| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
| Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions |
|
|
|
|
You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Julie I. Husby and Gregory L. Husby v. Jennifer M. Monegan and Scout A. Monegan (9/16/2022) sp-7620
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
JULIE I. HUSBY and GREGORY L. )
HUSBY, ) Supreme Court No. S-18023
)
Appellants,
) Superior Court No. 3AN-19-09729 CI
)
v.
) O P I N I O N
)
JENNIFER M. MONEGAN and
) No. 7620 - September 16, 2022
SCOUT A. MONEGAN, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: Herbert M. Pearce, Law Office of Herbert M.
Pearce, Anchorage, for Appellants. Notice of
nonparticipation filed by Michael Gershel, Law Office of
Michael Gershel, Anchorage, for Appellees.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
BORGHESAN, Justice.
I. INTRODUCTION
This appeal presents two related questions of law arising out of a motion
to modify an order giving visitation rights to grandparents.
First, which statute governs a motion to modify grandparents' visitation:
AS 25.20.065(a), which permits grandparents to petition for visitation but does not
----------------------- Page 2-----------------------
mention modification of visitation orders; or AS 25.20.110(a), which authorizes
modification of visitation orders but does not expressly mention grandparents? We
conclude that AS 25.20.110(a) applies, requiring a movant to show a substantial change
in circumstances before the court may modify the existing order.
Second, when a grandparent seeks visitation over a parent's objection, the
grandparent must show clear and convincing evidence that the parent is unfit or that
1 If the court awards visitation rights
denying visitation will be detrimental to the child.
to a grandparent, and the parent later moves to modify the grandparent's visitation rights,
must the court apply this "parental preference rule" in deciding whether to modify
visitation? We hold that so long as the parents were protected by the parental preference
rule in the proceedings resulting in the grandparent's visitation rights, the rule does not
apply in later proceedings to modify those visitation rights.
Having clarified the applicable legal standards, we reverse and remand the
superior court's order in this case because it was error to decide the motions to modify
the grandparents' visitation rights without first holding a hearing on disputed issues of
fact.
1 See Ross v. Bauman , 353 P.3d 816, 828-29 (Alaska 2015); cf. Daves v.
McKinley, 425 P.3d 92, 96 (Alaska 2018) ("In its initial resolution of a custody dispute
between a . . . parent and any third party, including a grandparent, the . . . parent prevails
unless the non-parent shows 'by clear and convincing evidence that the parent is unfit
or that the welfare of the child requires the child to be in the custody of the non-parent.' "
(quoting Dara v. Gish , 404 P.3d 154, 161 (Alaska 2017))).
-2- 7620
----------------------- Page 3-----------------------
II. FACTS AND PROCEEDINGS
A. Facts
Jennifer Monegan is the birth mother of a child born in 2011, and Scout
2
Monegan is the child's adoptive father.
Gregory and Julie Husby are the child's
maternal grandparents and live in Oregon. Jennifer and her child lived with the Husbys
for a time after the child's birth; the Husbys provided childcare and were significantly
involved in the child's life until he was two and a half years old. However, Jennifer's
relationship with the Husbys began to deteriorate after she started dating Scout.
After Jennifer and Scout married in 2013, the Husbys petitioned for
visitation in Oregon, where all of the parties lived at the time. Jennifer and the Husbys
came to a mediated agreement providing, among other things, that the Husbys would
have visitation with the child one weekend per month for 32 hours, as well as unlimited
written and telephonic contact. The agreement also gave the parties an ongoing
responsibility to update their contact information. An Oregon court approved the
agreement and entered a stipulated order in March 2014.
The Monegans moved to Alaska in March 2018. In-person visits occurred
less frequently after the relocation: Between March 2018 and August 2019 the Husbys
visited the child seven times. The Husbys tried to maintain their relationship with the
child through letters, gifts, and weekly phone calls, and claim they were able to do so
through the summer of 2019.
B. Proceedings
In September 2019 the Monegans filed a complaint in the superior court to
terminate the Husbys' visitation rights, alleging it was not in the child's best interests to
2 Scout adopted the child in 2014.
-3- 7620
----------------------- Page 4-----------------------
continue visitation. The Husbys counterclaimed for modification of the stipulated order
to allow "reasonable visitation" with the child.
1. Cross-motions to modify visitation
The Husbys then filed a motion to enforce the stipulated visitation order.
The Husbys alleged that Jennifer and Scout were failing to abide by the stipulated order
in several ways, including by limiting the frequency and duration of their phone calls
with the child. The Husbys also alleged that Jennifer and Scout had cancelled three
visits. In addition to seeking the Monegans' compliance with the stipulated order, the
Husbys reiterated their request for an order modifying the visitation schedule.
The Monegans opposed the Husbys' motion and filed a cross-motion to
deny the Husbys visitation rights. The Monegans submitted an affidavit from Jennifer
and unsworn declarations from the child's birth father, the birth father's wife, and
Jennifer's sister. Relying on these documents, the Monegans alleged that Gregory had
secretly contacted the child's birth father in 2019 to obtain a sample of his DNA for a
paternity test. Although the child did not know at the time that he was adopted, Gregory
allegedly told the birth father that the child had been asking who his birth father was.
The Monegans alleged that once the paternity test came back, Gregory threatened to sue
them to vacate the adoption. The Monegans added that Gregory had threatened to read
the child a lengthy and derogatory "book" Gregory wrote about the Monegans if they did
not comply with his requests. The Monegans also alleged that Gregory had become
"belligerentand bullying"inhis interactions with them, andattached transcriptsofphone
conversations between the parties corroborating their account.
Jennifer's sister alleged that Gregory had been physically violent with his
children when they were younger. Among other things she alleged that Gregory had
once drunkenly waved a gun and threatened to kill himself and told the sister "he could
kill [her] and no one would know." Jennifer's sister also stated that she had recently
-4- 7620
----------------------- Page 5-----------------------
obtained a restraining order against Gregory becausehehad screamedat her husband and
used "foul language" and "derogatory names" after she rejected the Husbys' request to
visit with her daughter.
In response the Husbys submitted an affidavit from Gregory. Gregory
denied many of the Monegans' allegations, denying that he had harassed any of his
children or their spouses, engaged in belligerent or bullying behavior, been physically
violent with his children when they were younger, or pulled a gun on Jennifer's sister.
The Husbys also submitted an affidavit from Jennifer's brother, which suggested that an
incident involving Gregory that the sister's declaration portrayed as inappropriate was
in fact reasonable and caused him no harm.
2. Superior court's order terminating visitation rights
The superior court issued an order denying the Husbys' motion to enforce
the stipulated order and granting the Monegans' cross-motion to deny the Husbys
visitation rights.
In deciding the Monegans' motion to modify the Husbys' visitation, the
3
superior court applied AS 25.20.065(a), as modified by our decision in Ross v. Bauman .
This statute authorizes a grandparent to petition the superior court for an order
establishing reasonable rights of visitation between the grandparent and child if: "(1) the
grandparent has established or attempted to establish ongoing personal contact with the
child; and (2) visitation by the grandparent is in the child's best interest." Ross held that,
to protect parents' fundamental constitutional right to raise their children, a grandparent
who seeks visitation over a parent's objection must also "prove by clear and convincing
evidence that it is detrimental to the child to limit visitation with the [grandparent] to
3 353 P.3d at 828-29.
-5- 7620
----------------------- Page 6-----------------------
4
what the child's otherwise fit parents have determined to be reasonable." The superior
court determined that AS 25.20.110(a), which requires a showing of substantial change
in circumstances before an existing visitation order may be modified, did not apply to
this case. Nevertheless, the court found that the Monegans' move from Oregon to
Alaska qualified as a substantial change in circumstances.
Applying the standards in AS 25.20.065(a), the superior court first found
that the Husbys had established ongoing personal contact with the child, citing the
regular childcare they provided until he was two-and-a-half, and their regular visitation
with him until he moved to Alaska. In its best interests analysis the court found that the
child's "physical, emotional, and mental needs are not benefitted by being subjected to
Gregory's forceful and, many times, inappropriate meddling into decisions that should
be reserved for [the child's] parents." Referencing Gregory's investigation into the
child's paternity, his threats to share derogatory information about the Monegans with
the child, and his threats to overturn Scout's adoption of the child, the court found that
although the Husbys "clear[ly] . . . love their grandchild," Gregory's manipulation and
aggression in pursuit of his goals were detrimental to the child. The court also noted the
alleged history of abuse in the Husby household, citing two incidents: the one when
Gregory allegedly handcuffed his son to a bed, and the one when Gregory drunkenly
waved a gun around and threatened to kill himself and Jennifer's sister.
Finally the court found that the Husbys had not shown by clear and
convincing evidence that a lack of visitation would be detrimental to the child. The court
therefore denied the Husbys' request for visitation against the Monegans' wishes.
The Husbys moved for reconsideration, arguing that the superior court
applied the incorrect standard in determining whether to modify the stipulated visitation
4 Id.
-6- 7620
----------------------- Page 7-----------------------
order. The Husbys also claimed that the court was required to hold an evidentiary
hearing before modifying the stipulated order. The court denied the Husbys' motion for
reconsideration, disagreeing with the Husbys' argument that AS 25.20.110(a) - rather
than the standard the court applied - governs modification of grandparent visitation
rights. The court also noted that the Husbys had failed to request an evidentiary hearing
to address modification of the stipulated order despite having the opportunity to do so
prior to the court's ruling on the merits.
3. Motion to compel enforcement of notice provision
After reconsideration was denied the Husbys filed a motion to compel
disclosure of the Monegans' mailing address. The Husbys argued that disclosure was
mandated by the terms of the adoption decree, which incorporated the stipulated
visitation order, including the provision for updating contact information. The
Monegans opposed, and the superior court denied the Husbys' motion, explaining that
the Monegans have the right to determine appropriate contact between the child and
grandparents.
The Husbys appeal the superior court's order terminating their visitation
rights and the order denying their motion to compel.
III. STANDARDS OF REVIEW
Whether the superior court applied the correct standard in a custody or
5
visitation determination is a question of law we review de novo.
We also review de
5 Id. at 823 (Alaska 2015) (quoting Osterkamp v. Stiles, 235 P.3d 178, 184
(Alaska 2010)).
-7- 7620
----------------------- Page 8-----------------------
6
novo constitutionalquestions, including theadequacy of the noticeand hearing afforded
7
a litigant.
IV. DISCUSSION
A. It Was Error To Apply AS 25.20.065(a) And The Parental Preference
Rule When Considering The Proposed Modification Of Grandparent
Visitation, But This Error Was Harmless.
When a party seeks to modify an order giving visitation rights to
grandparents, AS 25.20.110(a) applies. This statute, which governs modification of
custody and visitation orders generally, requires the movant to showa substantial change
in circumstances and that modified visitation is in the child's best interests. And so long
8
as the parental preference rule described in Ross v. Bauman applied in the proceedings
that yielded the initial visitation order in the grandparents' favor, the parental preference
rule does not apply in subsequent proceedings to modify that order.
In this case the superior court mistakenly applied the statute governing
petitions to establish grandparent visitation in the first instance, AS 25.20.065(a), as well
as the parental preference rule. These two errors do not, by themselves, require reversal.
The court found in the alternative that the Monegans established the substantial change
9
in circumstances required by AS 25.20.110(a): their move fromOregon to Alaska. And
applying the parental preference rule was not decisive because the court separately found
6 Id.
7 Debra P. v. Laurence S., 309 P.3d 1258, 1260 (Alaska 2013) (quotation
omitted).
8 353 P.3d at 828-29.
9 Alaska R. Civ. P. 61 ("The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the substantial
rights of the parties.").
-8- 7620
----------------------- Page 9-----------------------
that having visitation with the Husbys was not in the child's best interests. But because
this best interests finding was made without first holding a hearing to resolve disputed
facts, we remand for further proceedings.
1. Alaska Statute 25.20.110(a) governs motions to modify orders
granting visitation rights to grandparents.
In deciding whether to grant the Monegans' motion to modify the Husbys'
visitation, the superior court applied AS 25.20.065(a), under which "a child's
grandparent may petition the superior court for an order establishing reasonable rights
of visitation" if the grandparent "has established or attempted to establish ongoing
personal contact with the child" and visitation "is in the child's best interest." The
Husbys contend that the superior court should have applied AS 25.20.110(a)'s standard,
which requires that a party moving to modify custody or visitation show a substantial
change in circumstances requiring modification of the award and that the modification
is in the child's best interests. We agree with the Husbys. 10
We construe statutes according to reason, practicality, and common sense,
considering the meaning of the statute's language, its legislative history, and its
purpose.11 The goal of statutory construction is to give effect to the legislature's intent,
with due regard for the meaning the statutory language conveys to others.12
"We give
10 Ross, 353 P.3d at 823 ("[W]hether the [superior] court applied the correct
standard in a custody [or visitation] determination is a question of law we review de
novo." (third alteration in original) (quoting Osterkamp, 235 P.3d at 184)).
11 Roberge v. ASRC Constr. Holding Co., 503 P.3d 102, 104 (Alaska 2022)
(quoting Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017)).
12 Id. (quoting Murphy v. Fairbanks North Star Borough, 494 P.3d 556, 563
(Alaska 2021)).
-9- 7620
----------------------- Page 10-----------------------
13
unambiguous statutory language its ordinary and common meaning . . . ." And
whenever possible we interpret each part or section of a statute in light of every other
part or section, so as to create a "harmonious whole." 14
The text of AS 25.20.065(a) indicates that it does not apply to modification
of existing visitation orders. For one, the text specifically authorizes petitions to
15 Furthermore, the element of
"establish[]" visitation; it does not mention modification.
the statute's test requiring grandparents to have "established or attempted to establish
ongoing personal contact with the child"16 is meaningful only when applied to a petition
to establish visitation rights for the first time. When a party seeks to modify an order
granting visitation rights to a grandparent, the grandparent will necessarily already have
established ongoing personal contact with the child. It does not make sense to apply
AS 25.20.065(a) to motions to modify visitation when one part of the two-part test is
superfluous in that context.
By contrast, AS 25.20.110(a) broadly allows a court to modify "[a]n award
of custody of a child or visitation with the child . . . 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." Although this statute does not mention grandparents and
does specifically mention parents, the statutory text does not limit its scope to orders
granting visitation to parents. The reference to "parent" provides only that the court must
13 Id. (quoting Cora G. v. State, Dep't of Health &Soc. Servs., Off. of Child.'s
Servs., 461 P.3d 1265, 1277 (Alaska 2020)).
14 Id. (quoting Darrow, 403 P.3d at 1127).
15 AS 25.20.065(a).
16 AS 25.20.065(a)(1).
-10- 7620
----------------------- Page 11-----------------------
17
explain its reasoning on the record if modifying visitation over a parent's objection.
But the statutory text is broad enough to encompass modification of grandparent
visitation orders. And there is no indication in the statute's legislative history of intent
to exclude modification of grandparent visitation awards from the statute's purview.
The policies behind AS 25.20.110(a)'s standard for modifying custody and
visitation apply equally to parents and grandparents. Requiring the movant to show a
substantial change in circumstances since the existing custody or visitation order was
issued promotes "finality and certainty," qualities that are "critical to the child's
18 The change in circumstances requirement thus "supplement[s] the
emotional welfare."
statutorily mandated 'best interest of the child' standard by recognizing the child's right
to stability and continuity in his or her living arrangements."19 The requirement protects
that right by discouraging "harmful and needless relitigation of the issues" in custody or
visitation proceedings of any type.20
The superior court relied on Oregon case law to conclude that a change of
circumstances is not needed to modify a grandparent visitation award. Oregon law is
inapposite because there, unlike here, a party never needs to show a change of
circumstances to modify visitation, whether by parents or grandparents. Oregon does
17 AS 25.20.110(a) ("If a parent opposes the modification of the award of
custody or visitation with the child and the modification is granted, the court shall enter
on the record its reasons for the modification.").
18 McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (quoting Peterson
v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009)).
19 Richard Montes, Harold J. Cohn & Shelley L. Albaum, The Changed-
Circumstance Rule and the Best Interest of the Child, 24 L.A. LAW., Dec. 2001, at 12.
20 LINDA D. E LROD, C HILD CUSTODY PRACTICE & P ROCEDURE § 17:4 (2021
ed.).
-11- 7620
----------------------- Page 12-----------------------
21
not have a statutory standard for modifying visitation. Oregon courts have held that
although a showing of a substantial change of circumstances is required before
modifying parental custody, the only relevant factor when deciding whether to modify
22 But Alaska law expressly
court-ordered visitation is the best interests of the child.
requires a showing of a change of circumstances to modify custody and visitation
orders.23 The Oregon decisions relied on by the superior court simply do not fit our
statutory framework.
But we do find persuasive the logic of the Tennessee Supreme Court when
faced with the same statutory problem we face here. Tennessee's grandparent visitation
statute, like ours, addresses only the initial petition for visitation; it does not mention
modification of court-ordered visitation.24 In Lovlace v. Copley the Tennessee court
determined that a party seeking modification of court-ordered grandparent visitation
must first demonstrate a material change in circumstances and then prove that the
25 The court
requested modification of visitation is in the best interests of the child.
reasoned that this framework for modifying a parent's visitation is "equally applicable"
when modifying grandparent visitation because "giv[ing] deference to a court's order"
and "promot[ing] the important policy goal of stability for the child" are concerns in both
21 See Meader v. Meader, 94 P.3d 123, 130-31 (Or. App. 2004), rev. denied,
101 P.3d 809 (Or. 2004).
22 Id. ; see also In re Marriage of Ortiz, 801 P.2d 767, 769-70 (Or. 1990).
23 AS 25.20.110(a).
24 Compare id., with TENN. CODE ANN . § 36-6-306 (West 2022).
25 418 S.W.3d 1, 23 (Tenn. 2013).
-12- 7620
----------------------- Page 13-----------------------
26
types of proceedings. The court also declined to distinguish between modification of
custody and visitation, noting that "[v]isitation rights arise from the right of custody and
27
are controlled by the same constitutional protections."
In light of the text and purpose of our own statutes, as well as the rulings
of other courts that have adopted a change in circumstances requirement when
28 we hold that AS 25.20.110(a)
addressing motions to modify grandparent visitation,
applies to motions to modify an order granting visitation to grandparents.
2. The parental preference rule does not apply in proceedings to
modify a grandparent's visitation rights so long as the rule
applied to the initial proceeding establishing those rights.
TheHusbysalso arguethat thesuperior court erred by applying theparental
preference rule in the proceedings to modify their visitation, contending that this rule
should apply only to an initial petition to establish grandparent visitation under
AS 25.20.065(a). We generally agree with the Husbys' argument on this point.
The parental preference rule protects parents' constitutional liberty interest
in the care, custody, and control of their children by creating a presumption in favor of
"a fit parent's determination as to the desirability of visitation with third parties."29
The
26 Id. at 29, 31 (quoting Rennels v. Rennels, 257 P.3d 396, 401-02 (Nev.
2011)).
27 Id. at 30 (alteration in original) (quoting Smallwood v. Mann, 205 S.W.3d
358, 362-63 (Tenn. 2006)).
28 E.g., Rennels, 257 P.3d at 401-02; Kulbacki v. Michael, 899 N.W.2d 643,
645-46 (N.D. 2017); Scott v. Scott, 19 P.3d 273, 275 (Okla. 2001).
29 Ross v. Bauman, 353 P.3d 816, 827 (Alaska 2015) (emphasis omitted)
(quoting Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004)); see also Troxel v.
Granville, 530 U.S. 57, 65 (2000) ("[T]he interest of parents in the care, custody, and
control of their children[] is perhaps the oldest of the fundamental liberty interests
(continued...)
-13- 7620
----------------------- Page 14-----------------------
rule requires a third party seeking court-ordered visitation with a child to prove by clear
and convincing evidence "that it is detrimental to the child to limit visitation with the
third party to what the child's otherwise fit parents have determined to be reasonable." 30
Yet the rule does not apply in every dispute over visitation between parents
and third parties. We have ruled that the presumption of parental preference "drops out
in subsequent modification proceedings" when a third party has already been granted
31 We now hold that the same rule applies
permanent custody over a parent's objection.
when a third party has previously been granted visitation.
Our decision in C.R.B. v. C.C., a third-party custody case, explains why the
parental preference rule applies only to initial proceedings.32 In that case we
acknowledged that the parental preference rule "is a vital safeguard against enabling
33 Yet
nonparents to convince courts to remove children improperly from their parents."
applying the rule involves "an inevitable sacrifice of children's interests in cases where
a nonparent can better serve those interests, but a parent's custody is not 'clearly
34 We held that this "sacrifice is unnecessary where a court has granted
detrimental.' "
29 (...continued)
recognized by [the U.S. Supreme Court].").
30 Ross, 353 P.3d at 828-29.
31 Daves v. McKinley , 425 P.3d 92, 96 (Alaska 2018) (quoting Abby D. v. Sue
Y., 378 P.3d 388, 392 (Alaska 2016)).
32 959 P.2d 375, 380 (Alaska 1998).
33 Id. (emphasis omitted).
34 Id. ; see also Abby D., 378 P.3d at 394 ("[I]t would be antithetical to the
child's best interests to apply [the parental preference presumption] again in [custody]
modification proceedings.").
-14- 7620
----------------------- Page 15-----------------------
a nonparent custody after giving a parent notice and a chance to be heard" because the
parent's right to custody had already been protected in the initial determination. 35
There is no obvious reason to treat visitation disputes differently. So long
as the parental preference rule applied in the proceeding that resulted in the third-party
visitation order, the rule does not apply in proceedings to modify that order. "Having
once protected the parent's right" to determine visitation "at the risk of sacrificing the
child's best interests, we should not then sacrifice the child's need for stability . . . by
modifyingthosearrangementsmorereadily than in aparent-parentcase."36 Instead, "any
modification motion is subject to the usual test of AS 25.20.110(a), meaning that the . . .
decree will be modified only 'if the court determines that a change in circumstances
requires the modification of the award and the modification is in the best interests of the
child.' "37
The Monegans already received the protection of the parental preference
rule in their initial visitation dispute with the Husbys in the Oregon courts. Oregon law
contains a comparable parental preference rule requiring third parties seeking visitation
with a child against the parents' wishes to rebut the presumption that the parents act in
the child's best interests.38 The Monegans did not invoke the protection of Oregon's
parental preference rule in a contested proceeding. Instead they stipulated to visitation
35 C.R.B., 959 P.2d at 380.
36 Id.
37 Daves, 425 P.3d at 96 (quoting Abby D., 378 P.3d at 392); see also C.R.B.,
959 P.2d at 380.
38 OR. REV. STAT. ANN . § 109.119(1), (2)(a), (3)(a) (West 2022); see also
rrington v. Daum, 18 P.3d 456, 461 (Or. App. 2001) (reversing trial court's decision
Ha
to order third-party visitation because neither third party nor children had interest that
could "overcome father's right to decide the issue of visitation").
-15- 7620
----------------------- Page 16-----------------------
with the Husbys. But the rule nevertheless governed that dispute and protected the
Monegans' constitutional right to direct their child's upbringing. Because that interest
has already been protected, and there is a countervailing need to protect the stability of
the child's family life, the parental preference rule does not apply in these modification
39
proceedings.
B. It Was Error To Modify The Husbys' Visitation Without An
Evidentiary Hearing To Resolve Disputed Facts.
Having clarified the standard courts should use when considering whether
to modify a grandparent visitation award, we turn to the superior court's decision to
terminate the Husbys' visitation rights. The superior court made findings addressing the
two prongs of the correct standard: that the Monegans' move from Oregon to Alaska
was a substantial change in circumstances and that ongoing visitation with the Husbys
was not in the child's best interests. But because the court did not find that the
Monegans' relocation alone justified terminating the Husbys' visitation, and because the
court's findings about thechild's best interests werebasedondisputed factualallegations
erroneously resolved without a hearing, we must vacate the modification order and
remand for further proceedings.
A party moving to modify custody or visitation must "demonstrate that the
[alleged] changed circumstances [since entry of the last decree], considered in
conjunction with other relevant facts bearing upon the child's best interests, warrant
40 The change in circumstances must be
modification of the existing . . . decree."
39 The initial grandparent visitation award was not based on a finding that the
Monegans were unfit. Whether the parental preference rule applies in cases when the
initial visitation award was premised on a finding of parental unfitness is not squarely
presented in this appeal, and we express no opinion on that issue.
40 Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (quoting Lee v. Cox, 790
(continued...)
-16- 7620
----------------------- Page 17-----------------------
41
"substantial," but "[t]he change in circumstances required to modify visitation . . . is not
42
as great as that required for a change in custody."
Although an out-of-state move may
43 the logistical difficulty of physical visitation
be a substantial change in circumstances,
does not necessarily mean that cutting off all contact is in the child's best interests. Here
the court did not rule that the Monegans' relocation alone justified wholly eliminating
the Husbys' in-person visitation, let alone their right to communicate with the child in
writing, over the telephone, or through the internet.
The superior court's other best interests findings reveal why the court
terminated the Husbys' visitation, but we cannot rely on these findings because they
were made without an evidentiary hearing to resolve disputed facts.44 In rejecting the
Husbys' argument on reconsideration that the court should have held an evidentiary
40 (...continued)
P.2d 1359, 1361 (Alaska 1990)).
41
McLane v. Paul, 189 P.3d 1039, 1043 (Alaska 2008) ("We require [a]
showing [of a substantial change in circumstances to modify custody] to maintain
continuity of care and to avoid disturbing and upsetting the child with repeated custody
changes. We have cautioned that '[c]hildren should not be shuttled back and forth
between divorced parents unless there are important circumstances justifying such
change.' " (third alteration in original) (footnote omitted) (quoting Nichols v. Nichols,
516 P.2d 732, 735 (Alaska 1973))).
42 Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999).
43 Cf. Bruce H. v. Jennifer L., 407 P.3d 432, 436-37 (Alaska 2017) ("[F]or
physical custody purposes an out-of-state move is a substantial change of circumstances
as a matter of law.").
44 Regina C. v. Michael C., 440 P.3d 199, 203 (Alaska 2019) ("The'adequacy
of the notice and hearing afforded a litigant' is a question of constitutional law 'to which
we apply our independent judgment.' " (quoting Debra P. v. Laurence S., 309 P.3d 1258,
1260 (Alaska 2013))).
-17- 7620
----------------------- Page 18-----------------------
hearing to protect the Husbys' due process rights, the court commented that "[t]here is
no clear direction either in Alaska Statutes or case law that grandparents are entitled to
an evidentiary hearing for a modification of visitation rights." We have held in other
visitation and custody contexts, however, that parties are entitled to a hearing if they
oppose modification and raise a genuine dispute of material fact regarding the child's
45 The same important interests are at stake here, requiring the same
best interests.
procedural protection.46
The Husbys opposed the Monegans' proposed modification and raised
factual disputes about the child's best interests; it was therefore error to modify visitation
without a hearing. As the superior court recognized, Gregory's affidavits denied at least
some of the Monegans' allegations, including that he had been physically violent with
his children when they were younger, that he had pulled a gun on Jennifer's sister, and
that he had harassed any of his children or their spouses as described in the sister's
declaration. The Husbys also alleged that it would not be in the child's best interests to
45 See A.H. v. P.B. , 2 P.3d 627, 628 (Alaska 2000) (vacating superior court's
order reducing father's visitation without a hearing when father opposed mother's
motion to modify visitation arrangement); Walker v. Walker , 960 P.2d 620, 622 (Alaska
1998) (holding that hearing was required prior to granting an opposed motion to modify
custody when party opposing the custody modification "squarely contested" other
party's allegations via affidavit); D.D. v. L.A.H., 27 P.3d 757, 760 (Alaska 2001)
("[B]ecause Danielle opposed Leif's motion to modify the custody arrangement and
raised factual disputes regarding the best interests of their child, the superior court should
have conducted an evidentiary hearing.").
46 Cf. Laura B. v. Wade B., 424 P.3d 315, 318 (Alaska 2018) ("Had the
superior court held a . . . hearing, Laura could have offered witnesses and other evidence
supporting her contention that living with her was in the daughter's best interests. Laura
also could have examined the custody investigator and rebutted his findings and
credibility assessments with her own evidence. But without the second hearing Laura
was unableto challenge the custody investigator's findings or present other evidence and
arguments about the daughter's best interests.").
-18- 7620
----------------------- Page 19-----------------------
fully cutoffcommunication and visitation withthem, citing the"lasting impression"they
left after providing "crucial and critical care" to the child from his birth until he reached
two and a half years old. Taking all of their allegations as true, the Husbys raise factual
disputes regarding whether ending visitation would be in the child's best interests. On
remand the superior court must hold an evidentiary hearing before making findings of
fact.
For similar reasons we also vacate the superior court's order denying the
Husbys' motion to compel enforcement of the stipulated provision for updating contact
information. The Husbys sought disclosure of the Monegans' current address so that the
Husbys could send letters and gifts to the child. The Husbys frame this provision as a
47 But the
"non-visitation term[]" that survives any termination of their visitation rights.
notice provision is not a standalone right; it merely allows the parties to exercise their
rights of contact under the visitation order. Nevertheless, because the superior court cut
off this right without first holding a hearing on the disputed allegations, we must vacate
its decision.
V. CONCLUSION
We VACATE the superior court's orders modifying visitation and denying
theHusbys' motion tocompel and REMANDfor further proceedings consistentwiththis
opinion.
47 There is no merit to the Husbys' argument that the provision for updating
contact information cannot be modified because it was incorporated into the adoption
order. Any visitation rights incorporated into an adoption order - including provisions
for contact - are subject to future modification.
-19- 7620
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
