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. Moore v. McGillis (1/12/2018) sp-7217

Moore v. McGillis (1/12/2018) sp-7217

           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  

                                                                                                                            

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



NICKCOLE  E.  MOORE,                                                  )  

                                                                      )     Supreme  Court  No.  S-16375  

                                 Appellant,                           )  

                                                                                                                                       

                                                                      )     Superior Court No.  1KE-10-00676 CI  

           v.                                                         )  

                                                                                                 

                                                                      )     O P I N I O N  

                          

FORREST W. MCGILLIS,                                                  )  

                                                                                                                    

                                                                      )     No. 7217 - January 12, 2018  

                                 Appellee.                            )  

                                                                      )  



                                                                                                                 

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

                                                                                                    

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



                                                                                                            

                      Appearances: Allison Mendel and John J. Sherman, Mendel  

                                                                                                               

                      Colbert & Associates, Inc., Anchorage for Appellant.  Blake  

                                                                                                        

                      M. Chupka, Chupka Currall LLC, Ketchikan, for Appellee.  



                                                                                                            

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

                                           

                      and Carney, Justices.  



                                         

                      CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                                                                        

                      A mother moved to modify an existing custody arrangement with her ex- 



                                                                                                                                         

husband. She asked that she be given primary custody of their daughter and that the ex- 



                                                                                                                       

husband's  visitation  rights  and  legal  custody  over  her  son  -  the  ex-husband's  



                                                                                                                                         

stepson - be terminated.  The trial court denied her motion and found that, given the  



                                                                                                                                        

recent intervention of the stepson's biological father, the ex-husband's obligation to pay  



                               

child support was terminated.  


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

                                                                     We affirm the trial court's denial of the modification motion with regard                                                                                                                                                                                                                                               



to the daughter. But we hold that the legal intervention of a previously absent biological                                                                                                                                                                                                                                                                                                            



parent   constitutes   a   substantial   change   in   circumstances   as   a   matter   of   law,   and  



 accordingly we reverse the trial court's denial of the modification motion for the son and                                                                                                                                                                                                                                                                                                                                            



remand for                                                   best interests findings under                                                                                                                              AS 25.24.150(c).                                                                                  Finally,   we hold                                                                             that a   



psychological parent's childsupport obligationcontinuessolongasthatparent                                                                                                                                                                                                                                                                                                                               maintains  



 some custody of the child, and reverse the trial court's absolution of the ex-husband's                                                                                                                                                                                                                                                                                            



 child support obligation.                                            



 II.                               FACTS AND PROCEEDINGS                                                     



                                  A.                                 Prior Modification Motions                                                                              



                                                                    Nickcole Moore and Forrest McGillis were married in Ketchikan in 2006.                                                                                                                                                                                                                                                                                                                  



Nickcole had a son from a previous relationship, born in 2004.                                                                                                                                                                                                                                                                            The son's biological                                       



 father, Jeremy Thompson, had been absent since the son's birth.                                                                                                                                                                                                                                                                        In 2007 Nickcole and                                                                           



Forrest had another child, a girl.                                                                                                                                     



                                                                     In November 2010 Forrest filed a petition for divorce.                                                                                                                                                                                                                             The superior court                                                     



 issued a decree of divorce in December 2011 after a two-day hearing. The court awarded                                                                                                                                                                                                                                                                                                                       



the parents shared legal custody of both children.                                                                                                                                                                                                                   Forrest received primary physical                                                           



 custody of their daughter in Ketchikan, while Nickcole, who had since moved to Arizona                                                                                                                                                                                                                                                                                                                          



 and begun a new relationship, received primary custody of her son. The court found that                                                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                                                                        1  and awarded him  

Forrest had established himself as the boy's psychological father,                                                                                                                                                                                                                                                                                                                                                                  



visitation with the son in Ketchikan for four weeks every summer and two weeks during  

                                                                                                                                                                                                                                                                                                                                                                                                                        



                                   1                                A "psychological parent" is "one who, on a day-to-day basis, . . . fulfills the                                                                                                                                                                                                                                                                                        



 child's psychological needs for an adult . . . . This relationship may exist between a child                                                                                                                                                                                                                                                                                                                             

 and any adult; it depends not upon the category into which the adult falls - biological,                                                                                                                                                                                                                                                                                                          

 adoptive,   foster,   or   common-law   -   but   upon   the   quality   and   mutuality   of   the  

 interaction."  Evans v. McTaggart                                                                                                                                        , 88 P.3d 1078, 1082 (Alaska 2004) (quoting                                                                                                                                                                                      Carter v.   

Brodrick, 644 P.2d 850, 853 n.2 (Alaska 1982)).                                                                                                                                                                    



                                                                                                                                                                                                                       -2-                                                                                                                                                                                                       7217
  


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

                                                                                                                                                                                                                   2  

the Christmas season in alternating years.                                                                                                                                                                               Nickcole was awarded a similar arrangement                                                                                                                            



with   their   daughter.     Both   parties were ordered                                                                                                                                                                                                           to allow twice-per-week                                                                                                                telephone  



contact with the child in the other's custody.                                                                                                                                                                                           



                                                                     In May 2012 Nickcole filed a motion to modify custody, asking for "full   



custody" of her son and primary custody of her daughter.                                                                                                                                                                                                                                                        She alleged that the living                                                                                     



 situation in Ketchikan had deteriorated, that Forrest had prevented meaningful contact                                                                                                                                                                                                                                                                                                                                  



with their daughter, and that Forrest had assaulted Nickcole during the most recent                                                                                                                                                                                                                                                                                                                                           



custody exchange.                                                                                    Forrest denied the assault allegation and claimed that his living                                                                                                                                                                                                                                                         



 situation was "perfectly suited for the blended family being raised" by him and his                                                                                                                                                                                                                                                                                                                                                          



girlfriend.   



                                                                     The court denied Nickcole's motion after a hearing.                                                                                                                                                                                                                             It concluded, based                                                         



on   recordings   of   the   alleged   assault   and   on   witness   testimony,  that  Nickcole   had  



 fabricated the incident and "perjured herself in court."                                                                                                                                                                                                                                 It dismissed her other claims as                                                                                                                          



unproven and exaggerated.                                                                                                                     



                                                                     In May 2013 Nickcole filed a second motion to modify custody and child                                                                                                                                                                                                                                                                                          



 support, asking for primary custody of their daughter and sole custody of her son.                                                                                                                                                                                                                                                                                                                                                     She  



repeated a number of allegations regarding Forrest's "chaotic" living environment and                                                                                                                                                                                                                                                                                                                                                       



his refusal to facilitate contact with the children, and added that the recent reappearance                                                                                                                                                                                                                                                                                                



of   Jeremy   Thompson,   her   son's   biological   father,   should   be   considered   a   changed  



circumstance warranting modification.                                                                                                                                                                      



                                                                     The   court  denied   Nickcole's   motion   without   a   hearing.     It   found   her  



allegations regarding contact and Forrest's living conditions unsupported and stated that                                                                                                                                                                                                                                                                                                                                                    



                                   2                                 "To be awarded custody a 'non-parent must show that the child would                                                                                                                                                                                                                                                                                     



 suffer clear detriment if placed in the custody of the parent.' "                                                                                                                                                                                                                                                        Osterkamp v. Stiles                                                                                          , 235   

P.3d 178, 185 (Alaska 2010) (quoting                                                                                                                                                                  Evans, 88 P.3d at 1085).                                                                       



                                                                                                                                                                                                                         -3-                                                                                                                                                                                                           7217
  


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

                                                                                                                               

the reappearance of the son's biological father and his increased contact with the son  



                                                                                            

"[did] not mean that . . . custody . . . needs to be modified."  



                                                                                                                               

                    In May 2015 Jeremy filed a "Petition to Intervene in Custody Action and  



                                                                                                                     

Request for Allocation of Parental Rights and Responsibilities" as the son's biological  



                                                                                                                                  

father.  Shortly thereafter Nickcole filed a third motion to modify custody, seeking to  



                                                                                                                        

terminate Forrest's visitation rights to the son and once more asking for primary physical  



                                                                                                                               

custody of their daughter.   She alleged that Forrest's relationship with her son had  



                                                                                      

diminished, that Jeremy had since developed a "strong relationship" with the son, that  



                                                                                                                               

Forrest's living situation had "deteriorated" since the original custody order, and that  



                                                                                                                                      

Forrest was"interferingwithNickcole's rightto telephonecontact with [their daughter]."  



                                                                                                                       

                    Forrest opposedNickcole's motion, but agreed that Jeremycould intervene  



                                                                                                                                      

and  assume  parental  responsibilities,  including  Forrest's  child  support  obligation.  



                                                                                                       

Nickcole objected that Forrest could not both maintain custody of the son and absolve  



                                                     

himself of his support obligation.  



                                                                                                                    

                    The court granted Jeremy's petition to intervene, scheduled a hearing on  



                                                                                         

Nickcole's motion, and appointed a custody investigator.  



                                                                                              

          B.        The Modification Hearing And The Court's Findings  



                                                                                                                               

                    At the hearing the custody investigator testified and recommended that  



                                                                                                                                

physical custody remain largely within the status quo:  primary physical custody of the  



                                                                                                                                 

son with Nickcole and primary physical custody of the daughter with Forrest.  But he  



                                                                                                                      

also recommended that Nickcolebe awarded sole legal custody of her son, and suggested  



                                                                                                                     

"fine-tuning" the custody schedule to reduce the son's summer visitation in Ketchikan  



                                                                                                                        

to  three  weeks  to  better  reflect  the  child's  developing  preferences.                                   The  custody  



                                                                                                                             

investigator testified that the children had grown accustomed to their alternating, dual- 



                                                                                                                   

household lifestyle, and that the primary concern for the parents should be maintaining  



                                                                                                                              

stability. Although the parents offered two different types of home -Forrest living with  



                                                                -4-                                                         7217
  


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

                                                                                                                                 

extended family in Ketchikan, Nickcole with a nuclear family in Phoenix, Arizona  -  



                                                                                                                               

the custody investigator testified that neither environment was superior to the other and  



                                                                                                             

that both children appeared to be doing well in their respective homes.  



                                                                                                                             

                    The custody  investigator  also  testified  that Forrest and  Nickcole were  



                                                                                             

ineffective communicators.  He described Nickcole as more willing to facilitate phone  



                                                                                                                   

contact between Forrest and the children, and Forrest had confirmed to the investigator  



                                                                                                       

that his phone contact with the son had been "less than adequate."  



                                                                                                                               

                    Nickcole testified that Forrest's contact and relationship with her son had  



                                                                                                                                 

been diminishing over time and that the son was now less interested in speaking to  



                                                                                                                               

Forrest than in speaking to Jeremy, with whom he communicated often.  She stated that  



                                                                                                                               

Forrest had not allowed her to contact their daughter as the custody order required.  She  



                                                                                                                           

claimed that she was only able to speak to their daughter once every two to three weeks  



                                                                                                                            

although  she tried  to call twice a week.                         She also argued  that Forrest's new work  



                                                                                                                            

schedule - 2 p.m. to 10 p.m. on weekdays - kept him from the children even when  



                                             

they were visiting with him.  



                                                                                                                          

                    The court found that Nickcole had not demonstrated a substantial change  



                                                                                                                         

in circumstances as to the daughter.  Nickcole's problems communicating with Forrest,  



                                                                                                                               

it found, were partly due to Nickcole's "rather rigid and self-righteous attitude," and  



                                                                                                                    

were "nothing new."  The court then proceeded to "consider the physical, emotional,  



                                                                                                                                

mental,  religious,  and  social  needs  of  the  child,"  and  concluded  that  there  was  no  



                                                                                                                               

indication that Forrest's care of their daughter was unsatisfactory.  The court found that  



                                                                                                                               

both children had "adjusted" to the living situations and each "lived in a stable and  



                                          

satisfactory environment."  



                                                                                                                                  

                    The court made no express finding regarding changed circumstances as to  



                                                                                                                                 

the son.  It instead repeated its previous finding that Nickcole had fabricated an act of  



                                                                                                                 

domestic violence in an effort to gain an advantage over Forrest in custody proceedings,  



                                                                -5-                                                         7217
  


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

                                                                                                                        

and concluded that Nickcole was "just hell bent on terminating the relationship between  



                                                                                                                             

[her son] and [Forrest]."  Based on the testimony of the custody investigator, the court  



                                                                        

found that Forrest's parental relationship with the son continued "despite [Nickcole's]  



                      

best efforts."  



                                                                                                                                 

                    The court ordered that the summer visitation schedule be changed from an  



                                                                                                                                  

equally divided four weeks in Alaska and Arizona for both children to three weeks in  



                                                                                                                                      

Alaska, five weeks in Arizona, to accommodate "[the son's] other interests and needs."  



                                                                                                                              

The court "adopt[ed] all of the other recommendations by [the custody investigator] with  



                                                                                                                               

respect  to  how  the  parties  should  communicate  and  such."                                 It  did  not  address  the  



                                                                                                     

recommendation that Nickcole be given sole legal custody of her son.  



                                                                                                                 

                    At Nickcole's request the court repeated the custody order's requirements  



                                                                                                                            

for telephone contact.  It warned Forrest that Nickcole and their daughter were to "have  



                                                                                                                            

two calls a week and that's actual communication," or Forrest "could be subject to being  



                                           

held in contempt of court."  



                                                                                                                         

                    The court ordered the parties to brief the issue of Forrest's child support  



                                                                                                                               

obligation.   The court then issued written findings.   It found that Nickcole had not  



                                                                                                                                

demonstrated any change in circumstances with regard to their daughter, and that she had  



                                                                                                                       

not shown that Forrest and their daughter's new living situation with Forrest's girlfriend  



                                                            

and her family "had a negative impact on [the daughter]."  It also found that her claim  



                                                                                                                              

that Forrest's new work situation prevented him from spending sufficient time with their  



                                                                                      

daughter was "simply not supported by the evidence."  



                                                                                                                              

                    The court once more made no express changed circumstances finding with  



                                                                                                                                

regard to the son.  It instead dismissed Nickcole's claims about "the dissolution of the  



                                                                                                                           

relationship between [her son] and [Forrest]" as "the result of a concerted and highly  



                                                                                                            

cynical effort on the part of [Nickcole] to create that result."   The court ruled  that  



                                                                                                                            

Nickcole'sefforts notwithstanding, Forrest "still loves and cares about theboy and wants  



                                                                -6-                                                         7217
  


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

what is best for him." The court considered the introduction of Jeremy into the son's life                                                                                                                                                                                                         



to be an effort by Nickcole to "place one more obstacle between [her son] and [Forrest]."                                                                                                                                                                                                                        



                                               The   court repeated                                                  its revised visitation                                                      schedule for                                    the children                                   and  



restated its order that "[the daughter] is to have 2 uninterrupted phone calls per week                                                                                                                                                                                                    



with her mother."                                               "Legal and physical custody shall remain as previously set out," the                                                                                                                                                               



 court concluded.                                            



                                               The court then ruled that even though Forrest continued to share custody                                   



 of   the   son,   his   child   support   obligation   "effectively   ceased   when   he   acceded   to  



 [Jeremy's] intervention in this matter and [Jeremy's] request to have parental rights and                                                                                                                                                                                                       



 obligations imposed."                                                         



                                               Nickcole appeals.   



III.                    STANDARD OF REVIEW                                               



                                               "Wereviewatrialcourt'schildcustodymodificationdecision deferentially,                                                                                                                                            



reversing the decision only when the lower court abused its discretion or when its                                                                                                                                                                                                                  



                                                                                                                                                                                           3  

 controlling findings of fact were clearly erroneous."                                                                                                                                                                                                                    

                                                                                                                                                                                                    "The court's broad discretion  



                                                                                                                                                                                                                                                                                            

 extends to its determination whether, following an evidentiary hearing, the moving party  



                                                                                                                  

has proven a substantial change in circumstances, meaning one that affects the child's  

                                 4        "Abuse of discretion is established if the trial court considered improper  

welfare."                                                                                                                                                                                                                                                                    



 factors in making its custody determination, failed to consider statutorily mandated  

                                                                                                                                                                                                                                                                           



                        3                      Collier v. Harris                                             (Collier II), 377 P.3d 15, 20 (Alaska 2016) (quoting                                                                                                              



McLane v. Paul                                          , 189 P.3d 1039, 1042 (Alaska 2008)).                                                                        



                        4                     Id. (citing Heather W. v. Rudy R., 274 P.3d 478, 482 (Alaska 2012)).  

                                                                                                                                                                                                                                                                     



                                                                                                                                                  -7-                                                                                                                                        7217
  


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

                                                                                                                                                                                                                      5  

factors, or assigned disproportionate weight to particular factors while ignoring others."                                                                                                                                



                                                                                                                                                                                     6  

                                                                                                                                                                           

Certain events may amount to changed circumstances as a matter of law. 



                                  Trial courts similarly "have broad discretion in deciding whether to modify  

                                                                                                                                                                                                      



child support orders," and we will "review a trial court's determination of whether to  

                                                                                                                                                                                                                   

modify  child  support  for  an  abuse  of  discretion."7                                                                                 But  this  court  "independently  

                                                                                                                                                                                



review[s] whether the trial court has applied the correct legal standard in determining a  

                                                                                                                                                                                                                     

child support obligation."8  

                                   



IV.	             DISCUSSION  



                 A.	              The   Trial  Court   Did   Not   Abuse   Its   Discretion   In   Finding   No  

                                  Substantial   Change   In   Circumstances  Relating   To   The   Parties'  

                                 Daughter.  



                                 Nickcole argues that the superior court abused its discretion in finding that                                                                                                 



there was no substantial change in circumstances regarding their daughter. We disagree.                                                                                                           



                                 Alaska Statute 25.20.110(a) allows for modification of a custody order "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."     The   change   in  



                 5	              Id.  (quoting  Chesser-Witmer v.Chesser                                                          , 117P.3d 711,                      715 (Alaska2005)).   



                 6  

                                                                                                                                                                                             

                                 See Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (stating that a "custodial  

                                                                                                                                                                                        

parent's decision to move out of state [with the children] amounts to a [substantial]  

change in circumstances as a matter of law" (alteration in original) (quoting                                                                                                               Acevedo v.   

                                                                                          

Liberty, 956 P.2d 455, 457 (Alaska 1998))).  



                 7                Wilhour v. Wilhour, 308 P.3d 884, 887 (Alaska 2013) (citations omitted).  

                                                                                                                                                                                                 



                 8               Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (citing Beaudoin v.  

                                                                                                                                                                                                                   

Beaudoin, 24 P.3d 523, 526 (Alaska 2001)).  

                                                                                             



                                                                                                        -8-	                                                                                               7217
  


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

                                                                   9                                                         10  

circumstances    must    be    "substantial,"    "affect[]    the    child's    welfare,"                                         and    be  



"demonstrated relative to the facts and circumstances that existed at the time of the prior                                             

                                                                         11  When analyzing the child's best interests  

custody order that the party seeks to modify."                                                                                    

the court should look to "the statutory factors enumerated in AS 25.24.150(c)."12  

                                                                                                            



                      Of the changes that Nickcole alleged, the most significant were Forrest's  



new work schedule and family arrangements. Since the 2011 custody order, Forrest and  

                                                                                                                                          



his daughter had been living with his girlfriend and her large family.  He had also been  

                                                                                                                                        



working an evening shift from 2 p.m. to 10 p.m.   The daughter reportedly told the  

                                                                                                                                          



custody investigator that "she finds her dad preoccupied either . . . away at work or when  

                                                                                                                                       



he's in the home that he's busy preparing meals or doing things for the family."  

                                                                                                                                     



                      Butthetrialcourtwaswithin its discretion to find thesechanges insufficient  

                                                                                                                             



to warrant a modification of custody because they did not demonstrate any material  

                                                                                                                                  



negative impact on the child.  A substantial change in circumstances must be "one that  

                                                                                                                                         

                                                13    And  although  Forrest's  time  with  his  daughter  had  

affects  the  child's  welfare."                                                                                                         

                                 



decreased since 2011, Nickcole failed to show that this had resulted in any material  

                                                                                                                                  



disruption to what the custody investigator described as an otherwise stable existence in  

                                                                                                                                            



Ketchikan.   The custody investigator's recommendations and testimony support the  

                                                                                                                                          



court's finding that no substantial change in circumstances had occurred with regard to  

                                                                                                                                            



the daughter's welfare, despite the changes in Forrest's work hours and family life.  

                                                                                                                                           



           9          Collier  v.  Harris  (Collier  I),  261  P.3d  397,  403  (Alaska  2011).  



           10         Collier  II,  377  P.3d  at  20  (citing  Heather   W.,  274  P.3d  at  482).  



           11         Collier I, 261 P.3d at 403 (quoting  Peterson  v. Swarthout, 214  P.3d 332,  



340-41  (Alaska  2009)).  



           12         Collier  II,  377  P.3d  at  20  (quoting  Heather   W.,  274  P.3d  at  482-83).  



           13         Id.  



                                                                     -9-                                                              7217
  


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

                               Nickcole also argues that the court failed to account for her difficulty                                                                             



contacting her daughter. But the court admonished the parties to "communicate better,"                                                                                                   



warned Forrest that he could be held in contempt for failing to facilitate Nickcole's calls,                                                                                                  



and repeated its order that "[the girl] should have 2 uninterrupted phone calls per week                                                                                                      



with her mother."                          We have held that denial of telephone visits is "a serious issue," and                                                                                 



                                                                                                                                                                                                      14  

may constituteasignificant changeincircumstances justifying                                                                                   modificationofcustody.                                        



But we have also held that a court should not order a change in custody for violations of  

                                                                                                                                                                                                     

custody orders "until [it] has explored less intrusive means of obtaining compliance."15  

                                                                                                                                                                                                            



And we have stated that the appropriate response to a party's failure to abide by a court  

                                                                                                                                                                                             

order "is to seek an order directing the non-compliant party to comply."16                                                                                                         Although  

                                                                                                                                                                                   



Nickcole testified that she was only able to speak with her daughter once every two or  

                                                                                                                                                                                                     



three weeks, not the twice-weekly calls that the court ordered in 2011, the record does  

                                                                                                                                                                                               



not show that Nickcole ever filed a motion to compel Forrest's compliance. The superior  

                                                                                                                                                                                       



court was thus within its discretion to focus on enforcement of the present order rather  

                                                                                                                                                                                            



than address it through custody modification.  

                                                                           



                               Nickcole also claims that the court wrongfully analyzed the circumstances  

                                                                                                                                                                         



from the date of her previous motion, rather than from the 2011 custody order that she  

                                                                                                                                                                                                  

actually sought to modify.17   She points to the court's statement that her communication  

                                                                                                                                                                      



                14             Hunter  v.  Conwell,  276  P.3d  413,  421  (Alaska  2012).  



                15              Vachon  v.  Pugliese,  931  P.2d  371,  379  (Alaska   1996).  



                16              Collier  I,  261  P.3d  at  406  (quoting  Peterson,  214  P.3d  at  341  n.28).  



                17             See  Barrett  v.  Alguire ,  35  P.3d  1,  5-6  (Alaska  2001)  ("The  required  change  



in  circumstance   .   .   .  must  be  demonstrated  relative  to  the  facts  and  circumstances  that  

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

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



                                                                                                -10-                                                                                          7217
  


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

problems with Forrest were "nothing new," and contends that such a statement could                                                                                                                                                                                                                                                                                                                                                                          



refer only to her previous motions.                                                                                                                                                               



                                                                          But nothing in the context of the superior court's statement suggests that   



the court was not referring back to the 2011 order, and both parties had testified at the                                                                                                                                                                                                                                                                                                                                                                                  



 original   custody   trial   to   similar   communication   problems.    Although   in   its   written  



 findings the court did at times refer to Nickcole's previous motions to modify, we are                                                                                                                                                                                                                                                                                                                                                                                    



persuaded that this did not skew the court's analysis.                                                                                                                                                                                                                                                      The court analyzed Nickcole's                                                                                      



 alleged changes on their merits and concluded that Nickcole had not shown sufficient                                                                                                                                                                                                                                                                                                                                                  



negative   impact   on   her   daughter   to   warrant   modification   of   the   existing   custody  



 arrangement.   This analysis was grounded in the custody investigator's testimony, and                                                                                                                                                                                                                                                                                                                                                                                 



the court's decision was within its discretion.                                                                                                                                               



                                     B.	                                  The   Intervention   Of   The   Son's   Biological   Father   Amounted   To  

                                                                          Changed Circumstances As A Matter Of Law.                                                                                                                                                                                                         



                                                                         Nickcole argues that the superior court abused its discretion in failing to                                                                                                                                                                                                                                                                                                                             



 find that the circumstances underlying its original custody order for her son had changed.                                                                                                                                                                                                                                                                                                                                                                                                    



 She places special significance on the reappearance of her son's biological father and                                                                                                                                                                                                                                                                                                                                                                                



Forrest's diminished role in the son's life.                                                                                                                                                                                             



                                                                          The court did not make any findings about changed circumstances when                                                                                                                                                                                                                                                                                                               



it denied Nickcole's motion to modify her son's custody.   Instead it noted the changes                                                                                                                                                                                                                                                                                                                                    



 she alleged - the son's growing estrangement from Forrest and the intervention of                                                                                                                                                                                                                                                                                                                                                                                             



Jeremy - and discounted their significance by attributing them to "a concerted and                                                                                                                                                                                                                                                                                                                                                                                     



highly cynical effort on the part of [Nickcole]."                                                                                                                                                                                                                        



                                                                          We reverse this part of the superior court's order.                                                                                                                                                                                                                             Just as a parent's move                                                                            

                                                                                                                                                                                                                                                                                                                                                                                                                                       18 we hold  

 out of state with a child constitutes changed circumstances as a matter of law,                                                                                                                                                                                                                                                                                                                                                                                    



                                     18                                  Id. at 6 (citing Acevedo v. Liberty , 956 P.2d 455, 457 (Alaska 1998)).  

                                                                                                                                                                                                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                    -11-                                                                                                                                                                                                                          7217  


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

that the intervention of a previously absent biological parent is likewise a changed                                                                                  



circumstance that requires the court to weigh the child's best interests and fashion an                                                                                            



appropriate custody arrangement in light of the change.  We remand for the trial court   



to consider the son's best interests in light of Nickcole's motion to modify both his                                                                                             

physical and legal custody, which "deserve separate analysis."                                                                       19  



                                                                                                                                                                                  

              C.	           It Was Error To Terminate Forrest's Support Obligation While He  

                                                                 

                            Retained Legal Custody.  



                                                                                                                                                                             

                            Nickcole argues that the trial court erred in terminating Forrest's child  



                                                                                                                                                                          

support obligation to her son, andargues that even though Jeremy has intervened, Forrest  



                                                                                                                                                                                          

continues to have a support obligation because of his continuing legal custody of her son.  



                                                                                                                                                                                  

We agree with Nickcole and reverse the trial court's decision absolving Forrest of his  



                  

support obligation.  



                                                                                                                                                                              20  

                                                                                                                                                                                    

                             "A biological father's duty of support arises at the birth of his child."                                                                              A  



                                                                                                                                                                                     

stepparent,  meanwhile,  generally  does  not  acquire  a  support  obligation  toward  a  



                                                                                                                                  21  

                                                                                                           

stepchild purely by virtue of becoming his or her stepparent.                                                                                        

                                                                                                                                        Even stepparents who  



                                                                                                                                                                              

have acted as psychological parents during a marriage are generally not subject to post- 



                                                                                                                                                                       

marital child support obligations when the stepparent seeks to disestablish the parental  

relationship.22  



              19             Collier  II,  377  P.3d  at   15,  20.  



              20            Hubbard  v.  Hubbard,  44  P.3d   153,   156  (Alaska  2002).  



              21            See  Dewey  v.  Dewey,  886  P.2d  623,  625  (Alaska  1994)  ("At  common  law,  



a  stepparent-stepchild  relationship  imposes  no  obligations  and  confers  no  benefits  on  

either   the   stepparent   or   the   child."   (quoting  Burgess   v.  Burgess, 710   P.2d   417,   422  

(Alaska   1985))).  



              22            See Hubbard, 44 P.3d at 156 n.7 ("[R]equiring a non-biological father to  

                                                                                                                                                                                    

assume a post-divorce support obligation is unlikely to encourage a lasting bond between  

                                                                                                                                                                       

                                                                                                                                                            (continued...)  



                                                                                        -12-	                                                                                7217
  


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

                               ButForrest                 has notsought                    to disestablish hisparental                                  relationship to theson   



here. The trial court found that he has continued to act as the boy's psychological father,                                                                                                



 and Forrest has fought for and obtained continued physical and legal custody of the                                                                                                              



child. We have stated that those with legal custody of a child are obliged to support that                                                                                                       



child:   "It would be strange if a child's permanent legal custodian(s) did not have such                                                                                                      



 a duty, at least while they retained custody; otherwise a grant of custody to a nonparent                                                                                        

                                                                                                                                                                       23   Other courts  

would leave a child with no one in its home legally obliged to support it."                                                                                                                 

too have noted the connection between custody of a child and the obligation to support.24  

                                                                                                                                                                                    



                               Because Forrest remains the psychological father of the son, and because  

                                                                                                                                                                                        



he retains legal custody, he also retains a support obligation - the intervention of the  

                                                                                                                                                                                                   



 son's biological father notwithstanding.  We therefore reverse the trial court's decision.  

                                                                                                                                                                                                            



But we note that Forrest's custody arrangement may change on remand with the superior  

                                                                                                                                                                                       



court's analysis of the best interests factors under AS 25.24.150, and that determination  

                                                                                                                                                                          



may affect Forrest's support obligation.  

                                                                    



                22              (...continued)  



                                                                                                                                                                  

the non-biological father and the child."); B.E.B. v. R.L.B., 979 P.2d 514, 520 (Alaska  

                                                                                                                                                                                        

 1999)  (holding  that  "the  risk  of  emotional  harm  inherent  in  severing  a  child's  

                                                                                                                                                                                                   

relationship with a psychological parent cannot itself suffice as a basis for invoking the  

                                                         

doctrine of paternity by estoppel").  



                23              C.R.B. v. C.C., 959P.2d375, 385 n.24(Alaska1998) (disapproved on other  

                                                                                                                                                                                               

grounds by Evans, 88 P.3d at 1085).  

                                                                       



                24             See Stein v. Stein, 831 S.W.2d 684, 689 (Mo. App. 1992) (noting that a  

                                                                                                                                                                                                       

"[h]usband was obligated to support [the] child as long as he retained legal custody");  

                            

A.S. v. I.S., 130 A.3d 763, 765 (Pa. 2015) ("[W]hen a stepparent takes affirmative legal  

                                                                                                                                                                                               

 steps to assume the same parental rights as a biological parent, the stepparent likewise  

                                                                                                          

 assumes parental obligations, such as the payment of child support."); In re Marriage of  

                                                                                                                                                                                                      

Farrell, 835 P.2d 267, 271 (Wash. App. 1992) (holding that a stepparent's support  

                                                                                                                                                                                        

obligation terminated once "the stepparent is no longer 'custodial' ").  

                                                                                                                                                             



                                                                                                -13-                                                                                          7217
  


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

V.               CONCLUSION  



                                  We AFFIRM the trial court's denial of Nickcole's motion with regard to                               



the parties' daughter.  We REVERSE its ruling as to the son's changed circumstances   



and REMAND so it can conduct a best-interests analysis.                                                                                            We also REVERSE the trial                                      



court's   absolution   of   Forrest's   support   obligation,   and   REMAND   for   proceedings  



consistent with this opinion.                       



                                                                                                               -14-                                                                                            7217
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC