  of  each
          parent  to facilitate and encourage  a  close
          and continuing relationship between the other
          parent and the child . . . ;
          (7)  any evidence of domestic violence, child
          abuse, or child neglect . . . 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
In performing such analysis, a trial court
          need  not  specifically address the statutory
          factors  .  .  .  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.[17]
Similarly, we have stated that courts need not memorialize  their
findings  for  each given factor.  Where there is no  substantive
dispute  about a certain factor, the court need not  specifically
address it.18
          The  superior court in this case did not make  findings
regarding each statutory factor, but the language of its analysis
makes  clear that it properly considered all factors.  The  court
found  that  two considerations tipped the balance  in  favor  of
Michael.  The first consideration was Lauries failure to share co-
parenting  duties  and her interference in Michaels  relationship
with  Bryanna, which demonstrated an unwillingness  to  allow  an
open  and  loving relationship between Bryanna and Michael.   The
second  consideration was Bryannas exposure to certain facets  of
Lauries  assisted living facility, which raised a  concern  about
Lauries ability to meet Bryannas physical, emotional, mental  and
social needs.
          The  court  also briefly addressed the other  statutory
factors.   It  found  that Michaels alcohol use  did  not  impact
Bryanna  and  was  not severe enough to be a negative  mark.   It
found  no  domestic  violence.  It found  Bryanna  too  young  to
consider her placement preference, though it did find significant
that testimony recounting Bryannas excitement at the prospect  of
living  with her father was not challenged.  The court found  the
          factors of stability and continuity to be inapplicable because
Michaels  move rendered actual stability impossible  either  way,
Bryanna would lose some contact with one parent.  The court  also
suggested  that the parenting history and ability of the  parents
were  roughly  equal:  Neither parent is a bad  parent.   Neither
parent is an Olympic gold medalist.
          In  short,  though  the court did not explicitly  place
these findings within the structure of the statutory list, we can
easily  glean the trial judges thoughts on each statutory factor.
As  a result, we conclude that the court properly considered  all
factors and acted within its discretion.
          Lauries  argument  to the contrary is  that  the  court
erred  in  failing  to  adequately  consider  Bryannas  need  for
stability,  instead relying solely on Lauries  interference  with
Michaels relationship with Bryanna.19  She argues that the  court
mentioned  stability only in passing and purely in a geographical
(not emotional) sense.  She also notes that a move to distant New
York will remove Bryanna from her home community, mothers family,
sibling, school, counselor, and all that is familiar to Bryanna.
          There  is,  of  course,  a certain  difficulty  in  the
determination  of  stability  where  an  out-of-state  move  will
necessarily  disrupt  the status quo.20  We  have  noted  that  a
continuity  test  centered  entirely  on  the  childs  geographic
stability  would  always favor placing the child  with  the  non-
moving  parent.21   As  a result, we have indicated  that  it  is
impermissible  to  treat  the  move  itself  (assuming  it  is  a
legitimate move) as a best-interests factor weighing against  the
moving  parent.22   Instead, in these  situations  a  court  must
examine  not  only  the desirability of maintaining  geographical
continuity,  but  also  the importance of  maximizing  relational
stability.23  In other words, the court may properly award custody
to a parent who offers superior emotional stability.24
          In  the  present  case, the trial court properly  found
that  the stability of Bryannas life will be disrupted regardless
which  decision it makes.  Laurie is right that removing  Bryanna
from  her  current  home  will alter her relationships  with  her
mother, friends, school, extended family and sense of place.   It
is  also  true  that rejecting Michaels motion  for  modification
would  change Bryannas relationship with her father and, perhaps,
cause  an equally or even more damaging disruption.  The superior
court   examined  Bryannas  need  for  stability  and  implicitly
concluded that awarding Michael custody would not be so much more
disruptive  to  Bryannas life that this factor  outweighed  other
relevant factors.  Laurie has not raised any claims that convince
us that this decision was an abuse of discretion.
          Laurie also contends that the superior court relied  on
only  one  factor.   We disagree.  The record reflects  that  the
court  considered  all  of the statutory best  interest  factors.
Many  of  the  factors were found inapplicable  (e.g.,  substance
abuse,  domestic violence, childs preference).   Others  did  not
weigh  strongly  in favor of either parent (e.g.,  childs  needs,
amount  of  love  and affection).  The court  found  two  factors
weighed  in  favor  of  custody  to  Michael:   (1)  the  parents
respective  abilities  to  meet Bryannas  needs,  and  (2)  their
          willingness to allow an open and loving relationship between
Bryanna and the other parent.
          Hamilton  v. Hamilton25 presented a similar  situation.
In Hamilton, an ex-husband sought to modify a custody arrangement
to  make himself the primary custodian after his wife moved  with
their  two  sons from Juneau to Tacoma, Washington.26  The  trial
court  granted  the  modification based primarily  on  the  wifes
interference  in  the fathers relationship with  his  sons    the
mother  had  not co-operated in sharing parental duties  and  had
acted  with  the purpose of thwarting the fathers access  to  the
children.27  The trial court concluded that the remaining factors
were  either  not applicable or favored neither  parent.28   Most
notably, the court did not explicitly mention the effect  of  its
decision  on  the boys interest in stability, but  it  found  the
mothers  inability to allow [the father] 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 the mother.29  We held that the trial court did not abuse
its  discretion  in  placing  more weight  on  interference  than
stability  and  that  it properly considered  all  best  interest
factors.30   The trial court similarly considered all factors  in
this case.  We conclude that the superior court did not abuse its
discretion in granting the modification to Michael.
          Moreover, the courts findings and conclusions  must  be
reviewed  in light of the particular circumstances of  this  case
and the custody arrangement it ultimately issued.  We have stated
that trial courts have broad discretion to fashion custody awards
designed  to meet the unique needs of the individuals involved.31
Here  the  change  in  custody was ordered to  be  for  one  year
duration and no more.  Judge Savell ordered both parents to  file
status reports on May 1, 2005, setting forth the events since the
change  and  whether  the  modification  arrangements  should  be
altered.   Given  that these status reports  will  be  filed  and
another  modification hearing may be held at the  superior  court
level,  and  given that there were no mistakes  of  law  or  fact
during  the  modification hearing reviewed today, we  decline  to
undo the current arrangement and interrupt a perhaps more gradual
          Because  the  superior  courts  factual  findings   are
supported by substantial evidence and because the court  did  not
abuse  its  discretion in making the custody decision, we  AFFIRM
the  superior courts modification of child custody  in  favor  of
Michael Chesser.
     1    Laurie Chesser has remarried and is now known as Laurie
Chesser-Witmer.   For simplicity, we refer to the  ex-spouses  by
their first names.

