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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rosemarie P. v. Kelly B. (10/8/2021) sp-7559
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
ROSEMARIE P., )
) Supreme Court No. S-17960
Appellant, )
) Superior Court No. 3VA-19-00050 CI
v. )
) O P I N I O N
KELLY B., )
) No. 7559 - October 8, 2021
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Valdez, Rachel Aherns, Judge.
Appearances: Roberta C. Erwin, Palmier~Erwin, LLC,
Anchorage, for Appellant. Susan Orlansky, Reeves Amodio
LLC, Anchorage, for Appellee.
Before: Winfree, Chief Justice, Maassen and Borghesan,
Justices. [Carney, Justice, not participating.]
WINFREE, Chief Justice.
I. INTRODUCTION
Two women lived together as unmarried domestic partners. One woman
had a child using artificial insemination; the other helped raise the child but did not adopt
the child. When the women separated, the biological mother prohibited contact between
the child and the other woman, who then petitioned for custody. The superior court
----------------------- Page 2-----------------------
awarded shared custody, and the biological mother appeals. We affirm the shared
custody award.
II. FACTS AND PROCEEDINGS
A. Background Facts
1 and Kelly B. lived in a domestic partnership for about 14
Rosemarie P.
2
years.
When same-sex marriage was not legal in Alaska, they held a "commitment
ceremony"; they did not marry when it became legal. Rosemarie and Kelly decided to
have a child together using artificial insemination. They chose Rosemarie to give birth
and a sperm donor who resembled Kelly. Kelly attended birthing classes and prenatal
appointments with Rosemarie. Kelly was present when Rosemarie gave birth in October
2013. Rosemarie's will named Kelly as the child's guardian. They discussed Kelly
adopting the child, but an attorney apparently gave them advice making adoption seem
3
problematic; they therefore chose not to have Kelly adopt the child.
Rosemarie and Kelly's relationship ended in 2018, when the child was five
years old. Rosemarie initially allowed Kelly to visit the child but later cut off all contact.
Kelly filed a superior court complaint to dissolve the domestic partnership and establish
joint custody.
B. Proceedings
Kelly sought interim shared custody. After a hearing the superior court
awarded Kelly interim visitation only. Kelly then granted Rosemarie access to Kelly's
1 We use the parties' last initials to protect the child's privacy.
2 See Tomal v. Anderson , 426 P.3d 915, 922 n.4 (Alaska 2018) (describing
domestic partnership as involving "unmarried cohabitants living in a marriage-like
relationship").
3 Whether this legal advice was accurate is irrelevant to our decision.
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medical records and agreed to undergo a psychological evaluation. Before making a
final custody determination, the court held another hearing, focusing on Kelly's mental
health and involvement in the child's life.
Kelly testifiedabout her involvement in thechild's daily life. Shedescribed
routinely feeding, bathing, and playing with the child. She described cooking and
cleaning in a home shared with Rosemarie and the child. Kelly said that the child
initially called both her and Rosemarie "mommy" and that they taught the child to call
Rosemarie "mommy" and Kelly "mommo"; community members also testified to
hearing the child call Kelly "mommo."
Kelly's witnesses testified about her role in the child's life, mostly
corroborating her testimony. For example, the child's preschool teacher testified:
"[T]his was most definitely a family unit. . . . [I]t has never been a question in my mind
that [the child] had two moms." A family friend testified: "Their relationship that I've
seen personally is very strong. . . . [The child] gets so excited when he sees [Kelly]. And
he lets everybody else know that it's his mommo too." Another friend testified:
"[T]here's love there. . . . It's definitely not just a person [who] babysits him. It's
definitely somebody he cares deeply about."
Rosemarie contradicted some of the testimony about Kelly's involvement
in the child's life. Rosemarie testified that she was the child's primary caregiver and that
Kelly was more like a stepparent than a mother. Rosemarie also testified that Kelly was
impatient, angry, and occasionally violent toward the child. Rosemarie testified that
Kelly once "violently" shook the child while in his car seat, which "scared [Rosemarie]
to death."
Rosemarie agreed that some of Kelly's testimony was accurate. Rosemarie
conceded that she had called Kelly her "wife"; that they decided to have the child
together; that Kelly was present at the birth; that the child called Kelly "mommo"; and
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that they taught the child he had "two moms." Rosemarie also conceded that Kelly "was
a part of [the child's] life for five years" and "[t]here daily." And Rosemarie conceded
that they raised the child "as a team" and that she had called them a "family."
