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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jayda Roman v. Cleveland Karren (4/17/2020) sp-7441
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JAYDA ROMAN, )
) Supreme Court No. S-17310
Appellant, )
) Superior Court No. 3AN-15-06949 CI
v. )
) O P I N I O N
CLEVELAND KARREN, )
) No. 7441 - April 17, 2020
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Andrew Guidi, Judge.
Appearances: Bradly A. Carlson, Law Office of Bradly A.
Carlson, Anchorage, for Appellant. Rhonda F. Butterfield
and Douglas M. Ryan, Wyatt & Butterfield LLC, Anchorage,
for Appellee.
Before: Winfree, Stowers, Maassen, and Carney, Justices.
[Bolger, Chief Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
A mother appeals the superior court's child custody order, arguing that the
court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction
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1
and Enforcement Act (UCCJEA) or that it abused its discretion by failing to decline
UCCJEA jurisdiction on inconvenient forum grounds. She also contends that the court
gave disproportionate weight to the custody investigator's trial testimony and, under the
statutory custody factors, to maintaining the father-daughter relationship.
We conclude that the superior court had UCCJEA jurisdiction because
Alaska was the child's home state when the proceeding commenced; we also conclude
that the court properly weighed the statutory inconvenient forum factors and did not
abuse its discretion when it determined that deciding custody in Alaska was most
practical. And because the court has broad discretion in making a custody determination
- including the weight to give a custody investigator's testimony - we conclude the
court did not abuse its discretion when weighing either testimony or statutory custody
factors. As detailed below, first addressing the relevant facts and proceedings regarding
the UCCJEA jurisdictional determination and then the relevant facts and proceedings
regarding the custody determination, we affirm the superior court's child custody order.
II. UCCJEA ISSUES
A. Facts And Proceedings
Cleveland Karren and Jayda Roman have a daughter, who was born in
March 2012 in Washington, D.C. Jayda and the daughter moved in July to Mount
Vernon, Washington, to live with Jayda's parents. The family moved to Anchorage in
April 2013. Cleveland later took a job at Joint Base Lewis-McChord; he moved to
Washington in April 2014, and Jayda remained in Anchorage with the daughter. In May
2015 Cleveland took a different job and moved to Washington, D.C.
1
The UCCJEA is codified at AS 25.30.300-.910.
-2- 7441
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1. May 2015 petition for marriage dissolution
Jayda filed the parties' marital dissolution petition in Anchorage in May
2
2015.
The daughter's prior residences were listed as Washington, D.C. from birth until
July 2012; Mount Vernon from July 2012 until April 2013; and Anchorage from April
2013 to the dissolution petition's date.
In July a magistrate judge held a marriage dissolution hearing. Jayda and
Cleveland appeared telephonically, and they each notified the court of their moves
outside of Alaska. Jayda testified that she and the daughter were living in Washington.
Cleveland initially requested that child support issues be transferred to a Washington
court. Jayda responded that she and their daughter were "still Alaska residents." Jayda's
attorney interjected that Jayda still was an Alaska resident, that Jayda had filed the
dissolution petition prior to moving outside of Alaska, and that Jayda had physically
removed herself and the daughter from Alaska only a month or two before.
Jayda and Cleveland testified that they both had "live[d] in Alaska six
continuous months out of the past six years." The magistrate judge made an oral finding
that the Alaska superior court had subject matter jurisdiction, but Jayda and Cleveland
then could not agree on custody and child support. The superior court subsequently
converted the dissolution proceeding into a divorce proceeding, directed Jayda to file a
complaint, and scheduled a November status conference.
2. Subsequent proceedings
At theNovember hearing, Jayda's counselnotifiedthecourtthatCleveland,
who was self-represented, was living in Washington, D.C. but that his hearing notice had
been mailed to a previous address in a state where he no longer lived. Cleveland did not
2
AS 25.24.200(a) ("A husband and wife together may petition the superior
court for the dissolution of their marriage.").
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appear, and the court could not reach him by telephone. Jayda testified that she had been
living in Washington but had moved back to Alaska "because of jurisdiction" and
because she believed she and the daughter were "better off" in Alaska. Jayda clarified
that she had left Alaska for five-and-a-half months, returned in September, and intended
to remain.
The court finalized the divorce, granted Jayda primary physical and sole
legal custody of the daughter, and issued an order setting Cleveland's child support
obligation. Cleveland almost immediately thereafter notified the court that he had not
received proper notice of the hearing or what it was for, and he asked the court to set
aside its orders. The court later granted Cleveland's request, under Alaska Civil
Rule 60(b)(4). 3
In June 2016 Jayda filed - in the same case - a divorce complaint. Jayda
alleged, and Cleveland admitted in his answer, that she and the daughter were Alaska
residents and that the Alaska superior court had subject matter jurisdiction. In August
Jayda filed a notice that she had "accepted a job . . . while traveling on summer vacation
with her daughter. It will start mid[-]August" in Spokane, Washington. Jayda noted that
although her new address was in Spokane, "the child is still subject to Alaska jurisdiction
under the [UCCJEA]."