     2     There was also a provision that, if one parent decided
to  leave the Fairbanks area, the parents will participate in  at
least  three  sessions with a mediator before  resorting  to  the
courts.   This  provision  was ignored  in  this  case.   Michael
claimed that mediation was impossible, given the unwillingness of
Laurie  to  communicate and the short time frame.  In  any  case,
Laurie  has  not  at any time objected to the noncompliance  with
this provision.

     3     He  asked  for overnight custody every  other  Tuesday

     4     Telephonic visitation usually occurred between 5 and 7
p.m.   This time is not memorialized in any court order.  Michael
claimed that it may have been suggested by the court, and that at
least it was the accepted practice of the parents.

     5     In Judge Savells words, we dont care what people do as
long as theyre not doing it in front of and with the child.

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

     7    Id.

     8     Ms.  Evans conceded that her personal opinion was  not
professional because I do not work with children  .  .  .  as  my
primary job.

     9    Evans v. Evans, 869 P.2d 478, 480-81 (Alaska 1994).

     10    AS 25.20.110(a).

     11    Id.

     12    Barrett v. Alguire, 35 P.3d 1, 5-6 (Alaska 2001).

     13    Id. at 6.

     14     See  McQuade v. McQuade, 901 P.2d 421, 423-24  &  n.6
(Alaska  1995);  see  also Meier v. Cloud,  34  P.3d  1274,  1279
(Alaska 2001).

     15     An  out-of-state move is legitimate when  it  is  not
primarily  motivated by a desire to make visitation .  .  .  more
difficult.   Moeller-Prokosch  v.  Prokosch,  53  P.3d  152,  157
(Alaska 2002) (citation omitted).

     16    AS 25.20.060(a).

     17     Smith  v.  Weekley, 73 P.3d 1219, 1225 (Alaska  2003)
(citing  Borchgrevink  v.  Borchgrevink,  941  P.2d  132,  139-40
(Alaska 1997)) (emphasis added).

     18     Virgin  v. Virgin, 990 P.2d 1040, 1045 (Alaska  1999)
(citation omitted).

     19     She  cites to Platz v. Aramburo, 17 P.3d  65  (Alaska
2001),  for  the  proposition that custody cannot be  transferred
solely  on  the  ground  of  factor (6)  (interference).   Laurie
misreads the Platz case.  Unlike the superior court in this case,
the  court  in  Platz  did not conduct a best interests  hearing.
Instead,  the  court  transferred custody based  largely  on  one
parents  refusal  to  cooperate  with  a  visitation  order.   We
reversed  the  custody  order  and remanded  for  an  evidentiary
hearing regarding the AS 25.24.150(c) best interest factors.

     20     Meier  v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001)  (a
parents  decision  to relocate to another state  will  ordinarily
necessitate a change in the status quo . . . .).

     21    Id.

     22    Moeller-Prokosch v. Prokosch, 53 P.3d 152, 157 (Alaska

     23    Meier, 34 P.3d at 1279.

     24    Id.

     25    42 P.3d 1107 (Alaska 2002).

     26    Id. at 1111.

     27    Id. at 1114, 1116.

     28    Id. at 1116.

     29    Id.

     30    Id. at 1115-16.

     31    Deininger v. Deininger, 835 P.2d 449, 451 (Alaska 1992)
(upholding gradual two-year transition period to 50/50 custody).