Rosemarie's witnesses testified about Kelly's interactions with the child.
A friend testified that Kelly was "more punishing," putting the child "in the closet,
tak[ing] things away from him, [and] threaten[ing] him." He also testified that in one
incident Kelly "snapped at [the child] a few times and finally she grabbed him by the arm
and yanked on it extremely hard." A neighbor testified about a time when Rosemarie
brought the child to the neighbor's house because Rosemarie "was worried about her[]
and [the child's] safety." But the neighbor conceded that he had not seen Kelly "us[e]
physical discipline on [the child]." Rosemarie's mother testified that at least "two or
three times that really stand out" Kelly harmed or inappropriately disciplined the child.
The hearing also focused on Kelly's mental health. An expert submitted
a report about Kelly's mental health after interviewing Kelly and Rosemarie,
administering diagnostic tests, and considering collateral information. The report noted
that Kelly may have been diagnosed with Bipolar Disorder in the mid-1990s after a
4 The expert concluded that "there is no documentation of" the
traumatic breakup.
Bipolar Disorder diagnosis but that if Kelly "did have a hypomanic episode . . . then she
would fit the criterion for" Bipolar Disorder.5 The expert declined to diagnose Kelly
4 Bipolar Disorder is "an affective[disorder]characterizedby theoccurrence
of alternating manic, hypomanic, or mixed episodes and with major depres[s]ive
episodes." Bipolar Disorder , S TEDMAN'S MEDICAL DICTIONARY (28th ed. 2006).
5 A manic episode is "a manifestation of major mood disorder involving
enduring periods of persistent and significant elevated, expansive, or irritable mood, and
associatedsymptoms including decreasedsleep,psychomotor speeding,racing thoughts,
flight of ideas, grandiosity, and poor judgment leading to behavior that may later be
(continued...)
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with Bipolar Disorder, instead diagnosing her with Major Depressive Disorder of mild
6
severity.
An interpersonal relations test "provided no evidence of dysfunction" but
indicated that Kelly "experienc[es] malaise and related symptoms of low grade
depression." Kelly's "[i]nterpersonal style" was "characterized as warm, friendly, and
sympathetic. . . . She is equally likely to be caring [as] controlling." The expert noted
that Kelly "appears to be taking ownership for her contribution to the issues in the
relationship." The expert concluded that Kelly likely could co-parent with Rosemarie
but recommended continued counseling. He also concluded that Kelly "need[ed] to be
stable emotionally and in compliance with her medication prescription to reduce the
possibility of future stressful interactions with [the child]" and that she could capably
follow a court order to that effect.
The parties also testified about Kelly's mental health. Kelly testified that
her mental health was stabilized and controlled through medication. She testified that
she voluntarily had seen various doctors and taken various prescribed medications. She
endorsed the expert's report, agreed to attend further counseling, and agreed to follow
any medication-related court order.
Rosemarie testified to her experience with Kelly's severe, sometimes
uncontrolled, manic and depressive episodes. Rosemarie also testified that Kelly
5 (...continued)
TEDMAN'S MEDICAL DICTIONARY (28th ed. 2006). A
regretted." Manic Episode, S
hypomanic episode involves the same features but to a lesser degree. Hypomanic
Episode, S TEDMAN'S MEDICAL DICTIONARY (28th ed. 2006).
6 Major DepressiveDisorder is "amentaldisorder characterized by sustained
[depression] of mood, anhedonia, sleep and appetite disturbances, and feelings of
worthlessness, guilt, and hopelessness." Major Depression, STEDMAN 'S MEDICAL
DICTIONARY (28th ed. 2006). This was consistent with the diagnoses of two other
medical professionals.
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repeatedly became irritable and erratic after going off her medication without medical
supervision and that Kelly's attempts to go off her medication damaged their
relationship.
After the hearing the superior court requested written closing arguments,
specifically asking the parties to address "equal protection or things like that from other
7 discussed the
states." Kelly's written closingargument addressed Obergefellv. Hodges,
constitutional rights of same-sex couples, and surveyed non-Alaska cases addressing
similar custody issues. Rosemarieprimarily analogized topsychologicalparentlawfrom
Oregon and argued that Kelly had not proved that sole custody with Rosemarie would
harm the child's welfare.
Inawrittenorderthesuperior court interpreted Alaska's legitimationstatute
8 The court alternatively
and found that Kelly is the child's legal parent under the statute.
found that Kelly is the child's psychological parent and that denying Kelly custody
would harm the child's welfare.9
The superior court found that Kelly is the child's parent based on evidence
that: the parties held a commitment ceremony and lived together for about 14 years;
7 576 U.S. 644, 680 (2015) (concluding U.S. Constitution "does not permit
the [government] to bar same-sex couples from marriage").
8 AS 25.20.050 ("A child . . . is legitimated and considered the heir of a
putative parent when . . . the putative parent is determined by a superior court . . . upon
sufficient evidence, to be a parent of the child. Acceptable evidence includes . . . conduct
and bearing toward the child . . . indicat[ing] that the child is the child of the putative
parent.").
9 See Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982) ("[Alaska's]
statutes recognize that those relationships that affect the child which are based upon
psychological rather than biological parentage may be important enough to protect
through custody and visitation.").
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Rosemarie had listed Kelly as the child's guardian on official documents; they raised the
child "as a team"; they told the child he "had two moms"; and they "discussed all
significant elements of the child's upbringing together." The court emphasized that the
child calls Kelly "[m]ommo," suggesting that "he views her as a psychological parent."
The court also noted that Kelly and the child have a "mutually loving relationship." It
highlighted that the primary testimony contradicting the quality of the child's
relationship with Kelly came from Rosemarie and that this testimony was "impossible
to believe" in light of the parties' "intimate relationship over the first five years of [the
child's] life." The court excused Kelly's decision not to adopt the child because it was
based on potentially problematic legal advice.
The superior court also explicitly found "by clear and convincing evidence
that [the child's] welfare requires [Kelly] to have joint legal and shared physical
10 The court noted that the child has viewed Kelly as a "caregiver" and "mother
custody."
figure" since birth. The court concluded that the child "would suffer clear detriment if
11 The superior court then analyzed the
he were placed solely in Rosemarie's custody."
statutory best interests factors and made detailed, well-supported factual findings related
to each factor.12 The court concluded that shared custody was in the child's best interests
and awarded joint legal and 50/50 shared physical custody.
Rosemarie appeals.
10 See Dara v. Gish , 404 P.3d 154, 161 (Alaska 2017) (requiring, before
awarding third-party custody, finding by clear and convincing evidence that child's
welfare requires third-party custody or that parent is unfit).
11 See id. (stating child's welfare requires third-party custody when absence
would cause child to suffer clear detriment).
12 See AS 25.24.150(c) (requiring court to consider nine statutory factors to
determine custody arrangement in child's best interests).
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III. STANDARD OF REVIEW
13
Superior courts have broad discretion to award custody.
We will reverse
a custody award only if the superior court abused its discretion or relied on clearly
14
erroneous factual findings. A factual finding is "clearly erroneous when a review of
15
the record leaves us with the definite impression that a mistake has been made."
16
Whether a parent-like figure is a psychological parent presents a question of fact.
IV. DISCUSSION
The superior court awarded custody to Kelly as a legal parent and
alternatively as a psychological parent. As discussed below, we affirm the court's
psychological parent analysis without addressing the merits of the court's legitimation
statute analysis.
A. We Affirm The Superior Court's Psychological Parent Analysis And
Resulting Custody Award.
The superior court awarded shared custody based on findings that Kelly is
the child's psychological parent and that sole custody with Rosemarie therefore would
be clearly detrimental to the child. A psychological parent is:
[O]ne who, on a day-to-day basis, through interaction,
companionship, interplay, and mutuality, fulfills the child's
psychological need for an adult. This adult becomes an
essential focus of the child's life, [being] not only the source
13 Dara, 404 P.3d at 159.
14 Id.
15 Id. (quoting Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010)).
16 See id.
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of the fulfillment of the child's physical needs, but also the
source of . . . emotional and psychological needs.[17]
Alaska courts consider various factors to determine whether a third party is a
psychological parent, including the length of the relationship with the child,18
the age and
19
opinion of the child, and whether there is a "strong and heartfelt bond" between the
adult and child.20
21
In light of a parent's constitutional right to custody, a third party seeking
custody - such as a psychological parent - must prove "by clear and convincing
evidence" either "that the parent is unfit or that the welfare of the child requires the child
to be in the custody of the [third party]."22 This case involves only the "welfare of the
17 Carter v. Brodrick , 644 P.2d 850, 853 n.2 (Alaska 1982) (quoting Max F.
Gruenberg, Jr. & Robert D. Mackey, A New Direction for Child Custody in Alaska , 6
LASKA L. R EV. 34, 36 (1976)).
UCLA A
18 See Dara , 404 P.3d at 165 (concluding superior court did not clearly err by
relying on parties being primary caregivers for more than half of child's life when
deciding psychological parent status); Osterkamp, 235 P.3d at 189 (concluding superior
court did not clearly err by finding few months insufficient to establish psychological
parent status).
19 See Osterkamp, 235 P.3d at 189 (considering child's age and inability to
vocalize whether person played parental role).
20 See Dara, 404 P.3d at 164 (noting psychological parents' bond with child
and status as primary caregivers for majority of child's life).
21 Alex H. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 389
P.3d 35, 48 (Alaska 2017) ("The 'right to the care and custody of one's own child is a
fundamental right recognized by both the federal and state constitutions.' " (quoting Seth
D. v. State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs., 175 P.3d 1222, 1227
(Alaska 2008))).
22 Dara, 404 P.3d at 161 (emphasis added) (quoting Osterkamp, 235 P.3d at
(continued...)
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child" prong. To prove that the child's welfare requires third-party custody, the third
party "must show that the child would suffer clear detriment if placed in the [sole]
23 Thus, "although '[p]sychological parent status does not entitle
custody of the parent."
a third party to custody[,] . . . this status can help a third party prove that it would be
clearly detrimental to a child to deny third[-]party custody.' "24
Rosemarie unpersuasively contends that the court's clear detriment finding
is clearly erroneous. She first contends that Kelly did not present the right type of
evidence, noting that "[n]o experts testified on behalf of [Kelly]" and that "no doctor
records, no school reports, or any documents" support Kelly's claims. But Rosemarie
cites no Alaska law on this issue, instead analogizing to an Oregon case.25 We conclude
that Alaska law does not necessarily require expert testimony on psychological parent
issues.26
Rosemarie next contends that significant evidence conflicts with the
superior court's clear detriment finding. Under the psychological parent analysis, Kelly
had an "extremely high burden" to prove by clear and convincing evidence that sole
22 (...continued)
185).
23 Id. (quoting Osterkamp, 235 P.3d at 185).
24 Id. at 161 (emphasis and first two alterations in original) (quoting
Osterkamp, 235 P.3d at 184 n.17).
25 Husk v. Adelman , 383 P.3d 961 (Or. App. 2016) (noting trial court had
considered expert testimony among other factors relevant to custody, but determining
that two other factors weighed most heavily).
26 Cf. Dara, 404 P.3d at 164-65 (discussing, but not expressly requiring,
expert testimony relevant to psychological parent finding); Kinnard v. Kinnard, 43 P.3d
150, 154 (Alaska 2002) (discussing, but not expressly requiring, expert testimony
relevant to psychological parent finding).
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27
custody with Rosemarie would be clearly detrimental to the child. But we "ordinarily
will not overturn a trial court's finding based on conflicting evidence" or "re-weigh
evidence when the record provides clear support for the trial court's ruling." 28
The record provides clear support for the findings that Kellywas thechild's
psychological parent and that separating them would be detrimental to the child. For
example, Kelly testified about routinely feeding, bathing, and playing with the child over
the first five years of his life. Kelly testified that the child initially called both her and
Rosemarie "mommy" and that they taught him to call Rosemarie "mommy" and Kelly
"mommo"; witnesses testified that the child calls Kelly "mommo" and that they lived as
a "family unit." Witnesses also testified that the child suffered and missed Kelly after
their separation. Rosemarie argues that these witnesses did not know Kelly long enough
to understand her bond with the child, but the superior court specifically rejected this
credibility argument; the court concluded that Kelly's witnesses shared relevant
information and that Rosemarie "produced no [competing] witness to contradict their
testimony other than her own" testimony.
Rosemarie conceded that the child calls Kelly "mommo" and that they
taught the child he has "two moms." Rosemarie also conceded that Kelly "was a part of
[the child's] life for five years" and "[t]here daily"; that they raised the child "as a team";
and that she had called them a "family." This evidence supports the findings that
27 Dara, 404 P.3d at 162.
28 Id. at 159 (quoting In re Adoption of S.K.L.H., 204 P.3d 320, 325 (Alaska
2009)).
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(1) Kelly has been present in the child's life daily since birth and (2) the child considers
Kelly a parent. 29
Rosemarie points to her own testimony alleging that Kelly was not a major
part of the child's life. But the superior court explicitly found Rosemarie's testimony
that Kelly did not have a close bond with the child "impossible to believe." And a
court's "factual findings enjoy particular deference when they are based 'primarily on
oral testimony.' "30 Nothing in the record establishes that the court was required to
believe Rosemarie or that the court made a mistake on this issue. The court's factual
findings therefore are not clearly erroneous.
Rosemarie next argues that Kelly had abused the child, preventing
formation of the necessary psychological bond. But the superior court found that Kelly
had not committed domestic violence or engaged in a pattern of verbal abuse. And a
mental health expert noted that Kelly's results on a test measuring child abuse potential
raised no concerns. The expert also concluded that Kelly could co-parent with
Rosemarie. Although the expert had some concerns about Kelly when she is not
medicated, he explicitly found that Kelly has the capacity to follow court orders. The
29 It is not the case, as Rosemarie suggests, that a psychological parent must
form "the child's strongest psychological bond[]" (emphasis omitted) to show clear
detriment to the child from severing that bond. We have stated that when a child's
strongest psychological bond is with a third party, severing that bond is detrimental to
the child. Osterkamp, 235 P.3d at 186 ("[W]hen a child's 'strongest psychological
bonding' is with third parties, 'it would be detrimental to [the child] to destroy those
bonds.' " (second alteration in original) (quoting Todd v. Todd , 989 P.2d 141, 143
(Alaska 1999) overruled in part on other grounds by Evans v. McTaggart , 88 P.3d 1078,
1083-84 (Alaska 2004))). But we have not said that severing a child's strongest bond
is the only way to prove a clear detriment.
30 Limeres v. Limeres, 320 P.3d 291, 296 (Alaska 2014) (quoting Sheffield v.
Sheffield, 265 P.3d 332, 335 (Alaska 2011)).
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court expressly credited Kelly's testimony that she will follow court orders to take
medication as prescribed. This evidence supports the court's finding that allegations
about Kelly inappropriately disciplining the child were not credible.
Rosemarie's competing evidence does not establish that Kelly has
physically or verbally abused the child or that she will in the future. Rosemarie
selectively quotes the expert report, and she points to Kelly's testimony that she once
was diagnosed with Bipolar Disorder. But the record contains no evidence about Kelly's
actual diagnosis. Rosemarie also points to her own, her mother's, and two family
friends' testimony alleging Kelly's "abusive" behavior. The superior court sensibly
could have relied on the expert-administered test to conclude that, despite some contrary
testimony, Kelly was unlikely to harm the child.
Rosemarie essentially asks us to reweigh the evidence, but we ordinarily
31 Because substantial oral and
will not reweigh evidence, especially oral testimony.
written testimony from several witnesses and an expert supports the superior court's
clear detriment finding, it is not clearly erroneous.
B. The Custody Award Does Not Violate Rosemarie's Constitutional
Rights.
Rosemarie correctly notes that the federal and Alaska constitutions protect
a parent's right to custody and care of one's own child,32 but her arguments that awarding
Kelly custody violated this constitutional right are unpersuasive.
31 Dara, 404 P.3d at 162; Limeres, 320 P.3d at 296.
32 Troxel v. Granville, 530 U.S. 57, 66 (2000); Alex H. v. State, Dep't of
Health & Soc. Servs., Off. of Child.'s Servs., 389 P.3d 35, 48 (Alaska 2017).
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----------------------- Page 14-----------------------
As discussed above Kelly is the child's psychological parent, and Alaska's
33
usual third-party custody framework thus applies.
We have "regularly applied this
34
legal framework in third-party custody cases without challenge to its constitutionality"
35
and have explained that it adequately "protects parents' constitutional rights."
Rosemarie concedes that "Alaska [courts have] repeatedly upheld this standard." And,
as in similar cases, Rosemarie "presents no argument why we should consider a
departure now."36 She merely asserts in general terms that her rights were violated.
Thus, "[i]f the superior court applied the correct third-party custody legal standard . . .
there is no reason to question the constitutionality of its decision."37
Rosemariealsocontendsthatthesuperior court incorrectlyappliedAlaska's
third-party custody framework, arguing that the court was required to find that she was
an unfit parent before awarding custody to a third party. But Rosemarie misconstrues
the framework. A court may award custody to a third party after finding by clear and
convincing evidence either (1) "that the parent is unfit" or (2) "that the welfare of the
38 The superior court in
child requires the child to be in the custody of the [third party]."
this case found "by clear and convincing evidence" that "[the child] would suffer clear
detriment if he were placed solely in Rosemarie's custody." And, as discussed above,
33 See Dara, 404 P.3d at 161-62.
34 Id. at 161.
35 Id. at 160.
36 Id. at 161; see, e.g., Osterkamp v. Stiles, 235 P.3d 178, 184-89 (Alaska
2010); Elton H. v. Naomi R., 119 P.3d 969, 975-77 (Alaska 2005); Kinnard v. Kinnard,
43 P.3d 150, 153-55 (Alaska 2002).
37 Dara, 404 P.3d at 161.
38 Id. (quoting Osterkamp, 235 P.3d at 185).
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----------------------- Page 15-----------------------
that finding was not clearly erroneous. Because the court applied the correct third-party
custody framework, the custody award does not violate Rosemarie's constitutional
rights.39
C. We Do Not Address Constitutional Issues Implicated By Alaska's
Legitimation Statute.
The superior court alternatively interpreted Alaska's legitimation statute as
40
applying to Kelly. The statute establishes various ways in which a putative parent may
41
become a child's legal parent. The statute uses language that is sex-neutral (such as
"putative parent") but also language that historically has described only one sex (such
39 We note in response to a question raised at oral argument that the
constitutionally derived biological parental preference does not apply in modification
proceedings after a third party has been granted custody. Abby D. v. Sue Y. , 378 P.3d
388, 392 (Alaska 2016) ("[W]hen [a] non-parent has already been granted permanent
custody, the parental preference drops out in subsequent modification proceedings."
(quoting Evans v. McTaggart , 88 P.3d 1078, 1085 n.32 (Alaska 2004))).
40 Alaska Statute 25.20.050(a) provides:
A child born out of wedlock is legitimated and considered the
heir of the putative parent when (1) the putative parent
subsequently marries the undisputed parent of the child;
(2) for acknowledgments made before July 1, 1997, the
putative parent acknowledges, in writing, being a parent of
the child; (3) for acknowledgments made on or after July 1,
1997, the putative father and the mother both sign a form for
acknowledging paternity under AS 18.50.165; or (4) the
putative parent is determined by a superior court without jury
or by another tribunal, upon sufficient evidence, to be a
parent of the child. Acceptable evidence includes evidence
that the putative parent's conduct and bearing toward the
child, either by word or act, indicates that the child is the
child of the putative parent.
41 See id.
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42
as "mother" and "father"). According to the superior court, this linguistic tension
created ambiguity about superior courts' ability to adjudicate whether women -
especially those in same-sex relationships - were non-biological parents. The superior
court ultimately concluded that, despite scattered use of the word "father," interpreting
the statute as not applying to women in same-sex couples probably would violate equal
43
protection under the federal and Alaska constitutions.
ThepartiesdisputewhetherthesuperiorcourtcorrectlyinterpretedAlaska's
legitimation statute. But, because we affirm the superior court's psychological parent
finding, we do not need to reach the statutory issue. The Alaska legislature may wish to
address, in the first instance, the constitutional issues potentially raised by Alaska's
current legitimation statute.
V. CONCLUSION
We AFFIRM the superior court's decision.
42 See id.
43 The superior court discussed various federal cases: Obergefell v. Hodges,
576 U.S. 644, 670 (2015) (explaining same-sex couples are entitled to "constellation of
benefits that the States have linked to marriage"); Latta v. Otter, 771 F.3d 456, 473 (9th
Cir. 2014) ("[A] desire to express a preference for opposite-sex couples over same-sex
couples is a categorically inadequate justification for discrimination."); SmithKline
Beecham Corp. v. Abbott Lab'ys, 740 F.3d 471, 483 (9th Cir. 2014) ("[W]hen state
action discriminates on the basis of sexual orientation, we must examine its actual
purposes and carefully consider the resulting inequality to ensure that our most
fundamental institutions neither send nor reinforce messages of stigma or second-class
status.").
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