Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
®, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Abby D. v. Sue Y. (9/2/2016) sp-7125

Abby D. v. Sue Y. (9/2/2016) sp-7125

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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, email  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

ABBY  D.,                                                        )  

                                                                 )          Supreme  Court  No.  S-16049  

                                 Appellant,                      )  


                                                                 )          Superior Court No.  1KE-14-00010 CI  

                      v.                                         )  


                                                                 )          O P I N I O N  


SUE Y. and                                                       )  


TODD Y.,                                                                                                              

                                                                 )          No. 7125 - September 2, 2016  


                                 Appellees.                      )  




                      Appeal from the Superior Court of the State of Alaska, First  


                      Judicial District, Ketchikan, William B. Carey, Judge.  


                      Appearances:  Michael P. Heiser, Ketchikan, for Appellant.  


                      Leif Thompson, Leif Thompson Law Office, Ketchikan, for  



                      Before:  Stowers,  Chief  Justice,  Winfree,                              Maassen,  and  


                      Bolger, Justices. [Fabe, Justice, not participating.]  


                      MAASSEN, Justice.  



                      The superior court granted sole legal and primary physical custody of a  


child  to  her  grandparents,  following  a  trial  at  which  the  court  found  by  clear  and  


convincing evidence that leaving the child in her mother's custody would be clearly  


detrimental to the child's welfare.   Nine months later the mother moved to modify  


custody, attesting by affidavit that she had improved her life in a number of ways and  

----------------------- Page 2-----------------------

had accomplished goals the court had set for her.                                                                                           She also argued that the court's grant                                                     

of custody following trial had been only temporary, and she was thus entitled to a                                                                                                                                                                

biological-parent preference and the court could modify custody without proof of a                                                                                                                                                                

substantial change in circumstances.                                                                      The court denied her motion without a hearing,                                                                    

holding both that its custody decree was intended to be final and that the mother failed                                                                                                                                              

to show the substantial change in circumstances necessary to entitle her to an evidentiary                                                                                                                            


                                      We agree with the superior court's holdings, and we therefore affirm its                                                                                                                                 

denial of the mother's modification motion without a hearing.                                                                                          

II.                FACTS AND PROCEEDINGS                      

                   A.                 Facts  

                                      Abby D.'s daughter Pam was born in July 2011.                                                                                             1  The child's father was  

never involved in her life and is not a party to these proceedings.  


                                      Abby has had mental health issues since she was a child.  In January 2014  


she overdosed on one of her medications and was unconscious for two or three days. At  


the custody trial she admitted she had taken more than the prescribed amount of the drug  


"on an impulse decision" but denied it was a suicide attempt; she later described the  


incident as "a medical reaction to the pills [she] was taking."  


                                      As a consequence of this incident, however, Abby's mother Sue Y. and  


Sue's husband Todd Y. petitioned for guardianship and eventual  custody of Pam.  The  


evidence adduced during the course of the custody proceedings demonstrated that other  


aspects of Abby's life were also difficult.  She had changed homes frequently over the  


ten years preceding the custody trial; she had also endured periods of homelessness and  


spent time in a women's shelter.  The homes she did have were described by others as  




                                      We use pseudonyms to protect the family's privacy.  

                                                                                                                       -2-                                                                                                                         7125  

----------------------- Page 3-----------------------


uninhabitable and unsanitary. She was the victimof domestic violence, and a friend filed  


a domestic violence petition against her.  


                    Abby  also  had  a  problem  with  marijuana  dependence.                                    She  smoked  


marijuana "every 2  to three hours" but refused to describe herself as a heavy user  


because she intended to quit, though she admitted "struggl[ing] a little bit on that."  The  


Office of Children's Services (OCS) opened an investigation in May 2012 after Pam  


tested positive for marijuana, but she tested negative several months later, and two OCS  


caseworkers  testified  at  trial  they  had  no  concerns  about  Abby's  parenting.  Abby  


testified that Pam "is not in the presence of marijuana smoke or paraphernalia," but she  


acknowledged that her usual practice was to smoke outside or in the bathroom.   When  


the court questioned her about her use of marijuana while taking care of Pam, she clearly  


limited her concern  to  Pam's exposure to smoke; she rejected the court's apparent  


concern  about  whether  she  could  be  a  proper  caretaker  while  under  the  influence,  


arguing that her marijuana use would only be a problem if it meant she was "not able to  


care for [her] child," that it would be more dangerous for her to smoke somewhere else  


while "leaving [Pam] four flights above ground," and that smoking marijuana is "not  




                     The evidence showed that Pam, like her mother, had a difficult life.  She  


suffered from microcephaly, failure to thrive, joint laxity, slow hair growth,  and a heart  


murmur.  Pam's pediatrician testified that these problems can have a variety of causes.  


