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Elton H. v. Naomi R (08/26/2005) sp-5935
Elton H. v. Naomi R (08/26/2005) sp-5935
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
| ELTON H.,
| ) |
|
| ) Supreme Court No. S-
11531 |
|
Appellant, | ) |
|
| ) Superior Court
No. |
|
v. | ) 3AN-03-13484
CI |
|
| ) |
|
NAOMI R., | )
O P I N I O N |
|
| ) |
|
Appellee. | ) [No. 5935 - August
26, 2005] |
|
| ) |
|
|
|
|
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: James J. Davis, Jr. and
Marguerite Humm, Alaska Legal Services
Corporation, Anchorage, for Appellant. No
appearance for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
Elton H.1 is the father of two minor children, Julian
and Carmen. He appeals a custody order granting legal custody to
Naomi R., the mother of the children, and temporary shared
physical custody to Elton and Naomis mother, Arletta M. Because
the order did not grant de facto legal custody to Arletta, and
the superior court did not abuse its discretion by awarding legal
custody to Naomi, we affirm the order in regard to legal custody.
But because the superior court awarded shared physical custody to
Arletta over Eltons objections without making the necessary
findings pursuant to Evans v. McTaggart,2 we reverse the order in
regard to physical custody and remand for further proceedings.
II. FACTS AND PROCEEDINGS
A. Background
Elton and Naomi are the biological parents of Julian
H., born in 1991, and Carmen H., born in 1995. The couple were
together from 1989 until 1998 without marrying. Their
relationship was tumultuous. Elton suffered from untreated
schizophrenia and depression until 1995, along with a drug and
alcohol problem. He walked out on the family several times and
physically abused Naomi.
From 1998 until 2000, Elton and Naomi shared custody of
Julian and Carmen in Anchorage pursuant to an informal
arrangement. Following her separation from Elton, Naomi became
romantically involved with a man named Lance V. In October 2000,
Naomi briefly moved with Carmen and Lance to Puerto Rico before
settling in Orlando, where she remains. In 2001 Naomi had the
first of her two children by Lance. Lance has also physically
abused Naomi. The couple parted in 2002 but continue to co-
parent their two children.
Elton remained in Anchorage with Julian. Arletta M.,
Naomis mother, lives in Anchorage with her own young children.
Since 2000, Arletta has taken a very active role in helping Elton
raise Julian. During the summer of 2002, Naomi sent Carmen to
live in Anchorage with Arletta and Elton. Carmen lived primarily
with Arletta while Julian resided primarily with Elton. Naomi
maintained close contact with her children, though she was able
to make only a single visit, from Christmas 2002 to February
2003, between the summer of 2002 and the custody trial in the
summer of 2004.
Elton is currently taking anti-psychotic and anti-
depressant medication. His health care providers have described
his mental illness as stable and mild. One is of the opinion
that he is functionally stable and is able to do the usual things
that the rest of us in society do. He has no current substance
abuse problems. He has been unemployed since July 2003. He
estimates that his income is close to $700 per month. He derives
this income from Supplemental Security Income, Social Security
and Adult Public Assistance. He does not have a checking account
or any savings. He currently resides in a subsidized two-bedroom
apartment. He believes that he would be eligible for a
subsidized three-bedroom apartment if he is awarded full custody
of Julian and Carmen.
At the time of trial, Naomi was unemployed and was in
the process of being evicted from her apartment in Florida.
The impetus for this action originated from a dispute
between Elton and Arletta over custody of the children. Julian
enrolled in summer school in 2003. Because Arletta lived nearby
the school, Elton asked if Julian could live with her during the
term. She agreed. On the last day of summer school, Elton
informed Arletta that he was coming to pick up his children.
Arletta refused to allow him to take the children. Elton
eventually filed suit to gain custody and for damages for
interference with parental rights.
B. Proceedings
Elton filed suit on November 21, 2003 against Naomi and
Arletta. He requested primary custody of Julian and Carmen and
asked for compensatory and punitive damages from Arletta for
intentionally interfering with his parental rights. Prior to
trial Arletta, who in her joint answer with Naomi had sought
custody of the children, was dismissed as a defendant.
Trial was held June 7-8, 2004 before Superior Court
Judge John Suddock. Elton was represented by Alaska Legal
Services and Naomi represented herself pro se. Judge Suddock
issued oral findings on June 14, 2004 and written findings and
conclusions of law two days later.
C. The Superior Courts Findings of Fact
Initial custody determinations in non-divorce disputes
are governed by AS 25.20.060.3 When faced with a custody dispute
pursuant to AS 25.20.060, a superior court shall award custody
based on the best interests of the children according to the nine
factors described in AS 25.24.150(c). At the time the superior
court considered this case, these factors were:4
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each parent
to meet these needs;
(3) the childs preference if the child is of
sufficient age and capacity to form a
preference;
(4) the love and affection existing between
the child and each parent;
(5) the length of time the child has lived in
a stable, satisfactory environment and the
desirability of maintaining continuity;
(6) the desire and ability of each parent to
allow an open and loving frequent
relationship between the child and the other
parent;
(7) any evidence of domestic violence, child
abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by either
parent or other members of the household
directly affects the emotional or physical
well-being of the child;
(9) other factors that the court considers
pertinent.[5]
Pursuant to AS 25.20.060, the superior court applied these
factors to determine the best interests of Julian and Carmen.
The court entered findings on each of these factors, placing the
most emphasis on the ability of each parent to care for the
children and the childrens need for stability.
1. Physical, emotional, mental, religious, and social
needs
The superior court concluded that the children
especially need stability, a reprieve from violence, and a
cessation of inter-parent strife: Both children need stability,
both children need parents they can rely on to meet their needs
and support for [Julians] academic situation, Special Ed. They
need to be away from violence, away from conflict between the
parents or between either of the parents and the grandmother.
2. The capability and desire of the parents to care
for their children
While the superior court believed that both parents
love their children and desire to care for them, it concluded
that neither is presently able to care for them. Naomi is
currently unemployed, without housing, and lacking in emotional
stability. Elton is also unemployed but his other shortcomings
are less tractable. According to the superior court, Elton has a
pattern of abandoning his responsibilities and his family,
exhibiting marginal judgment, and suffering from serious mental
illness that requires treatment occupying the majority of his
mental and emotional resources. The superior court believed that
Naomi will be capable of caring for Julian and Carmen once she
gets back on her feet. For Elton, on the other hand, there are
structural limits on what he can do taking care of these two
children as a primary care giver.
3. Preferences of the children
The superior court concluded that Julian and Carmen
were not sufficiently mature to form a preference for either
parent.6 At the urging of the custody investigator, however, the
superior court noted that the children are decidedly in favor of
being parented by the mother in Florida. Carmen, in particular,
is afraid of being parented by Elton.
4. Love and affection existing between each child and
the parent
In its written findings, the superior court found love
between both parents and the children. In its oral findings, the
superior court noted that Carmen stated that she does not really
know her father.
5. The length of time child has lived in particular
setting and the desirability of continuity
The superior court found that Arletta has been the
strongest source of stability and continuity in the childrens
lives: [I]f [Arletta] werent here, this situation could not
possibly have worked even as well as it has for the past four
years. The children also have extended family in the Anchorage
area and have formed close attachments to Arlettas two young
children.
6. Desire and ability of parent to allow an open and
loving relationship between children and other
parent
The superior court found that each parent is equal in
this regard.
7. Evidence of domestic violence, child abuse or
neglect
While the court found that there is no evidence of
present or recent domestic violence by [Elton] in its findings of
fact, it noted in its oral findings that Elton beat Naomi in the
past and doesnt understand that [in] this society, domestic
violence is unacceptable.
The superior court found no domestic violence issues
with respect to [Naomi]. It noted, however, that Lance, Naomis
former boyfriend and the father of her other children, was
arrested last year for domestic violence against Naomi.
The court determined that there is no evidence of child
abuse by either parent.
8. Substance abuse issues
The court found no current substance abuse by either
parent. In its oral findings, the court noted that Elton
apparently had a cocaine and alcohol problem sometime in the
past. It seems to be under acceptable control now.
D. The Superior Courts Custody Order
Faced with these difficult facts, the superior court
determined that [this] situation is best met with a rough
maintenance of the status quo. At trial, the superior court
repeatedly asked Elton if a shared custody arrangement with
Arletta could be worked out. In the end, the superior court
granted sole legal custody to Naomi but awarded shared physical
custody to Arletta and Elton because of Naomis temporary
inability to care for the children. Ultimately, the superior
court expected that Naomi would get back on her feet and request
physical custody: If and when [Naomi] obtains a stable job,
housing, and the emotional stability needed to support a family
of four, she may [move] this Court to prove such factors. If
[Naomi] does so, this Court will allow the children to move to
Florida to live with her so that she has physical custody of her
children.