At a February 2018 trial setting conference, Jayda sought to transfer the
case to Washington, testifying that she had moved there in August 2016 and that she and
3 Rule 60(b)(4) provides that a party may move for relief from a "final
judgment, order, or proceeding" if the judgment is void. A judgment may be void if "the
defendant was not given proper notice of the action and opportunity to be heard." Heber
v. Heber, 330 P.3d 926, 930 (Alaska 2014) (quoting Leisnoi, Inc. v. Merdes & Merdes,
P.C., 307 P.3d 879, 891 (Alaska 2013)).
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----------------------- Page 5-----------------------
the daughter had resided there continuously for the previous 18 months. The superior
court bifurcated the divorce and custody issues and set trial for both.
3. April 2018 UCCJEA conference
At some point Jayda filed a custody petition in Washington; in April the
superior court held a custody jurisdiction conference with the Washington court.
Cleveland argued that the Alaska court retained jurisdiction and that Jayda had alleged
in her divorce complaint that she and the daughter were Alaska residents as of June 2016.
Cleveland contended that Jayda was forum shopping because she did not like recent
events in the Alaska proceedings.
Jayda's Washington-based attorney asserted that Jayda and the daughter
had moved to Washington in June 2016 and that jurisdiction now was proper only in
Washington. Acknowledging that Alaska was the daughter's home state initially in
2015, Jayda's Washington attorney conceded the court's initial jurisdiction to enter its
November 2015 determination. But Jayda's attorney asserted that "when the Alaska
court vacated all of its orders related to the parenting of the child, and the child left the
state and established residence in Washington, jurisdiction [became] only proper in the
child's home state" of Washington. Jayda's Alaska-based attorney argued that "Alaska
[was]nowfunctionallyan inconvenient forum"becausethewitnesses andevidencewere
in Washington and "[n]obody [would be] coming up here [to Alaska] to try the case."
The Washington court believed both Alaska and Washington could be
considered the daughter's home state under the UCCJEA, and Alaska could retain
exclusive, continuing jurisdiction unless the parties no longer resided in Alaska and the
court did not want to retain jurisdiction. Focusing primarily on the inconvenient forum
factors, the Washington court noted that the Alaska court was familiar with the case and
had a custody trial scheduled the following month. Although Jayda wanted to finalize
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the divorce in Alaska and litigate custody in Washington, the Washington court thought
that parallel proceedings could burden the parties with significant attorney's fees.
The superior court considered the statutory inconvenient forum factors, 4
explaining that the litigation was "right on the cusp of [a] decision" and that it would be
unwise to "pull up the stakes and defer a decision for" nearly a year and spend additional
money obtaining new attorneys in Washington. And noting "an assumption that once
you have initial jurisdiction, you take it to the conclusion and reach a decision," the court
was "persuaded that the [c]ourt has initial jurisdiction and continuing jurisdiction." The
court decided that it would retain jurisdiction because of the "substantial amount of
litigation" already completed and the upcoming custody trial. The Washington court
subsequently dismissed Jayda's custody action.
4. Divorce decree, custody orders
The superior court issued a divorce decree in May 2018. The court found
that Jayda and the daughter had been residents of "the State of Alaska for at least six
months prior to the filing of the divorce complaint." Following a separate custody trial,
the court awarded primary physical custody to Cleveland with visitation to Jayda.
5. Appeal
Jayda appeals, arguing that the court lacked subject matter jurisdiction
under the UCCJEA or abused its discretion by failing to decline UCCJEA jurisdiction
on inconvenient forum grounds.
4 See infra note 20 and accompanying text.
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B. Standard Of Review
5
Subject matter jurisdiction is a question of law that we review de novo.
6
The issue of subject matter jurisdiction "may be raised at any time during litigation."
Subject matter jurisdiction cannot be waived, because a court without jurisdiction is
7
without power to decide the case. We review a superior court's decision to exercise or
8
decline jurisdiction based on inconvenient forum for abuse of discretion. A superior
court abuses its discretion by making a decision that is arbitrary, capricious, or
9
manifestly unreasonable or that stems from an improper motive.
C. Discussion
1. Superior court's initial jurisdiction
The UCCJEA limits a court's jurisdiction in custody matters to promote
10
uniformity among courts in different states. The superior court has three ways to assert
11
home state jurisdiction to make an initial child custody determination. First, the court
has jurisdiction if Alaska was "the home state of the child on the date of the
5 B.J. v. J.D., 950 P.2d 113, 115 (Alaska 1997); see also Steven D. v. Nicole
J., 308 P.3d 875, 879 (Alaska 2013) (applying de novo jurisdiction review under
UCCJEA).
6 B.J., 950 P.2d at 115 (quoting O'Link v. O'Link, 632 P.2d 225, 226 n.2
(Alaska 1981)).
7 Wanamaker v. Scott, 788 P.2d 712, 713 n.2 (Alaska 1990).
8 Steven D., 308 P.3d at 879.
9 Sharpe v. Sharpe, 366 P.3d 66, 68 (Alaska 2016).
10 Atkins v. Vigil, 59 P.3d 255, 257 (Alaska 2002).
11 AS 25.30.300(a); see Norris v. Norris, 345 P.3d 924, 928-29 (Alaska 2015)
(discussing three relevant ways court can gain jurisdiction).
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12
commencement of the proceeding." Second, the court has jurisdiction if Alaska "was
the home state of the child within six months before the commencement of the
proceeding and the child is absent from this state but a parent . . . continues to live in this
13 Third, the court may have jurisdiction when no other state has jurisdiction under
state."
the first two provisions if the child and at least one parent have a significant connection
to the state and substantial evidence relevant to the child's care is located in the state.14
Jayda acknowledges that when she filed the May 2015 dissolution petition,
the daughter "lived in Alaska with Jayda and Cleveland lived in Washington." But Jayda
argues that once the court vacated the November 2015 child custody and support orders,
her June 2016 divorce complaint commenced a new proceeding under the UCCJEA, and
she contends that the court was required to reconsider child custody jurisdiction as of that
date. Jayda argues that because she and the daughter then were in Washington and
Cleveland was in Washington, D.C., the Alaska court no longer had subject matter
15 Cleveland counters that the
jurisdiction to make an initial custody determination.
12 AS 25.30.300(a)(1); see AS 25.30.909(7) (defining "home state" as "the
state in which a child lived with a parent . . . for at least six consecutive months,
including any temporary absences of the child or parent . . . , immediately before the
commencement of a child custody proceeding").
13 AS 25.30.300(a)(2).
14 AS 25.30.300(a)(3).
15 Jayda alternatively argues that even if the superior court had initial child
custody jurisdiction, it did not have exclusive, continuing jurisdiction once the parties
left Alaska. Alaska Statute 25.30.310 provides that once an Alaska court has made a
child custody determination consistent with initial child custody jurisdiction, it "has
exclusive, continuing jurisdiction" over that determination except under certain
circumstances. This statute relates to the court's authority after it makes an initial child
custody determination. AS 25.30.310; see also AS 25.30.320. But the court's
(continued...)
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record shows Alaska was the daughter's home state when Jayda filed the June 2016
divorce complaint and that the court properly made the initial child custody
determination.
The parties misidentify the relevant date for determining the daughter's
home state. The UCCJEA defines a child custody proceeding as one in which "legal
custody, physical custody, or visitation with respect to a child is an issue," including
16 Jurisdiction therefore attached if the daughter had
divorce or separation proceedings.
lived in Alaska for at least six consecutive months, including any temporary absences,
immediately before the May 2015 dissolution proceeding commenced.17 The original
dissolution proceeding was never closed, it simply was converted into a divorce
proceeding. The case continued with the same parties, case number, judge, and trial
record. The child custody proceeding therefore commenced in May 2015 when Jayda
sought to dissolve the marriage and first raised the child custody issue.
The parents stated in the dissolution petition that the daughter had resided
uninterrupted in Alaska since 2013. In July 2015 Jayda testified that she and the
daughter were Alaska residents and had lived in Alaska for six consecutive months in the
past six years. In November 2015 Jayda testified that she had been in Washington for
15 (...continued)
jurisdiction to enforce or modify the child custody order is not at issue in this case.
Jayda instead challenges the court's jurisdiction to make the initial child custody
determination, which we review under the relevant statute, AS 25.30.300.
16 AS 25.30.909(4); see also Atkins v. Vigil, 59 P.3d 255, 257 (Alaska 2002)
(noting that under UCCJEA "[a] child's home state is determined at the time an action
commences").
17 See AS 25.30.300(a)(1); AS 25.30.909(7). The superior court also appears
to have considered May 2015 the date the proceeding commenced, noting Jayda
"retained local counsel and initiated the present action in Anchorage in 2015."
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----------------------- Page 10-----------------------
less than six months before moving back to Alaska and that she intended to remain in
Alaska. The record thus demonstrates that Alaska was the daughter's home state when
Jayda filed the dissolution petition in May 2015, and the superior court had initial
jurisdiction under AS 25.30.300. Issuing, and later vacating, the November 2015 child
custody order did not eviscerate the court's UCCJEA jurisdiction to issue the initial child
custody order in the continuing proceedings.
2. Superior court's exercise of discretion
Alaska's inconvenient forum statute for child custody determinations
provides: "A court of this state that has jurisdiction . . . may decline to exercise its
jurisdiction at any time if it determines that it is an inconvenient forum under the
18
circumstances and that a court of another state is a more appropriate forum." This
19 A court with initial child custody jurisdiction may
provision notably is discretionary.
find that it is an inconvenient forum and transfer the case after considering "all relevant
factors."20 The full list of factors includes:
(1) whether domestic violence has occurred and is likely to
continue in the future and which state could best protect the
parties and the child;
(2) the length of time the child has resided outside this state;
(3) the distance between the court in this state and the court
in the state that would assume jurisdiction;
(4) the relative financial circumstances of the parties;
18 AS 25.30.360(a).
19 See Steven D. v. Nicole J. , 308 P.3d 875, 879 (Alaska 2013) ("A superior
court's decision to decline, or to refuse to decline, jurisdiction as an inconvenient forum
is reviewed for abuse of discretion.").
20 AS 25.30.360(b).
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(5) an agreement of the parties as to which state should
assume jurisdiction;
(6) the nature and location of the evidence required to resolve
the pending litigation, including testimony of the child;
(7) the ability of the court of each state to decide the issue
expeditiously and the procedures necessary to present the
evidence; and
(8) the familiarity of the court of each state with the facts and
issues in the pending litigation. [21]
Jayda contends that the superior court abused its discretion by failing to
decline jurisdiction based on inconvenient forum grounds. Jayda argues that the court
"placed too much emphasis on the cost of litigation and on anticipated judicial efficiency
and not [on] what forum was in the best position to decide [the daughter's] best interest."
Cleveland counters that at the UCCJEA hearing the court properly weighed the relevant
inconvenient forum factors and discussed them with the Washington court and the
parties' attorneys.
When deciding whether to decline jurisdiction on inconvenient forum
grounds, the superior court is not required to make a best interests analysis.22 But a court
21 AS 25.30.360(b).
22
Mikesell v. Waterman, 197 P.3d 184, 191 (Alaska 2008) (holding under
UCCJEA that "the superior court was not required to make a best interests analysis in
deciding whether to decline jurisdiction" because UCCJEA, unlike its precursor,
removed child's best interestsas factor in both inconvenientforumand initialjurisdiction
questions).
Jayda relies on Szmyd v. Szmyd for her assertion that the superior court
abused its discretion by denying her inconvenient forum motion. 641 P.2d 14 (Alaska
1982). We held in Szmyd that the superior court abused its discretion by declining to
dismiss that case when the mother and child had moved to California and Alaska was an
inconvenient forum. Id. at 15-16, 21-22. But the relevant statutory factors were from
(continued...)
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denying an inconvenient forum motion must provide a statement of reasons for its
ruling.23
The superior court carefully considered whether Alaska was an
inconvenient forum. There was extensive discussion about the length of time the
daughter, as well as her parents, had been outside Alaska. There was no dispute that the
parties no longer were Alaska residents. But the court explained that the parties'
attorneys, who had done substantial work, were not licensed in Washington. The court
had appointed a Washington-based custody investigator, who, along with most of the
witnesses outside Alaska, could testify telephonically. The court reasoned that
transferring the case would cause an approximately one-year delay for the parties to
obtain Washington attorneys and a new court to become familiar with the issues. The
court ultimately concluded that the inconvenient forum analysis was a "balancing act"
weighing in favor of it retaining jurisdiction because of the "substantial amount of
litigation in this case" and the trial scheduled for the following month.
We already have concluded that the superior court properly determined it
had initial child custody jurisdiction. When deciding whether Alaska was an
inconvenient forum, the court considered all statutory factors. Our role is not to
22 (...continued)
the UCCJEA's precursor, id. at 15-20, focusing on the "child's best interests"; the
UCCJEA removed that consideration. UCCJEA § 201 cmt. 2.
23 Szmyd, 641 P.2d at 19 ("We are requiring the statement of reasons as an aid
to the parties in understanding the trial court's decision and as an aid to this court in
carrying out its review function."); see also Steven D., 308 P.3d at 884 (holding that
although Szmyd was based on UCCJEA's predecessor, requirement that court articulate
reasoning for denying inconvenient forum motion remains good law).
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substitute our judgment for the court's discretionary decision; the superior court's
reasoning was not clearly unreasonable, and we therefore see no abuse of discretion. 24
III. CUSTODY ISSUES
A. Relevant Facts And Proceedings
1. Background
The family moved to Anchorage in 2013 and lived there together for about
a year. Cleveland subsequently took a job in Washington and lived there for about a
year, while Jayda remained in Anchorage with the daughter. Cleveland was located
about a two-hour drive from Jayda's parents; he saw the daughter occasionally when she
visited Jayda's parents. In May 2015 Cleveland took a different job and moved to
Washington, D.C.
About the time Cleveland moved to Washington, D.C., Jayda began a new
relationship; she and the daughter later moved in with Richard C. and his children. The
daughter began referring to Richard as "Dad," greatly upsetting Cleveland. Jayda
believed the daughter was only imitating Richard's children, but Jayda did not
discourage this practice. Jayda and Cleveland agreed that he would have video calls with
the daughter three times weekly. They soon began arguing over the calls. Cleveland
later testified that Jayda would exercise "pure whim" to deny his call if he were one
minute too early or too late and that when he worked overseas she would not
accommodate his schedule. Jayda later testified that Cleveland became hostile,
disparaging her and Richard.
Cleveland had only one in-person visit with the daughter in 2015, for a
week in the summer. Plans were made for the daughter to visit Cleveland in August for
24 Rice v. McDonald , 390 P.3d 1133, 1137 (Alaska 2017) (noting we will
overturn discretionary inconvenient forumruling if reasons for exercise of discretion are
clearly untenable or unreasonable).
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two or three weeks in Washington, D.C., and he requested her medical records to enroll
her in daycare. Jayda refused to provide the records and later canceled the visit.
Jayda invited Cleveland to have supervised visits with the daughter during
her birthday week in March 2016. But they began arguing about the timing of the visits,
and Cleveland ultimately canceled the visits. In May Cleveland had a visit while the
daughter was staying for a week with Jayda's parents in Washington. Cleveland later
testified that Jayda would not allow him overnight visits; he picked up the daughter in
the morning, spent the day with her, then returned her to Jayda's parents in the evening.
Cleveland later testified that, following a court decision adverse to Jayda,
she reduced his video calls with the daughter from three to two weekly. They continued
arguing about the calls. Jayda later testified that Cleveland would argue with her about
any schedule change, that it was hard to accommodate the calls because of her busy life
with Richard and his children, and that calls frequently took place while the daughter was
in a grocery store, car, or restaurant.
In summer 2017 Jayda flew with the daughter to Washington, D.C. so that
Cleveland could have a visit for just over a week Cleveland later testified about events
when he met them at the airport: Jayda asked to inspect his car and car seat, but he had
taken public transportation; Jayda also asked to inspect his home, and when he refused
she taunted him in front of the daughter.
2. Custody investigator report
Thesuperiorcourtappointed Washington-basedcustodyinvestigatorKaren
25
Schweigert to complete an investigation and make a placement recommendation.
Schweigert issued her report in December 2017. Schweigert noted that both parents had
25 See Alaska R. Civ. P. 90.6(a) (authorizing court to appoint expert to
investigate custody, access, and visitation issues and provide independent opinion
concerning child's best interests).
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"engaged in behaviors that have not been in [their daughter's] emotional best interests."
Schweigertfocusedprimarily on Jayda's attemptsto undermineCleveland'srelationship
with the daughter, noting: "The issue of [the daughter] calling [Richard] 'daddy'
continues to be a significant source of conflict between the households - and [she] is
suffering because neither side is willing to make her comfort more of a priority than the
ego of the adults/battle between the adults over this designation."
Schweigert recommended that Jayda have primary physical custody of the
daughter but that the parties share legal custody. Schweigert expressed concern that if
Jayda secured sole legal custody, she would exclude Cleveland from the daughter's life.
Schweigert further recommended that the court make a finding that Jayda and Richard
had interfered with the daughter's relationship with Cleveland and order parenting
restrictions on Jayda for her "abusive use of conflict." Schweigert emphasized the
damage Jayda's conflict with Cleveland was causing: "If [Jayda] does not comply with
restrictions or otherwise continues to engage in acts (or permit [Richard] to engage in
acts) that interfere with [Cleveland's] parental relationship . . . , a change in primary
placement may be the only way to preserve and protect [the daughter's] relationship with
[Cleveland]." Schweigert did not believe that a placement change was in the daughter's
best interests at that point because Jayda was the daughter's primary attachment figure
and had improved her behavior in response to the litigation process.
Schweigert also mentioned allegations that Jayda once had punched a wall
and occasionally had thrown items, such as plates, during arguments with Cleveland.
Relying on these allegations, Cleveland subsequently notified the superior court that
26
Jayda was subject to a domestic violence presumption against obtaining custody.
26 See AS 25.24.150(g)-(j) (establishing rebuttable presumption against
awarding custody to parent with history of perpetrating domestic violence against other
(continued...)
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3. Subsequent events
a. Spring break visit
Cleveland obtained an order to have a spring break visit in April 2018 in
Washington. The superior court authorized Jayda "the same schedule of Skype/phone
visits" twice weekly with the daughter as Cleveland had when she was in Jayda's
custody. The court prohibited Richard from being present at exchanges or having
contact with Cleveland. During the visit the daughter had contact with Jayda almost
daily. Cleveland later testified about calls being unreasonably lengthy and Jayda
focusing on "missing" their daughter, saying, "I have no control over this," and "[I]t's
your dad, [and] [y]ou have to be there." Despite the order that Richard not have contact,
Cleveland saw Richard filming video calls between the daughter and Jayda.
b. Divorce decree; summer visit
The superior court issued a divorce decree in May 2018, scheduling a
separate custody trial for September. The court meanwhile ordered that Cleveland have
summer visitation with the daughter. Jayda gave the daughter an iPad and a cell phone
to use during the visit. Cleveland later testified that Jayda's calls and text messages
became excessive. He said that Jayda would include Richard or her mother in a
three-way call; if the daughter appeared upset, Jayda would say: "We didn't want you
to come, but the [c]ourt's making us. You need to be brave [and] strong."
c. Supplemental custody investigator report
Schweigert submitted a supplemental report in August 2018, updating the
superior court following the spring and summer visits. Schweigert reported that Jayda
had refused to provide Cleveland the daughter's medical records because "he might use
26 (...continued)
parent and limiting visitation upon domestic violence finding).
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that information to keep [her]" and that Jayda was allowing the daughter to use Jayda's
maiden name rather than her legal paternal name. Schweigert reported that Jayda also
admitted Richard's involvement in video calls during the daughter's summer visit with
Cleveland.
Schweigert reported statements by the daughter's counselor that the
counselor "spends a considerable amount of time trying to manage [Jayda's] anxiety"
and that the counselor felt it was inappropriate for Jayda to provide a cell phone and
unlimited text messaging because it was undermining Cleveland's relationship with the
daughter. Schweigert also noted the counselor's recommendations that "if [Jayda]
remains the primary custodial parent, [she] will need ongoing individual counseling to
help her co-parent effectively" and that Cleveland "may need individual counseling to
address his hostility."
4. Custody trial
The superior court held a custody trial in September and October 2018.
Testimony of Jayda, Cleveland, and Schweigert is summarized as follows.
a. Jayda
Jayda testified that Cleveland was not present in their lives when the
daughter was first born because he was "career-driven." Jayda said she was doing the
"best" she could to facilitate the relationship between Cleveland and the daughter,
although she admitted she frequently held video calls between them in areas that could
be distracting. Jayda also acknowledged allowing the daughter to call Richard "Dad."
Jayda believed that she had "changed" over the course of the litigation and that she
exhibited better behavior toward Cleveland.
b. Cleveland
Cleveland testified about his efforts to maintain a relationship with the
daughter, despite Jayda's preventing his weekly phone calls. He testified that if the court
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granted him primary physical custody, he had arrangements for her to move to
Washington, D.C., he would "encourage having her mother involved," and he would be
"totally happy with her mother having full summers" and regular weekly calls.
Cleveland acknowledged that "some of [Jayda's] most aggressive behavior ha[d]
stopped" but said that she still prevented him from having a relationship with the
daughter.
c. Custody investigator
Schweigert testified that since her December 2017 report, she had become
more concerned about Jayda retaining custody of the daughter. Schweigert held the
opinion that Cleveland should have custody. Although Schweigert criticized some of
Cleveland'sbehavior, shewasmuch moreconcerned about Jayda's conduct. Schweigert
believed Jayda's behavior was "as good as the behavior is going to be." Schweigert
noted her discussion with the daughter's counselor, who felt Jayda would require
counseling to modify her behavior but believed change was unlikely.
Schweigert further testified that Richard's "involvement has been a
significant catalyst for problems between the households." Schweigert believed that
Jayda's involving Richard "seemed designed to antagonize [Cleveland] and to also try
to escalate things." Schweigert "didn't find credible" Jayda's explanation of why she
would not disclose the daughter's medical records to Cleveland. Schweigert found it
disconcerting that, despite having withheld the medical records, Jayda criticized
Cleveland's parenting skills when the daughter's eczema flared up while in his care.
Schweigert described the status of Jayda's attempts to alienate the daughter
from Cleveland: "[The daughter] is not yet successfully alienated. She still wants to
spend time with her father. She enjoys her time with her father, but she seems to be
becoming more visitation-resistant, which is a huge red flag." Schweigert believed that
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if the daughter's "relationship with her father is going to be preserved and protected,
[there isn't] another alternative except for [the daughter] being placed with [Cleveland]."
Schweigert said she had observed nothing indicating Cleveland would not
be a successful, full-time father. Schweigert observed that the daughter was
"appropriately attached to" Cleveland despite the limited time the two had spent together
and that he historically was "very good about facilitating communication between" the
daughter and Jayda.
5. Superior court's findings
The superior court made oral findings at the trial's conclusion. The court
focused on Schweigert's testimony, noting its agreement with Schweigert's opinion that
placing the daughter with Cleveland was necessary to protect the father-daughter
relationship: "[T]he prime . . . factor in the custody investigator's decision was her lack
. . . of any real confidence that [Jayda] could be trusted to protect the relationship
between the child and [Cleveland]. I think that's what it comes down to."
The court ultimately concluded that "primary custody with [Cleveland] is
a much safer bet for the continued preservation of the child's relationship with [Jayda]
than primary custody with [Jayda] would be for the continued preservation of the child's
relationship with [Cleveland]." The court noted that Jayda "had a significant number of
opportunities to prove that she could protect that relationship and promote it, and she's
not been able to do that." Noting that the daughter had "been almost exclusively with
one parent for the first" 90% of her life but that she was "entitled to have a relationship
with her mom and with her dad," the court awarded primary physical custody to
Cleveland with visitation to Jayda. The court awarded joint legal custody, with tie-
breaking authority to Cleveland if the parents could not agree on a legal custody issue.
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6. Written order
The superior court later issued written findings of fact and conclusions of
27
law addressing the statutory factors and the daughter's best interests.
Regarding factors (1) and (2), the court said there was "no evidence that the
child has any special needs" and found that the parents equally had the "desire and
27 AS 25.24.150(c) provides:
In determining the best interests of the child the court shall
consider
(1) the physical, emotional, mental, religious, and social
needs of the child;
(2) the capability and desire of each parent to meet these
needs;
(3) the child's preference if the child is of sufficient age and
capacity to form a preference;
(4) the love and affection existing between the child and each
parent;
(5) the length of time the child has lived in a stable,
satisfactory environment and the desirability of maintaining
continuity;
(6) the willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
other parent and the child . . . ;
(7) any evidence of domestic violence, child abuse, or child
neglect in the proposed custodial household or a history of
violence between the parents;
(8) evidence that substance abuse by either parent or other
members of the household directly affects the emotional or
physical well-being of the child . . . ; and
(9) other factors that the court views pertinent.
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capability of meeting the child's needs." Regarding factor (3), the court found that the
daughter was then only six years of age and her preference "[wa]s not a relevant factor."
Regarding factor (4), the court found that "love and affection exists between the child
and each of her parents in quantities that cannot be meaningfully distinguished."
Regarding factor (7), the court found insufficient evidence to establish that Jayda had
committed a crime of domestic violence. Regarding factor (8), the court found that no
evidence was presented by either party about substance abuse, child abuse, or neglect in
either household.
The court reasoned that the determinative custody factors were factor (5),
"the length of time the child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity," and factor (6), "the willingness and ability of
each parent to facilitate and encourage a close and continuing relationship between the
other parent and the child." Noting Schweigert's lack of confidence that Jayda could
protect the daughter's relationship with Cleveland, the court detailed the evidence
presented at trial and cited the custody investigator's testimony that she could "not think
of anything else this court could do, or put into place, to protect the father's relationship
if the mother had primary physical custody of the child."
The court believed Jayda would continue to undermine Cleveland's
relationship with the daughter, eventually forcing the parties to litigate "all over from
scratch" in a new state court. The court noted that Jayda had engaged in these behaviors
even with the court supervising the litigation, indicating that: (1) Jayda "completely
lacks awareness of how her behaviors undermine [the daughter's] relationship with
[Cleveland]" and (2) "there is no reason to expect [Jayda's] behavior to improve when
the court is no longer actively monitoring it." The court concluded that the daughter "is
entitled to a strong and healthy relationship with both" parents and that it could not "in
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good conscience ignore the significant evidence of [Jayda's] interference in the
relationship . . . , the loss of which would imperil the daughter's future happiness."
7. Appeal
Jayda appeals, contending that the court gave disproportionate weight to
the custody investigator's trial testimony and to maintaining the father-daughter
relationship under the statutory custody factors.
B. Standard Of Review
"The trial court has broad discretion in child custody decisions. A trial
court's determination of custody will be set aside only if the entire record demonstrates
that the controlling findings of fact are clearly erroneous or that the trial court abused its
28
discretion."
"Abuse of discretion is established if the trial court considered improper
factors in making its custody determination, failed to consider statutorily mandated
29
factors, or assigneddisproportionateweight to particular factors whileignoringothers."
C. Discussion
Jayda contends that the superior court erred by giving too much weight to
Schweigert's testimonyand that Schweigert'stestimony was inconsistentwithherearlier
report. Jayda also contends that the court misapplied the best interests factors by failing
to give proper weight to the length of time the daughter lived in "a stable, satisfactory
environment[,] and the desirability of maintaining continuity" and by failing to consider
28 Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002) (footnote
omitted).
29 Id. (citing Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982)).
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the impact of removing Jayda, whom the daughter had lived with since birth, from the
30
daughter's life.
Cleveland counters that the superior court appropriately focused on the
determinative factors in this case. He contends that the record supports the court's
decision that placing the daughter with him was necessary to maintain the father-
daughter relationship.
1. Consistency and weight of Schweigert's recommendation
Schweigert recommended in her December 2017 report that Jayda be
awarded primary physical custody. Schweigert at that time did "not believe a change in
placement would serve [the daughter's] best interests" because Jayda was the "primary
attachment figure; [Jayda] ha[d] shown significant improvement in her behavior and
conduct as a result of this litigation process"; Cleveland had contributed to the conflict;
and there was no indication Jayda "would intentionally violate a court order." But
30 In Moeller-Prokosch v. Prokosch (Moeller I ) we set forth a two-step test
that the superior court must apply in its best interests analysis if a parent's plans to move
are tied into the custody determination. 27 P.3d 314, 316-17 (Alaska 2001) (holding that
court must first determine if the move is "legitimate" and then apply statutory custody
factors to determine custody arrangement that serves child's best interests). And in
Moeller III , we clarified that the court further must provide "symmetric consideration"
to the child's best interests by examining the consequences to the child of awarding
custody to both the moving parent and non-moving parent. Moeller-Prokosch v.
Prokosch (Moeller III) , 99 P.3d 531, 535-36 (Alaska 2004). Jayda contends the court
failed to follow the Moeller-Prokosch framework and apply symmetric considerations
in analyzing the impact of the daughter's move to Washington, D.C. "But [the
framework] does not apply when the parents already live in separate locations at the time
of the evidentiary hearing and the court hears evidence about the child's environment in
both locations." Pingree v. Cossette , 424 P.3d 371, 385 (Alaska 2018) (emphasis in
original). Jayda and Cleveland already had moved outside Alaska before the custody
trial, and there is no indication they intended to again relocate. Thus, the Moeller-
Prokosch framework does not apply in this case.
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Schweigert expressed concerns about Jayda's attempts to alienate the daughter from
Cleveland, recommended the court find that Jayda and Richard had "interfered with the
parental relationship between [the daughter] and" Cleveland, and cautioned that if Jayda
and Richard continued to interfere, "a change in primary placement may be the only way
to preserve and protect" Cleveland's relationship with the daughter.
Schweigert's August 2018 supplemental report raised further concerns
about Jayda's alienation of the daughter from Cleveland. Schweigert discussed
additional incidents of Jayda interfering in Cleveland's visits. Schweigert also
considered her conversation with the daughter's counselor, who explained that Jayda's
sending the daughter text "messages that her mother missed her and sending the child
photographs during[Cleveland's]visit was veryinappropriate." Schweigertnonetheless
did not change her recommendation.
Schweigert's placement recommendation changed at trial. Schweigert
testified that since December 2017 Jayda had engaged in a "systematic effort to minimize
and marginalize [Cleveland's] role," citing Jayda's conduct during Cleveland's summer
visitation and the daughter's use of Jayda's maiden name. Schweigert expected that
Jayda's interference in the father-daughter relationship likely would only worsen after
the litigation ended, testifying: "If [the daughter's] relationship with her father is going
to be preserved and protected, I don't see another alternative except for [her] being
placed with [Cleveland]."
Despite Jayda's assertion on appeal that Schweigert was inconsistent in her
reports and her testimony, the substance of Schweigert's reports is entirely consistent
with her later trial testimony. She testified at length on direct and cross-examination on
the reasons for her new recommendation. Schweigert recognized that the concerns she
raised in her report had become a reality, requiring her to change her custody
recommendation.
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----------------------- Page 25-----------------------
We previously have recognized that custody investigators "are simply
expert witnesses and that their recommendations should be evaluated on a case-by-case
31 The superior
basis, in the same manner as testimony presented by other witnesses."
court weighed Schweigert's new custody recommendation against her previous written
recommendation and was "confident that she wouldn't be making that recommendation
without feeling that there's very strong reason to be concerned." The record supports
that the court appropriately weighed Schweigert's testimony against her written report
and the other evidence in the record. The court did not abuse its discretion in weighing
the custody investigator's trial testimony.
2. Consideration of all statutory factors and focus on the
determinative factors
"The superior court has broad discretion in determining custody awards so
long as the determination is in the child's best interests."32
The court must consider the
33
factors listed in AS 25.24.150(c) when making its best interests analysis. And we have
emphasized the importance of factor (6), "the willingness and ability of each parent to
facilitate and encourage a close and continuing relationship between the other parent and
34
the child," when "a great distance separates the child[] from the non-custodial parent."
The superior court made written findings about each statutory custody
factor. The court found that most factors either weighed equally or did not apply. The
court did not need to discuss all factors in great detail because the only significant
31 Ebertz v. Ebertz , 113 P.3d 643, 647 (Alaska 2005).
32 Nancy M. v. John M., 308 P.3d 1130, 1133 (Alaska 2013) (quoting
Stephanie F. v. George C. , 270 P.3d 737, 745 (Alaska 2012)).
33 See supra note 27.
34 Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005).
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----------------------- Page 26-----------------------
35
disputes involved factors (5), (6), and (7). And the court concluded that factor (7),
involving domestic violence, did not affect its custody determination because it had
insufficient evidence to find that Jayda had committed domestic violence.
Jayda contends that the superior court "appeared to ignore" factor (5), "the
length of time the child has lived in a stable, satisfactory environment and the desirability
of maintaining continuity." But the court's decision turned on weighing the daughter's
stability with Jayda against Jayda's interference with the father-daughter relationship:
"[T]he key factors in this case turn on the . . . stability of the current household, the
desirability of maintaining continuity, and the extent to which . . . each party would
promote the child's relationship with the other party."
Relevant to factor (5), the court noted that the daughter had "been almost
exclusively with one parent for the first . . . 90-percent-plus of [her] life" and that she had
"an established relationship and close relationships" with her mother and maternal
grandmother, "who are principal figures in her life and have been for a long time." The
court reiterated that it "appreciate[d]" that "deep relationship." The court thus clearly
considered the impact awarding custody to Cleveland would have on the daughter's
relationships with her mother and maternal grandmother.
The court recognized that Cleveland was "slow in stepping up to the plate"
in his role as a father, but it felt that the evidence showed the daughter had "successfully
attached to him." The court noted that Jayda "had a significant number of opportunities
35 Smith v.Weekley , 73 P.3d 1219, 1227 (Alaska 2003) ("Whilethecourt need
not make findings on every possible issue, it should at least make findings on those
which were relevant and which ultimately influenced its decision."); see also
Borchgrevnik v. Borchgrevnik , 941 P.2d 132, 139 (Alaska 1997) ("A trial court's factual
findings need not be extensive, but must either give us a clear indication of the factors
which the superior court considered important in exercising its discretion or allow us to
glean from the record what considerations were involved.").
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----------------------- Page 27-----------------------
to prove that she could protect that relationship and promote it, and she's not been able
to do that." The court found a "significant amount of evidence" about Jayda's
interference in the relationship that "would really imperil [the daughter's] future
happiness." It was within the court's authority to determine that Jayda's consistent
attempts to isolate the daughter from Cleveland weighed in favor of granting him
custody.
Thesuperior court considered all thestatutory factors andweighed themost
relevant factors. We see no abuse of discretion.
IV. CONCLUSION
We AFFIRM the superior court's child custody order.
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