She testified that microcephaly and failure to thrive are most commonly genetic; two "of  


the  thousands  of  reasons  that  [they]  can  happen"  are  abuse  or  neglect,  but  some  


"[c]hildren are just small. . . .  As [with] any statistical graph, there are people who are  


at the low end and [people who are] at the high end."  


                     Still, the pediatrician testified that because of the potential for abuse or  


neglect she "keep[s] a close eye on any child who has failure to thrive or microcephaly.  

                                                                -3-                                                          7125

----------------------- Page 4-----------------------


And [that is] why . . . we were concerned about it enough to send [Pam] to pediatric  


specialists."         She  testified  that  Abby  "has  always  seemed  very  involved  and  very  


concerned about [Pam]'s medical problems and her medical progress," and that the only  


evidence of abuse or neglect she heard was Sue's allegations.  In fact, two of Pam's  


specialists  cleared  her  while  she  was  still  in  Abby's  custody.                               The  superior  court  


accordingly found that Abby "does seem to take appropriate measures to deal with the  


health issues that the little girl has."  

          B.        Proceedings  

                    The first proceeding relevant to this case was a hearing on Sue and Todd's  


petition to be appointed as Pam's guardians.  After taking testimony from Abby and a  


family friend, the superior court concluded that while there was "a lot of evidence that  


would be extremely relevant in a custody matter," guardianship did not seem to be an  


appropriate step.  


                    Two interim custody hearings followed, at which the court heard further  


testimony  about Abby's drug  use,  mental health  issues,  and  alleged  neglect of her  


parenting responsibilities.  At the end of the first hearing the court ordered Abby to quit  


smoking marijuana because quitting was "in [her] child's best . . . interests."  The court  


awarded visitation to Abby's mother Sue because that was also in Pam's best interests,  


though the court said it could not find by clear and convincing evidence that Abby's  


custody of Pam was clearly detrimental to Pam's welfare - but "it[ was] not that far  



                    At the end of the second interim custody hearing the court again expressed  


its concern about Abby's drug use around Pam, but it left interim custody with Abby,  


finding that Sue and Todd still had not "shown by clear and convincing evidence at [that]  


point that [Abby] having custody of the child would be clearly detrimental to the welfare  


                                                               -4-                                                         7125

----------------------- Page 5-----------------------


of the child."  The court found that visitation with Sue remained in Pam's best interests,  


and it scheduled trial for September 2014.  


                    In March 2014, between the second interim custody hearing and the trial,  


Abby moved to Washington with Pam.  The move violated a provision in the superior  


court's domesticrelations standing order which prohibited takingthechild out ofAlaska.  


After a hearing, which Abby did not attend, the court issued a warrant for physical  


custody of Pam and granted interim custody to Sue and Todd.  When Abby refused to  


cede the child to Sue's custody, the court found Abby in contempt of court.                                            Sue and  


Todd took custody of Pam after Abby returned to Alaska in June.  


                    The court held the custody trial in September 2014. At the close of trial the  


court found by clear and convincing evidence that it would be detrimental to Pam's  


welfare for her to remain in Abby's custody.  The court issued a child custody decree  


awarding legal and physical custody of Pam to Sue and Todd and a child support order  


requiring Abby to pay Sue and Todd $50 per month.  


                    Nine months later Abby filed a motion to modify custody.  Her motion  


asserted first that the court's grant of custody to Sue and Todd following trial had been  


only temporary and that she had met the court's stated prerequisites for a reversion of  


custody to her - prerequisites she summarized as "get[ting] a mental health evaluation  


and follow[ing] all recommendations, and also show[ing] proof of sobriety."  She also  


argued that because of a substantial change in her life's circumstances, it would be in  


Pam's best interests to be returned to her custody.  The court denied her motion without  


a hearing, reasoning that its custody decree was intended to be permanent and that Abby  


failed to show any substantial change in circumstances justifying its modification; the  


court observed further that Abby had not, in fact, shown that she had satisfied the  

                                                               -5-                                                         7125

----------------------- Page 6-----------------------

conditions   it   had   advised   her   to   meet   before   it   would   "even  consider   modifying  



                      Abby appeals the denial of her motion to modify custody.  




                      "Whether the court applied the correct standard in a custody determination  


is a question of law we review de novo."3  



                      "To determine 'whether a party is entitled to a hearing on a motion to  


modify custody, we review the record and arguments de novo to determine whether the  



party alleged facts which, if true, demonstrate a substantial change in circumstances.' " 



"In so doing, we take the moving party's allegations as true."                                      We use our independent  


judgment to review the denial of a modification motion without a hearing; we will affirm  


the denial if "the facts alleged, even if proved, cannot warrant modification, or if the  


allegations are so general or conclusory, and so convincingly refuted by competent  



evidence, as to create no genuine issue of material fact requiring a hearing." 