The order allocated physical custody between Arletta
and Elton based on Arlettas work schedule. The children stay
with Elton from Monday morning until Thursday morning and during
the day on weekends. Though the children spend roughly half of
every week with Elton, the order granted Arletta the full
financial benefits of physical custody such as child support,
tax benefits, and control of permanent fund dividends.
Elton appeals both the award of legal custody to Naomi
and the award dividing physical custody between himself and
Arletta. Naomi and Arletta have not participated in this appeal.
III. STANDARD OF REVIEW
Whether the court applied the correct standard in a
custody determination is a question of law we review de novo,
determining the rule of law in light of precedent, reason, and
policy.7
A trial court is given broad discretion in custody
awards so long as the best interests of the child are served.8 A
superior courts decision in child custody matters will not be
reversed unless there has been an abuse of discretion or the
controlling factual findings are clearly erroneous.9 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. 10 A factual finding is clearly erroneous when a review
of the record leaves this court with the definite impression that
a mistake has been made.11
IV. DISCUSSION
A. The Custody Award Violates Evans v. McTaggart.
We have long recognized that a parent is entitled to a
custodial preference over non-parents in custody determinations.
This preference can only be overridden if the parent is unfit or
the welfare of the child requires that the child be placed in the
custody of a non-parent.12 In Evans v. McTaggart,13 we held that
clear and convincing evidence is necessary to override the
parental preference.14 We also specified that a trial court must
articulate the standard of proof used to override the parental
preference.15 Because Eltons implied contention that the order
grants de facto legal custody to Arletta is without merit, we
affirm the order granting legal custody to Naomi. But because
the superior court awarded shared physical custody to Arletta, a
non-parent, without entering any findings pursuant to Evans, we
reverse the order in regard to physical custody and remand for
further proceedings.
1. The superior court granted sole legal custody to
Naomi.
Elton argues that the award of sole legal custody to
Naomi was a legal fiction and that the superior court actually
awarded [Arletta] . . . custody of both [Julian] and [Carmen].
Elton claims that the court invested Arletta with all of the
rights and incidents of child custody, even though Naomi was
named the nominal legal custodian. We read this as an argument
that the superior court granted legal custody, as well as
physical custody, to Arletta. Consequently, Elton claims that
the superior court violated Evans because it failed to make the
factual findings necessary for awarding custody to a non-parent
over the objections of a parent. Though we have some misgivings
regarding Naomis practical ability to exercise legal custody over
her children from Orlando,16 we accept the superior courts
statement that it awarded sole legal custody to Naomi.
The essential feature of legal custody is the
discretion to make major decisions regarding a childs upbringing.17
These decisions include choices regarding education, health care,
morals, and religion.18 Elton argues that the court awarded full
custody to Arletta because (1) the custody order prohibited Naomi
from assuming physical custody for at least one school year, (2)
Naomi may elect to leave the children in the current arrangement
until their majority, and (3) the court awarded Arletta the
financial benefits that accompany primary physical custody. We
are not convinced that these features of the custody award
demonstrate that Arletta possesses full custody, that is, legal
as well as physical custody, because they did not invest Arletta
with discretion to make major decisions.
Requiring the children to remain in Anchorage with
Arletta and Elton for one school year does not transfer decision-
making authority from Naomi to Arletta. This aspect of the
custody order restricts Naomis discretion but it does not grant
Arletta any authority. The possibility that the current
arrangement could last indefinitely also does not affect Naomis
authority. Even if Arletta physically cares for Julian and
Carmen until their majority, Naomi still retains the right to
make the major decisions affecting their lives. The superior
courts boarding school analogy aptly captures the dynamic of
these circumstances. Like a parent who has placed her child in
boarding school, it becomes more difficult for Naomi to ensure
that her preferences regarding her childrens education,
discipline, morality, and religious instruction are carried out.
This difficulty, however, does not deprive her of the right to
make such decisions.
We also note that Eltons first two arguments are
unpersuasive in light of the fact that he shares physical
custody. Under the custody award, Elton cares for the children
from Monday morning until Thursday morning and during the day on
weekends. The requirement that the children remain in Anchorage
for one school year and the possibility that the current
arrangement could last indefinitely actually increase Eltons
ability to affect the childrens health, education and welfare.
Eltons final contention, that Arlettas receipt of the
financial benefits of custody shows that Arletta possesses full
custody, is likewise unpersuasive. Child support is meant to
benefit the child by financially assisting the party providing
child care.19 Likewise, tax breaks are meant to offset actual
child care costs. These financial benefits are appropriately
granted to the person who the custody order contemplates will
provide child care. Consequently, assigning these benefits to
Arletta does not imply that she holds legal as well as physical
custody; it only reflects that she bears the financial burdens of
physical custody.20 On the other hand, control of the childrens
permanent fund dividends may fall within the authority that
corresponds to legal custody. Even so, in this case the ability
to control permanent fund dividends is a relatively small
intrusion on Naomis ultimate discretion.
2. Awarding shared physical custody to a non-parent
over the objections of a parent requires Evans
findings.
While we are not persuaded that the superior court
granted de facto legal custody to Arletta, the court did grant
shared physical custody to Arletta. As discussed above, a parent
is entitled to a preference over a non-parent in custody
determinations. Because the parental preference applies to
awards of physical custody as well as legal custody,21 and the
superior court did not make the factual findings that Evans
requires before overriding the parental preference, we must
reverse the order regarding physical custody and remand for
further proceedings.
a. The parental preference applies to awards of
physical custody.
We have previously applied the parental preference to
determinations of physical custody even where there is little
dispute regarding legal custody. In J.W. v. R.J.,22 a superior
court granted a father and a stepfather shared legal custody but
awarded primary physical custody to the stepfather.23 We reversed
the custody award because the superior court had not found that
the father was unfit to parent or that the childs welfare
required primary physical custody to be awarded to the
stepfather, and remanded for further proceedings to address these
issues.24
In Bass v. Bass,25 a superior court awarded shared
legal custody to a childs parents but granted temporary physical
custody to the childs paternal grandparents in light of the
mothers current inability to care for their child.26 We upheld
this decision because ample evidence in the record supported the
superior courts conclusion that the mother was unfit, and,
therefore, it was appropriate to override the parental
preference.27
b. The superior court did not make findings
sufficient to override Eltons parental
preference pursuant to Evans.
In Evans v. McTaggart, we clarified what standard of
proof is needed to overcome the parental preference: a non-parent
must show by clear and convincing evidence that the parent is
unfit or that the welfare of the child requires the child to be
in the custody of the non-parent.28 The superior court did not
make any Evans findings in this case. Neither the courts written
or oral findings concluded by clear and convincing evidence that
Elton is unfit or that the welfare of the children requires them
to be in Arlettas custody. Without such findings, a court cannot
award physical custody to a non-parent over the objections of a
parent seeking custody.
3. On remand, the superior court should determine if
clear and convincing evidence exists to support
overriding the parental preference only if Naomi
is currently unable to care for her children.
The shared physical custody arrangement between Elton
and Arletta was intended to be temporary. On remand, the
superior court should first address whether the conditions of
Naomis life in Florida have improved so that she may assume
physical custody. The superior court need not address whether
clear and convincing evidence exists to override Eltons parental
preference unless Naomi remains unable to care for Julian and
Carmen.29
If Naomi is not currently able to care for Julian and
Carmen, the superior court should determine whether clear and
convincing evidence exists indicating that Elton is unfit to
assume sole physical custody. A finding of clear and convincing
evidence that Elton is not fit to be the sole care-giver for his
children, if supported by the record, would permit an award
splitting physical custody between Elton and Naomi.30
If clear and convincing evidence does not exist that
Elton is unfit to be the childrens sole care-giver, the superior
court should examine whether clear and convincing evidence
demonstrates that the welfare of the children requires them to
remain, at least part of the time, in Arlettas custody. In
making this determination, the court should remain cognizant that
this finding requires more than the conclusion that the best
interests of the children would be served by remaining with
Arletta.31 The court must determine that it would be detrimental
to the child[ren] to permit Elton to have custody.32
B. The Superior Court Did Not Abuse Its Discretion in
Awarding Legal Custody to Naomi.
Elton maintains that the superior court abused its
discretion by awarding legal custody to Naomi. We disagree. The
problem facing the superior court fundamentally required a
comparison between Naomi and Elton. Given the evidence presented
at trial and the courts findings, we cannot conclude that the
superior court abused its discretion by selecting to grant legal
custody to Naomi.33
Elton advances two reasons why the superior court
abused its discretion by awarding legal custody to Naomi rather
than Elton. First, Elton contends that it was an abuse of
discretion to award legal custody to Naomi because the superior
court had found her unable to meet the childrens needs because
she is jobless, effectively homeless and her job skill-set is
marginal. Second, Elton argues that no evidence was proffered at
trial showing that he was not able to care for his children.34
Neither argument is persuasive.
1. Even though Naomi was currently unable to care for
her children, it was not an abuse of discretion to
grant her legal custody.
Granting legal custody to a parent who is not currently
able to care for the child is not a per se abuse of discretion.
On several occasions, we have upheld awards of legal custody or
joint legal custody to parents considered presently unable to
care for their children.35 This position is conceptually coherent
because of the different requirements of legal and physical
custody. A parent who temporarily lacks the financial or
personal resources to physically care for her child may still be
the best person to make major decisions regarding how the child
is raised in the long term.36 Trial judges are well situated to
determine if awarding legal custody to a parent facing temporary
economic or personal hardships serves the best interests of a
child.
Awarding legal custody to Naomi in this particular case
was not an abuse of discretion. Elton appears to argue that the
superior court did not properly ascertain his fitness to parent,
maintaining that once it concluded that Naomi was presently
unable to meet the childrens needs, it should have awarded him
custody. However, the superior court considered at length the
comparative parenting abilities of Naomi and Elton. The superior
court noted that in terms of the capability and desire of each of
these parents to meet the childrens needs, theyre both in kind of
tough shape at the moment. Nonetheless, the superior court
concluded that Naomis present inability to parent resulted from
temporary problems with work and housing, while Eltons inability
was permanent.
2. There was substantial evidence in the record
supporting the superior courts conclusion that
Elton should not have legal custody.
Contrary to Eltons assertions on appeal, the superior
court reviewed ample evidence of Eltons shortcomings as a parent.
The superior court found particularly relevant Eltons history of
abandoning his responsibilities, his marginal judgment, his
unemployment, and the fact that dealing with his own personal
problems would make it difficult for him to be a primary
caregiver to the children. Eltons brother Ralph testified that
Elton has always been a man that seems to run away from
everything. I mean, constant. That has been his role; run away,
run away, run away. Denise Hudson, the custody investigator in
this case, testified that Julian and Carmen told her that there
was no food in Eltons house, that they were left unattended
during visitation, and that Elton often spent all day sleeping.
By Eltons own account, he has been unemployed since July 2003 and
lives on $700 a month in public assistance.
Based on these facts, we cannot conclude that the
superior court abused its discretion by awarding sole legal
custody to Naomi.
C. Awarding Shared Physical Custody to a Non-Party Is Not
an Abuse of Discretion.
Elton argues that it was improper to award shared
physical custody to Arletta because she was not a party to the
litigation. Though we have already reversed the order regarding
physical custody, we address the propriety of granting custody to
a non-party because (a) Elton has briefed the issue and (b) if
the superior court finds on remand that Evans has been satisfied,
the issue will be fully ripe for decision.
Arletta, who had sought custody in her answer to Eltons
complaint, was dismissed as a defendant by stipulation at the
beginning of trial. Nonetheless, the superior court awarded her
shared physical custody of Julian and Carmen after she consented
to the arrangement. In the past, this court has upheld custody
orders in which a parent was awarded legal custody and physical
custody was granted to the childs grandparents or other family
members who had intervened in the custody action.37 Whether a
superior court may award physical custody of a child to a non-
party grandparent is an issue of first impression for this court.
We first note that relevant Alaska Statutes do not
address the propriety of non-party custody awards.38 We have long
recognized that trial courts have broad discretion to fashion
appropriate child custody orders.39 This discretion is dictated
by statute40 and the complex, fact-intensive nature of custody
disputes. As a general matter, we do not wish to preclude trial
courts from fashioning custody awards that will better serve the
interests of children by establishing overly broad prohibitions.41
We hold that it is within the discretion of a trial court to
grant custody to a person who was not a party at the initiation
of the litigation as long as four conditions are met.
First, the non-party must consent to entry of the
custody order and to becoming a party to the litigation. Elton
argues that granting custody to non-parties is inappropriate
because a court may not adjudicate the rights of a person or
entity that is not a party to the action before it.42 As Elton
points out, courts in other jurisdictions have reversed awards to
non-parties because the courts in question could not bind the non-
parties by the custody order.43 We agree that a court lacks the
power to require a non-party to assume custody of a child.
However, we are not persuaded that this general rule should
prevent courts from awarding custody to a non-party when the non-
party consents to the arrangement. In this case, Arletta
consented in court to the shared custody arrangement. If, upon
remand, the court determines that custody should be placed with
Arletta, she must consent to becoming a party to the case.
Second, the award must comply with Evans.44 It is not
within the unfettered discretion of a trial court to override the
parental preference. A court may grant custody to a non-parent
only if the parents agree to the arrangement, or if clear and
convincing evidence shows that one or both of the parents are
unfit, or that the welfare of the child requires custody to be
with the particular non-party non-parent.
Third, a court may award custody only to a non-party
who would have been entitled by right to intervene as a party in
the custody proceedings pursuant to Alaska Civil Rule 24(a). We
have previously allowed psychological parents45 and grandparents46
to intervene as parties in custody disputes. Limiting possible
non-parties to those individuals who have standing to intervene
as a matter of right accomplishes two important goals. First, it
eliminates any temptation to award a child of disadvantaged
background to an individual or institution unknown to the child
based on the non-partys resources and capacity to care for the
child.47 Second, because parents will almost certainly know all
possible intervenors, parents will be in a better position to
oppose or agree to a non-party award.
Lastly, non-party awards must comply with due process.
Awarding custody to a non-party may implicate due process
concerns when a party lacks notice that such an award is being
considered. In Anonymous v. Anonymous,48 the Alabama Supreme
Court reversed an award granting custody to a childs paternal
grandparents, who were not parties to the case, because the
mother had not received adequate notice or an opportunity to be
heard on the issue of whether the grandparents should obtain
custody.49 The court reasoned that the process followed by the
trial court deprived the mother of due process.50 Alabamas
experience is instructive. Consequently, we hold that a party to
a custody dispute must receive fair notice of the possibility
that custody could be awarded to a particular non-party. Fair
notice must include a reasonable opportunity to marshal evidence
and present arguments against a particular non-party obtaining
custody.
If the superior court considers awarding some amount of
physical custody to Arletta, Elton deserves an opportunity to
develop and present evidence against such an award. Prior to
trial, Elton had some notice that a custody award to Arletta was
a possibility. Arletta and Naomi submitted a joint answer to his
complaint, asking that Arletta be awarded the care, custody and
control of the minor children. Arletta appears to have dropped
this claim, however, during a March 3, 2004 hearing before the
superior court. Additionally, since Arletta was dismissed as a
party at the beginning of the trial, Elton had no reason to
present evidence against Arletta. Elton, therefore, did not have
sufficient notice at the time of trial that Arletta might obtain
custody and was not able to develop and present evidence against
such an award. Consequently, if the superior court contemplates
awarding physical custody to Arletta on remand, it must hold an
evidentiary hearing to allow Elton to voice his objections.
In sum, a trial court has discretion to grant custody
to a non-party if (1) the non-party consents, (2) the award
complies with the requirements in Evans for overriding the
parental preference, (3) the non-party could have intervened in
the custody dispute, and (4) the parties to the custody dispute
have sufficient notice of the possibility that a non-party will
receive custody to satisfy due process.
V. CONCLUSION
Because the superior court did not award de facto legal
custody to Arletta, a non-parent, in violation of Evans, and
because the court did not abuse its discretion in awarding legal
custody to Naomi, we AFFIRM the superior courts order awarding
legal custody. But because the court awarded physical custody to
a non-parent over the objections of a parent, and failed to make
findings by clear and convincing evidence either that the parent
was unfit or that the welfare of the children required the
children to remain with the non-parent, the order awarding shared
physical custody violated Evans. Consequently, we REVERSE the
order concerning physical custody and REMAND the matter to the
superior court for further proceedings consistent with this
opinion.
_______________________________
1 Pseudonyms have been used throughout this opinion to
protect the identity of the parties and members of their
families.
2 88 P.3d 1078 (Alaska 2004).
3 Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003).
4 Effective on July 1, 2004, the legislature revised AS
25.24.150(c)(6). See ch. 111, 5, SLA 2004. The language
currently in effect reads:
(6) the willingness and ability of each
parent to facilitate and encourage a close
and continuing relationship between the other
parent and the child, except that the court
may not consider this willingness and
ability, if one parent shows that the other
parent has sexually assaulted or engaged in
domestic violence against the parent or a
child, and that a continuing relationship
with the other parent will endanger the
health or safety of either the parent or the
child;
The legislature also added subsections (g) through (k), which
make it much more difficult for a perpetrator of domestic
violence to obtain any custody or unsupervised visitation of his
or her children. See ch. 111, 5, SLA 2004. Because the
superior court issued its findings of fact and conclusions of law
on June 16, 2004, the court correctly relied on the earlier
version of the law.
5 Former AS 25.24.150(c) (2003).
6 Julian was twelve and Carmen eight at the time of the
trial. The superior court noted that Julian is not mature for
his age. See Fardig v. Fardig, 56 P.3d 9, 13 n.13 (Alaska 2002)
(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.).
7 Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska
2001).
8 Carter v. Novotny, 779 P.2d 1195, 1198 (Alaska 1989).
9 Fardig, 56 P.3d at 11; see also Vachon v. Pugliese, 931
P.2d 371, 375 (Alaska 1996) (applying abuse of discretion and
clear error standards of review to custody dispute between
parents who never married or formalized custody arrangement).
10 Fardig, 56 P.3d at 11 (quoting Siekawitch v.
Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
11 Id.
12 See J.W. v. R.J., 951 P.2d 1206, 1210-11 (Alaska 1998)
(parental preference applies to custody dispute between natural
father and stepfather); Carter, 779 P.2d at 1197 (recognizing
application of parental preference to custody dispute between
father and maternal aunt); Hickey v. Bell, 391 P.2d 447, 448
(Alaska 1964) (holding that parent is entitled to custodial
preference over grandparent seeking custody).
13 88 P.3d 1078 (Alaska 2004). In regard to the standard
of proof necessary to override the parental preference, Evans
overruled a line of cases including Britt v. Britt, 567 P.2d 308
(Alaska 1977), Buness v. Gillen, 781 P.2d 985 (Alaska 1989), J.W.
v. R.J., 951 P.2d 1206 (Alaska 1998), and Todd v. Todd, 989 P.2d
141 (Alaska 1999) which held that, in order to overcome the
parental preference, a non-parent must show by a preponderance of
the evidence that the substantive standard had been met. Id. at
1083-84. Evans also held that clear evidence and clearly shown
standards of proof employed in another line of parental
preference cases including Hickey, 391 P.2d 447, Turner v.
Pannick, 540 P.2d 1051 (Alaska 1975), Carter, 779 P.2d 1195, and
C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998) were consistent with
the clear and convincing evidence standard, which is the
customary articulation for the heightened standard of proof
between preponderance of the evidence and proof beyond a
reasonable doubt. Id. at 1083-85. Evans did not overrule either
line of cases in regard to the substantive law governing a
custody dispute between a parent and a non-parent.
14 Id. at 1085.
15 Id. at 1087.
16 See infra note 33 and accompanying text.
17 See Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990) (noting
that shared legal custody means that parents share responsibility
for making major decisions affecting childs welfare); see also 3
Arnold H. Rutkin, Family Law and Practice 32.08[2] (2004).
18 Rutkin, supra note 16, 32.08[2].
19 See Bennett v. Bennett, 6 P.3d 724, 727-28 (Alaska
2000).
20 It is troubling that Arletta receives all of the
financial benefits of physical custody even though the superior
court awarded shared custody with Elton. Since Elton cares for
the children for roughly half of every week, it is anomalous that
he does not receive an equitable portion of the financial
benefits of child care. On remand, the superior court should
address this discrepancy.
21 See J.W. v. R.J., 951 P.2d 1206 (Alaska 1998); Bass v.
Bass, 437 P.2d 324 (Alaska 1968).
22 951 P.2d at 1206.
23 Id. at 1208.
24 Id. at 1210-11.
25 437 P.2d 324.
26 Id. at 324-26.
27 Id. at 325-27.
28 Evans, 88 P.3d at 1085.
29 Alternatively, if upon remand Elton shows a significant
or substantial change in circumstances, the court may reconsider
the award of legal custody. Chesser-Witmer v. Chesser, ___ P.3d
___, 2005WL 1654103 at *6 (Alaska, July 15, 2005).
30 In its findings of fact, the superior court stated that
Elton is able to parent, desperately wants to parent his
children, and should have the chance to do so to the extent that
he is able. (Emphasis added.) This language implies that the
superior court found that Elton was incapable of assuming full-
time custody. But such a finding, if it is to be made, must be
made explicitly and under the correct standard of proof.
31 A parent cannot be deprived of custody based solely on
the best interests of the child. Turner v. Pannick, 540 P.2d
1051, 1054-55 & n.4 (Alaska 1975).
32 Id. at 1054. In deciding Turner, we were guided by the
California Supreme Courts decision in In re B.G., 523 P.2d 244
(Cal. 1974). B.G. held that if a parent was fit, custody could
only be vested in a non-parent if such an award was necessary to
avert harm to the children. Id. at 258. Our cases considering
harm to the children include: Kinnard v. Kinnard, 43 P.3d 150,
154-55 (Alaska 2002) (awarding custody to non-parent justified
because removing child from psychological parent would be
emotionally devastating); Todd v. Todd, 989 P.2d 141 (Alaska
1999) (placement of child with mother instead of grandparents
would have been clearly detrimental to the welfare of the child
largely because child had lived seventy percent of life with
grandparents and was primarily bonded to them); Buness v. Gillen,
781 P.2d 985, 989 (Alaska 1989) (issue of material fact existed
regarding whether emotional bond between child and non-parent
required custody to remain with non-parent); B.J. v. J.D., 950
P.2d 113, 117-18 (Alaska 1997) (childs welfare required her to
remain with non-parent because mother could not provide stable
home or meet childs needs).
33 We note, however, that awarding legal custody to a
parent dwelling over 4,000 miles and four time zones from her
children approaches the limits of discretion and can only be
justified under special circumstances. Such circumstances exist
here: The childrens separation from Naomi is expected to be
temporary, and Eltons judgment is marginal at best.
34 Elton also claims that the superior court ignored a
number of factors relevant under AS 25.24.150(c) including
Naomis continued involvement with Lance, and her alleged
abandonment of her children. The record is clear, however, that
the superior court addressed these issues. The court was
cognizant of Lance and his history of abuse but found that there
were no current domestic violence issues with Naomi. The
superior court also found that Naomi had not abandoned her
children. Elton does not contend that these findings were
clearly erroneous.
35 In Bass v. Bass, 437 P.2d 324, 326-27 (Alaska 1968), we
approved a custody order that awarded shared legal custody to a
childs natural parents but granted physical custody to the
grandparents because of the parents present inability to care for
the child. In Carter v. Novotny, 779 P.2d 1195, 1197-98 (Alaska
1989), we upheld a custody order granting shared legal custody to
the father and the childs maternal aunt and physical custody to
the aunt. The aunt appealed the order claiming that it was
improper to award shared legal custody to a father whom the
superior court had explicitly found to be unfit. Id. We
rejected the aunts claim. Id. at 1198-99. See also C.R.B. v.
C.C., 959 P.2d 375, 381 n.12 (Alaska 1998) (expressing approval
for practice of vesting custody temporarily in a nonparent until
a parent can get his or her life sufficiently together to resume
custody).
36 See, e.g., Bass, 437 P.2d at 327 & n.13-14.
37 See, e.g., Bass, 437 P.2d at 326-27.
38 For example, AS 25.20.060 mandates that trial courts
shall award custody on the basis of the best interests of the
child but does not specify that only a party to the action may
receive custody.
39 Carter, 779 P.2d at 1198-99.
40 See AS 25.20.060 (court shall award custody on the
basis of the best interests of the child . . . consider[ing] all
relevant factors . . .); AS 25.24.150(c) (listing nine factors to
be considered in making best interests finding).
41 See Nail v. Clavier, 745 So. 2d 1221, 1223-24 (La. App.
1999) (stating that allowing court to award custody to non-party
upon appropriate proof that parent was unfit was sound rule which
allows the trial court the necessary flexibility to do what is
necessary in the best interest of the child.) (internal quotation
omitted).
42 Alaska Marine Pilots v. Hendsch, 950 P.2d 98, 112
(Alaska 1997).
43 E.g., T.S. v. M.C.S., 747 A.2d 159, 163-64 (D.C. 2000);
Bonne v. Bonne, 174 S.E.2d 833, 835 (N.C. App. 1970).
44 See supra Part IV.A.
45 We have held that those relationships that affect the
child which are based upon psychological rather than biological
parentage may be important enough to protect through custody and
visitation, to ensure that the childs best interests are being
served. Buness v. Gillen, 781 P.2d 985, 987-88 (Alaska 1989).
For when a non-parent can be considered a psychological parent,
see Kinnard v. Kinnard, 43 P.3d 150, 153-54 (Alaska 2002).
46 See Todd v. Todd, 989 P.2d 141, 142 (Alaska 1999).
47 This temptation should be extinguished by the parental
preference. However, this requirement emphasizes that a best
interests analysis cannot be substituted for the test under
Evans.
48 353 So. 2d 515 (Ala. 1977).
49 Id. at 519.
50 Id.