           2          Emphasis in original.     

           3          Elton   H.   v.   Naomi   R.,   119  P.3d  969,   973   (Alaska   2005)   (quoting  

Moeller-Prokosch v. Prokosch                      , 27 P.3d 314, 316 (Alaska 2001)).             

           4          Hope P. v. Flynn G., 355 P.3d 559, 564 (Alaska 2015) (quoting Collier v.  


Harris, 261 P.3d 397, 405 (Alaska 2011)).  


           5          Collier, 261 P.3d at 405 (citing C.R.B. v. C.C., 959 P.2d 375, 378 (Alaska  



           6          Bagby v. Bagby, 250 P.3d 1127, 1128 (Alaska 2011) (quoting Morino v.  


Swayman, 970 P.2d 426, 428 (Alaska 1999)).  


                                                                   -6-                                                             7125

----------------------- Page 7-----------------------


                    In its initial resolution of a custody dispute between a biological parent and  


any third party, including a grandparent, the court must prefer the biological parent.7  



overcome that preference "the non-parent must showthat it clearly would be detrimental  


to the child['s welfare] to permit the parent to have custody," that the parent is unfit, or  

                                                              8   A third party seeking either visitation or  


that the parent has abandoned the child. 

custody bears the burden of proving one of these circumstances by clear and convincing  


evidence.9       But "[w]hen the non-parent has already been granted permanent custody, the  


parental preference drops out in subsequent modification proceedings."10   At that point  


any modification motion is subject to the usual test of AS 25.20.110(a), meaning that the  


custody  decree  will  be  modified  only  "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."11  


                    In this case Abby argues that the superior court awarded Sue and Todd only  


temporary custody at the close of the September 2014 trial, and therefore Abby did not  


need to show a change in circumstances as required by AS 25.20.110(a) in order to  


support a modification of that award. She contends further that because Sue and Todd's  


custody was only temporary, she remained entitled to the  Turner preference for the  


          7         Turner v. Pannick         , 540 P.2d 1051, 1053-54 (Alaska 1975). We                        refer to this  

preference as the         Turner  preference.  

          8         Id.  at   1054-55.  

          9         Evans  v.  McTaggart,  88  P.3d   1078,   1085  (Alaska  2004).  

          10        Id. at 1085 n.32 (citing C.R.B., 959 P.2d 380).  


          11        Hunter  v.  Conwell  (Hunter I), 219  P.3d   191,   196  (Alaska  2009)  (quoting  

AS  25.20.110(a)).  

                                                              -7-                                                        7125

----------------------- Page 8-----------------------

biological parent.                                    Alternatively, Abby argues that even if the court's award was for                                                                                                                                

permanent    custody,    her    modification    motion    showed    a    substantial    change    in  

circumstances that entitled her to an evidentiary hearing.                                                                                                                

                    A.	                 The Superior Court's Order Following Trial Was A Final Custody                                                                                                                               


                                       Abby's argument that thesuperior court's grant of                                                                                                 custody to Sue and Todd                                 

was only temporary is based in part on some of the court's oral remarks at the close of                                                                                                                                                                  

trial:  that its order was "not written in stone" and that granting Sue and Todd custody   


"doesn't mean it has to happen forever."                                                                                                                                                                           

                                                                                                                                From this Abby argues that when the court  


denied her motion to modify custody it used the wrong standard, because she did not  


need to show a substantial change in circumstances in order to effect a change in merely  


temporary custody. She argues that this case is governed instead by the proposition that  


"[p]arents can regain custody [from non-parents] in a temporary-custody case without  



showing a substantial change in circumstances, and can rely on the Turner preference." 

But becauseweconcludethatthecourt's custody decree was indeed permanent and final,  


Abby was required to show a substantial change in circumstances before she was entitled  


to a hearing.  


                                        In its written order denying Abby's modification motion, the superior court  


strongly rejected her argument that the custody decree was temporary:  


                    12                 Abby also argues that the court must have granted Sue and Todd only                                                                                                                                        

temporary custody because "[i]t is . . . abundantly clear that the evidence presented at                                                                                                                                                                  

trial does not support a finding of permanent custody with the grandparents."                                                                                                                                                                   This  

argument is in essence an appeal from the final decree, but the time to appeal from the                                                                                                                                                                

decree is long passed.                                            See  Alaska Rule of Appellate Procedure 204(a)(1) ("The notice                                                                                                              

of appeal shall be filed within 30 days . . . .").                                                                                    Because Abby did not appeal the custody                                                            

decree, we address here only her motion to modify the decree, not whether the decree                                                                                                                                                        

was sufficiently supported in the first place.                                                                  

                    13                  C.R.B., 959 P.2d at 381 n.12.  


                                                                                                                            -8-	                                                                                                                 7125

----------------------- Page 9-----------------------

                                                     The court absolutely did not state in its oral findings or                                                                            

                                   anywhere else that the "custody decision was temporary."                                                                                                       

                                   The court never used that word and had no subjective intent                                                                                   

                                   to have its order be construed as anything but a standard                                                                             

                                   custody order subject to modification under the provisions of                                                                                           

                                   AS 25.20.110 and the case law interpreting that statute.                                                                                              In  

                                   stating in its oral findings that nothing is written in stone, the                                                                                    

                                   court was simply acknowledging the fact that                                                                                any   custody  

                                   order is subject to                                 modification   based   on   a showing                                                        of a   

                                   substantial                      change                 in        circumstances                              that          requires    the  

                                   modification and that the modification is in the best interests                                                                         


                                   of the child.                           

The superior court is in the best position to explain what it subjectively intended by its  


custody decree, and its subjective intent is wholly consistent with the record.  


                                   At  the  first  two  hearings  the  superior  court  expressly  identified  the  


proceedings  as  "interim custody"  hearings  in  its  introductory  comments  and  when  


talking about scheduling their continuation. At the close of the second hearing the court  


was equally explicit about the issue it was deciding:  "[A]s far as interim custody is  


concerned, [Abby] will have interim custody." The court ordered the parties to propose  


a visitation schedule "for now until our trial in September."  


                                   In its oral remarks at the close of trial the court awarded sole legal and  


primary physical custody to Sue and Todd and noted that it was also making "the other  


finding required under Evans v. McTaggart," a case both parties had invoked repeatedly  


during the interim-custody phase of the proceedings as governing the ultimate issue of  


whether custody could be awarded to a non-parent.15  The court's written findings of fact  


and conclusions of law, and its custody decree, reiterated that sole legal and primary  


physical custody was awarded to Sue and Todd, with Abby given limited supervised  


                  14               Emphasis in original.             

                  15               88 P.3d at 1082-86.  


                                                                                                              -9-                                                                                                               7125  

----------------------- Page 10-----------------------

visitation.   The court ordered child support at the same time and issued a separate child                                                                                                                                  

support order plainly marked "Final."                                                                   There is nothing about these orders that implies                                                             

they are merely interim.                    

                                    Abby nonetheless argues that the superior court's orders were ambiguous,                                                                                              

and she points to a case in which we determined that an ambiguous custody decree was                                                                                                                                           

temporary.   In that case,                                         Britt v. Britt                     , the trial court granted custody of a child to the                                                                        

paternal grandparents but at the same time "made a sua sponte order that the custody                                                                                                                                

question be placed on the calendar six months later 'to see if there's been any changes                                                                                                                            

                                                                                                                                               16      At the subsequent hearing the  

in the status of either parent or the grandparents.' "                                                                                                                                                                          

mother argued that the earlier grant of custody had been temporary and she was still  


entitled to the parental preference; we ultimately agreed, reversing the trial court.17   We  


held that the custody order was temporary because "the court indicated a desire to review  


the initial decision . . . without the necessity of any [motion to modify custody]" and  


because the trial court had failed to give the mother the benefit of the Turner biological- 


parent preference in its initial custody award.18  


                                    In this case the superior court did not expressly withhold judgment or  


schedulefurther proceedingsoncustody. Its advice to Abby about the improvements she  


would  have to show  before  it would  even "consider  a change in  custody" did  not  


guarantee her another hearing.19  Unlike the mother in Britt, Abby was therefore required  


                  16                567  P.2d  308,  309  (Alaska   1977).  

                  17                Id.  at  309-11.  

                  18                Id.  at  310.  

                  19                The  superior  court  said,  "[Abby]  needs  to  get  herself  in  the  care  of  a  good  

psychologist  or  psychiatrist.   She  needs  to  get  a  mental  health  evaluation  and  follow  all  

recommendations. . . . She'll need to show  proof  of  sobriety  for  a  period  of  at  least  six  


                                                                                                               -10-                                                                                                         7125

----------------------- Page 11-----------------------

to, and did, move for a modification of custody in order to raise the arguments she now                                                                         

makes on appeal.                   And unlike the trial court in                          Britt, the superior court here applied the                               

appropriate burden of proof in its initial determination of custody as between the parent                                                                    

and the non-parent, giving Abby the benefit of the                                               Turner  biological-parent preference;   

it would be antithetical to the child's best interests to apply it again in modification                                                       

                         20    The superior court's observation that the award of custody to Sue and  


Todd was "not written in stone" and "doesn't mean it has to happen forever" simply  


echoed our observation in Britt  that "[a]ll custody awards are subject to motions for  




                          Abby suggests a different policy consideration that distinguishes her case.  


Although she had private counsel through the interim-hearing stage of the proceedings  


and  is  represented  again  on  appeal,  she  did  not  have  an  attorney  at  trial.                                                                          She  




months before I can consider changing . . . custody . . . ."  Abby argues that "[t]here  


would be no need to set such conditions for a parent to resume custody if the award of  


custody was permanent."  In denying Abby's motion to modify custody, the superior  


court wrote that its "intent in making this statement was to encourage [Abby] to make  


some major and necessary changes in her life." Again, consistent with the court's stated  


intent, its remarks do not appear to be limitations on the finality of the custody decree but  


rather wholly appropriate advice about the minimum changes Abby would have to make  


before the court would even consider a motion to modify that decree.  

             20           See Evans, 88 P.3d at 1085 n.32 ("When the non-parent has already been  


granted permanentcustody, theparental preferencedrops out in subsequent modification  


proceedings." (citing C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998)); see also C.R.B.,  


959 P.2d at 380 ("Having once protected the parent's right to custody, at the risk of  


sacrificing the child's best interests, we should not then sacrifice the child's need for  


stability in its care and living arrangements by modifying those arrangements more  


readily than in a parent-parent case.").  


             21           567 P.2d at 310.  


                                                                                -11-                                                                           7125

----------------------- Page 12-----------------------

appropriately invokes our direction for custody cases involving pro se litigants that                                                                                       

"[c]ourts should make clear whether a grant of nonparental custody is temporary or                                                                                              

permanent, and ensure that they carefully warn a parent that a hearing may have the latter                                                                                

               22    But as explained above, the superior court did make it clear throughout the  


course of the proceedings - from interim hearing to interim hearing to trial and decree  


- that permanent custody would be decided at the trial in September 2014.  And Abby  


does not suggest she would have done anything differently had she been given more  


specific warnings of the trial's significance.  


                            In sum, we see no reason to question the superior court's stated intention  


that its September 2014 award of custody to Sue and Todd be permanent and final,  


subject - like all such decrees - to a properly supported motion to modify custody  


pursuant to AS 25.20.110(a).  


                            B.	           The Superior Court Did Not Err In Denying Abby's Motion To  


                                          Modify Custody Without An Evidentiary Hearing Because She  


                                          Did   Not   Show   A   Substantial   Change   Of   Circumstances  


                                          Affecting Pam's Best Interests.  


                            "Modification of a custody determination is a two-step process:  first, 'the  


parent  seeking  modification  must  establish  a  significant  change  in  circumstances  


affecting the children's best interests'; only then is a best interests analysis performed."23  



"A motion to modify custody triggers a right to an evidentiary hearing only if the moving  


party 'make[s] a prima facie showing of a substantial change in circumstances affecting  

              22	           C.R.B., 959 P.2d at 381 n.12.                      

              23            Hunter v. Conwell                      (Hunter II           ), 276 P.3d 413, 419 (Alaska 2012) (quoting                                

Hunter I  , 219 P.3d 191, 196 (Alaska 2009));                                                 see also Heather W. v. Rudy R.                                   , 274 P.3d     

478, 481 (Alaska 2012) ("As a threshold matter, a party seeking a modification of  


custody must make a prima facie showing that a substantial change in circumstances has                                                                                        


                                                                                      -12-	                                                                               7125

----------------------- Page 13-----------------------


the child[]'s welfare.' "                           "The required change in circumstance must be significant or                                                          

 substantial, and must be demonstrated relative to the facts and circumstances that existed                                                                    

                                                                                                                                            25   "A change in  

 at the time of the prior custody order that the party seeks to modify."                                                                                                 

 circumstances is unlikely to be substantial enough to 'overcome our deep reluctance to  


 shuttle children back and forth . . .' unless the change affects the child[]'s welfare and  


 'reflect[s] more than mere passage of time.' " 


                           Abby argues that the superior court erred in denying her motion to modify  


 custody without holding an evidentiary hearing because positive developments in her  


 life, taken in the aggregate, amounted to a substantial change in circumstances. She lists  


the following changes:  (1) she complied with the court's requirements for sobriety and  


 a mental health assessment; (2) she is in a "serious relationship with her fiancé"; (3) she  


 is pregnant, and it is in Pam's best interest to become part of the new family unit;  


 (4) Abby's new home would allow Pam to have her own bedroom; (5) Abby is attending  


 college to become a nurse and is maintaining a high grade-point average; (6) she has a  


job  as  an  administrative  assistant;  and  (7)  Sue  and  Todd  have  interfered  with  her  


visitation rights. The superior court concluded that these alleged changes were too short- 


term as yet to be deemed substantial.  In order to decide whether this was error, and  


              24           Hope P. v. Flynn G., 355 P.3d 559, 565 (Alaska 2015) (first alteration in                                      

 original) (quoting                  Schuyler v. Briner                   , 13 P.3d 738, 742 (Alaska 2000)).                                    

              25           Heather W., 274 P.3d at 481-82 (quoting Jenkins v. Handel, 10 P.3d 586,  


 589 (Alaska 2000)).  


              26           Hope P., 355 P.3d at 565 (first alteration in original) (quoting C.R.B., 959  


P.2d at 381); see also Starkweather v. Curritt, 636 P.2d 1181, 1183 (Alaska 1981) ("The  


 fact that [the movant] is as capable of raising the children as [the custodial parent] is not  


 enough to warrant a change in custody.").  


                                                                                  -13-                                                                            7125

----------------------- Page 14-----------------------

because the superior court denied Abby's motion to modify without a hearing, we must                                                               

determinewhether Abby "alleged facts that, taken as true, couldwarrant modification."                                                                   27  


                        1.	         Abby's mental health assessment and sobriety do not constitute  


                                    a substantial change that affects Pam's best interests.  


                        Abby did get a mental health assessment approximately five months after  


the custody decree, as the superior court had advised her to do if she wanted to seek a  


modification  of  custody.                          The  superior  court  found  incredible  the  assessment's  


conclusion that Abby "did not meet the criteria for any mental health disorders," finding  


that the conclusion "flies in the face of the observations this court was able to make over  


the course of two highly contentious hearings in this matter" and "appears based entirely  


on [Abby's] self-reporting," which "also raises concerns about . . . [the assessment's]  


conclusions."  But credibility determinations were not properly a part of the superior  


court's decision whether to grant Abby a hearing; it was required to accept Abby's  

                              28                                                                                                          29  


evidence as true.                  We accordingly assume that the assessment was accurate. 

                        But regardless of the assessment's accuracy, it reflects no change "relative  


to the facts and circumstances that existed at the time of the prior custody order."30  


            27	         Morino v. Swayman                   , 970 P.2d 426, 428 (Alaska 1999).                               



                        The superior court may deny a hearing on a motion to modify custody only  


"if it considers [the] motion and finds it plain that the facts alleged in the moving papers,  


even if established, would not warrant a change in custody."  Schuyler, 13 P.3d at 741  


(alteration in original) (emphasis added) (quoting C.R.B., 959 P.2d at 378).  

            29          Although the superior court faulted the assessment for relying "entirely on  


[Abby's] self-reporting," the assessment did include, for example, facts reported by  


Abby's mother that Abby claimed not to remember. It noted the variety of mental health  


issues with which Abby has been diagnosed, her alleged suicide attempt, and her drug  


dependency, and it characterized Abby as "high risk."  


            30          Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000).  


                                                                          -14-	                                                                   7125

----------------------- Page 15-----------------------

act of getting the assessment was not itself a change in circumstances.                                                                                                                                                                                                                                                    Assuming the   

accuracy  of   its   conclusion   that   Abby   suffered   from no                                                                                                                                                                                             mental   health   disorders   -   

potentially resolving the superior court's concern at trial that she had "some mental                                                                                                                                                                                                                                                                       

health issues" - that did not alleviate the court's central concern:                                                                                                                                                                                                                           that "[Abby] doesn't                                        

 see, or won't see the terrible harm that she's inflicted on this child, due to her own                                                                                                                                                                                                                                                                                

conduct," particularly her marijuana dependency.                                                                                                                                                                            

                                                           Abby's motion for modification asserted that she was not using marijuana,                                                                                                                                                                                                         

and in her supporting affidavit she said that she had not "and will not consume or use any                                                                                                                                                                                                                                                                                  

controlled substances, including marijuana, during [her] pregnancy."                                                                                                                                                                                                                                           Setting aside this                                           

 statement's equivocation as to whether her sobriety would last past the birth of her child,                                                                                                                                                                                                                                                                       

her exhibits showed that she had not yet had the six months' sobriety the court indicated                                                                                                                                                                                                                                                           

was essential "before [it could]                                                                                                           consider changing the custody aspect of this case."                                                                                                                                                                                   

The   mental   health   assessment   from   just   four   months   earlier   quoted   her   as   saying,  

consistent with her trial testimony, "I do smoke [marijuana] like I smoke cigarettes" and                                                                                                                                                                                                                                                                                   

"I don't get stoned.                                                                   I smoke every 2 to three hours."                                                                                 

                                                           Assuming she had quit immediately following the assessment and thus had                                                                                                                                                                                                                                           

four months of sobriety at the time she made her motion, the amount of time at issue is                                                                                                                                                                                                                                                                                             

                                                                                                                                                   31          There the superior court based a change in custody  

close to that in                                                Gratrix v. Gratrix.                                                                                                                                                                                                                                                                      

on the father's "recent control of his drinking problems" - in the four months between  


the initial decree and modification motion -  and his remarriage just five days before  


he filed the motion.32                                                                           But we reversed, explaining that those "were not proper grounds  


                             31                            652  P.2d  76,  84  (Alaska   1982).  

                             32                           Id.  at  78,  83.  

                                                                                                                                                                                      -15-                                                                                                                                                                             7125  

----------------------- Page 16-----------------------

upon which to base a change of custody, especially given the short duration of this                                                           

improved lifestyle."              33  

                                                                                                          34   In Nichols the mother  

                       We distinguished Gratrix in Nichols v. Mandelin.                                                                 


presented evidence of her "overall maturation, her changed marital status, her full time  


employment [for at least two years], and her sustained  control of a former drinking  


problem."35           The mother attended Alcoholics Anonymous and had undergone a 30-day  


alcoholism treatment program; she testified that she had since consumed alcohol but not  


to the point of intoxication, and a custody investigator opined that alcohol was no longer  


a problem for her.36               Here, although Abby's mental health assessment noted that "[s]he  


does  appear  to  have  a  dependence  on  [m]arijuana  that  may  benefit  from  ongoing  


evaluation," her motion showed no commitment to a process that would control her  


marijuana dependence during Pam's childhood.  


                       The superior court in this case made particularly clear its concern with  


Abby's  "ability  to  provide  care  for  a  child  when  [she  is]  under  the  influence  


of . . . marijuana."  Four months of sobriety and a commitment to abstain during her  


current pregnancy did not address that legitimate concern or establish a substantial  


change in circumstances.  


                       2.	        Abby's other life changes do not constitute a substantial change  


                                  affecting Pam's best interests.  


                       Abby's motion to modify custody asserted a variety of other life changes  


that she argues together amounted to a substantial change in circumstances.  But even  


           33          Id.  at 83.   



                       790 P.2d 1367, 1372 & n.15 (Alaska 1990).  



                       Id. at 1372 (emphasis added) (footnotes omitted).  



                       Id. at 1368.  

                                                                      -16-	                                                                7125

----------------------- Page 17-----------------------

viewed in the light most favorable to Abby, we agree that they are not "significant                                                                                  


enough to warrant the disruption inherent in changing a child's custody."                                                                                                            

                                                                                                                                                                      While each  


of the asserted changes may mark improvements in Abby's life, the significance of their  



effect on Pam's best interests is not so apparent. 


                              In Starkweather v. Curritt we affirmed the trial court's denial of a mother's  


motion to modify custody where she "had married two more times . . . and had two more  


children," and "[t]he evidence also indicated that [she] is an excellent custodian for the  


children she currently is raising and that she is capable of giving the other two children  



                                                                                                                              Though the mother's life and  

[whose custody was at issue] the same level of care." 


parenting capability had clearly improved, there was insufficient evidence that it was in  



the children's best interests to change the status quo. 


                             Abby's motion had less support than the motion we found to have been  


properly denied in Starkweather, as it failed to show that her new life was stable or that  


her progress was sustainable in the long term. A new spouse, a new house, an expanding  


family, a new job, and a new course of study may all be positive steps for a parent, but  


whether they amount to a substantial change in circumstances depends on their effect on  

               37             Collier v. Harris                  , 261 P.3d 397, 407-09 (Alaska 2011)                                              (affirming the denial          

of a mother's motion to modify shared custody where "she [had] graduated fromcollege,                                                                                          

gained full-time employment, and started evening classes to work toward her master's                                                                                        

degree" since the prior custody order).                                                

               38            See Gratrix, 652 P.2d at 83 ("[M]ere improvement in the position of one  


of the parties is not sufficient to justify a change in custody." (citing Nichols v. Nichols,  


516 P.2d 732, 736 (Alaska 1973))).  


               39             636 P.2d 1181, 1182 (Alaska 1981).  


               40            Id. at 1182-83.  


                                                                                           -17-                                                                                     7125

----------------------- Page 18-----------------------

the child's best interests, which cannot be gauged only in the short term; otherwise a                                                                                                           


child could be shuttled back and forth at each milestone in a parent's life.                                                                                                  

                              For example, Abby did not present evidence that Pam would be better off  


in her custody because of her relationship with her new fiancé. In fact, the superior court  


wrote in its order denying her motion that her fiancé's posts on social media "reflect[ed]  


exactly  the  indignant  and  tone-deaf  self-righteousness  expressed  by  [Abby]  in  her  


previous testimony at the hearings in 2014" and could thus be seriously detrimental to  


Pam's relationship with her grandmother.   Abby did not deny the evidence but only  


questioned how Sue and Todd obtained it.  


                              The fact that Abby had a new home also failed to address the court's core  


concerns about her housing, which related not to whether Pam could have her own  


bedroom (a positive development Abby mentioned in her affidavit) but rather stability,  


cleanliness, and the people Abby associated with.   And with regard to employment,  


Abby's affidavit again showed positive developments - a three-month job followed by  


another that was in its sixth month when the motion was filed - but short-term jobs had  


always been a part of her history.  


                              In short, Abby's evidence presented, at best, a possible future with her in  


which Pam's best interests would be served equally well as they are now while Pam lives  


with Sue and Todd.  Missing was evidence that the changes were sustainable over the  


long term and would affect Pam's best interests in such a way as to favor a modification  


of the status quo.  And most importantly, the changes failed to allay the superior court's  


primary concern about Abby's ability to care for Pam while under the influence of  


               41             See Nichols                , 516 P.2d at 736 ("[W]e are unable to see how the welfare of                                                                         

the child would be improved or better served" because of a "showing that [the non-                                                                                                       

custodial mother] had remarried and had a home in which to care for the child." (quoting                                                                                         

Laughton v. Laughton                               , 259 P.2d 1093, 1102 (Wyo. 1953))).                               

                                                                                             -18-                                                                                        7125

----------------------- Page 19-----------------------

marijuana.   Absent proof of six months' sobriety, the court's reasonable precondition                                                                                                                                                                           

was simply not met. We agree that the various changes in Abby's life failed to show the                                                                                                                                                                                                            

 substantial change in circumstances necessary to support a modification of custody.                                                                                                                                                                                   

                                               3.	                    SueandTodd's                                             allegedinterferencewithAbby'svisitationis                                                                                                                         not  

                                                                      a substantial change in circumstances that affects Pam's best                                                                                                                                                           


                                               Abby avers thatSueandTodd                                                                             haveinterfered with her visitation rights, and                                                                                               

 again we accept her allegations as true for purposes of determining whether they entitled                                                                                                                                                                                          

her to a hearing.                                         Abby's allegations are serious and might warrant a modification to the                                                                                                                                                                   

visitation order, but her argument about custody is misplaced.                                                                                                                                                              In her brief she quotes                                   

Hermosillo v. Hermosillo                                                                 for the proposition that "[a]ctions by a custodial parent which                                                                                                                                

 substantially interfere with the noncustodial parent's visitation rights '[are] sufficient to                                                                                                                                                                                                         


 constitute a change [in circumstances].' "                                                                                                                                                                                                                                                     

                                                                                                                                                            But the rest of the sentence  clarifies that  


 such interference " 'may justify and require a modification of the visitation order,' if  



 such modification is in the best interest of the child."                                                                                                                                            "The change in circumstances  


required  for  modification  of  visitation  rights,  moreover,  need  not  rise  to  the  level  



 sufficient to warrant a change of custody."                                                                                                                Here, Abby sought to modify custody, not  



                                               Abby correctly notes that a custodial parent's interference with telephone  


visitation  is  a  serious  issue  that  may  rise  to  the  level  of  a  substantial  change  in  

                        42                     797 P.2d 1206, 1209 (Alaska 1990) (second alteration in original) (quoting                                                                                                                                                        

H.  v. H.                   , 632 S.W.2d 432, 434 (Mo. App. 1982)).                                                                                

                        43                    Id. (emphasis added) (quoting H., 632 S.W.2d at 434).


                        44                    Id.

                                                                                                                                                -19-	                                                                                                                                        7125

----------------------- Page 20-----------------------


 circumstances,                       but generally, "a superior court may not modify custody solely because                                                                        

 the custodial parent does not comply with orders of the court; it must still conduct a best                                                                                                

                                           46    The superior court in this case found both that Abby was an unfit  

 interests analysis."                                                                                                                                                                     

parent and that being in her custody would be clearly detrimental to Pam's welfare. With  


 these issues outstanding, Sue's alleged interference with Abby's visitation rights cannot  


justify a modification of custody.  


                               4.	            Taken  in  the  aggregate,  Abby's  allegations  did  not  show  a  


                                              substantial change in circumstances.  


                               We are required to review "multiple changed circumstances to determine  


whether, in the aggregate, the changes were sufficient to justify a reevaluation of a  


 custody decree."47  


                                            We have done so here, and we conclude that, even in the aggregate,  


Abby's asserted changes do not amount to a substantial change in circumstances that  


 affects Pam's best interests.  

V.	             CONCLUSION  

                               We  AFFIRM the superior  court's denial of Abby's motion  to  modify  



                45             See Hunter II                  , 276 P.3d 413, 421 (Alaska 2012) (affirming the superior                                                           

 court's    denial    of    a    motion    to    modify    where    "[i]t    [was]    clear  that  telephonic  

 communication . . . continues to be problematic" but conflicting testimony showed that                                                                                                      

 some   missed   calls   were   outside   of   court-ordered   times   and   make-up   calls   were  

 sometimes made);                          Kelly v. Joseph                   , 46 P.3d 1014, 1017-18 (Alaska 2002) (affirming the                                                             

 superior court's custody modification where it examined telephone records and found                                                                                                    

 "the level of telephone communication . . . woefully inadequate").                                                      

                46             Kelly,  46  P.3d  at  1018  (citing  Platz  v.  Aramburo,  17  P.3d  65,  71  


 (Alaska 2001)).  


                47            Long v. Long, 816 P.2d 145, 152 (Alaska 1991).  


                                                                                              -20-	                                                                                       7125

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights