| 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. Oscar M., a Minor v. Marilyn P. and Shawn M. (8/30/2024) sp-7711
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
OSCAR M., a Minor, )
) Supreme Court No. S-18835
Appellant, )
) Superior Court No. 3AN-22-04264 CI
v. )
) O P I N I O N
MARILYN P. and SHAWN M. )
) No. 7711 - August 30, 2024
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Thomas A. Matthews, Judge.
Appearances: David A. Case, 49th State Law, LLC,
Soldotna, for Appellant. Notice of nonparticipation filed by
Mark T. Chicklo, Chicklo Law Group, Anchorage, for
Appellee Shawn M. No appearance by Appellee Marilyn P.
Notice of nonparticipation filed by Olena Kalytiak Davis,
Anchorage, for Guardian Ad Litem.
Before: Maassen, Chief Justice, and Carney, Borghesan,
Henderson, and Pate, Justices.
HENDERSON, Justice.
INTRODUCTION
A 13-year-old challenges the denial of his motion to intervene in his
parents' custody case. After the superior court granted primary interim custody to the
child's father, allowing visitation with the mother on weekends, the child moved to
----------------------- Page 2-----------------------
intervene through an attorney. The court denied the child's motion to intervene, and
the child appeals. We affirm.
FACTS AND PROCEEDINGS
A. Facts
Marilyn P. gave birth to Oscar M. in 2010 in Texas.1 In April 2011 a
Texas court issued an order establishing Shawn M. as Oscar's biological father. The
court issued a custody order granting Marilyn primary physical custody, and Shawn
visitation on the weekends and some holidays. Oscar, Marilyn, and Shawn all moved
to Kodiak in 2020.
B. Proceedings
1. Initial custody disputes
In January 2022 a Kodiak court issued a domestic violence protective
order against Marilyn. The court found by a preponderance of the evidence that Marilyn
had committed, or attempted to commit, assault or reckless endangerment against
Shawn. It issued a temporary custody order granting Shawn custody of Oscar. The
court granted Marilyn visitation during the weekends and when Shawn was at work.
Later in January, Marilyn filed a complaint for custody in Anchorage,
seeking shared legal custody and primary physical custody. Both parties filed cross-
motions for interim custody and made "allegations of domestic violence, parental
alienation and related claims."2 Marilyn also filed three domestic violence petitions on
3
behalf of herself and Oscar against Shawn.
1 We use pseudonyms for all individuals in this case.
2 Marilyn was charged with domestic violence-related offenses but these
charges were dropped in April 2022. The January 2022 protective order against
Marilyn, in Shawn's favor, expired in January 2023.
3 The record on appeal does not contain additional information regarding
these domestic violence petitions.
-2- 7711
----------------------- Page 3-----------------------
In June the venue for the open domestic violence cases was transferred
from Kodiak to Anchorage. The court ordered the Court System's Parenting Plan
Resolution Office to conduct a child interview with Oscar. But the office was unable
to complete the interview because Oscar told the interviewer that Shawn was
videotaping it, and the interview was terminated.
In August the court appointed a Guardian Ad Litem (GAL) from the
Office of Public Advocacy (OPA) for Oscar "[b]ecause of the extraordinary conflict
between the parties and the initial indications that the child may have been influenced
by one or both parents against the other, and the difficulties arranging a neutral and
unbiased interview with the child."
The court held consolidated hearings regarding custody and jurisdiction
issues in August 2022 and January 2023. After considering the testimony that had been
offered, various exhibits, the party's motions, Shawn's long-term domestic violence
protective order against Marilyn, and the GAL's recommendations, the court analyzed
Oscar's best interests4 and issued an interim custody order granting primary physical
custody to Shawn and weekend visitation to Marilyn. The court awarded Shawn sole
legal custody of Oscar but directed that Shawn "notify Marilyn of important medical,
educational or other decisions."
2. Motions to intervene and appoint counsel
In March Oscar retained an attorney and filed a motion, through his
attorney, to intervene in his parents' custody case. Oscar argued he is entitled to
intervene as of right or permissively because he is the petitioner in the domestic
violence petition brought by his mother on his behalf and the custody matter will
determine where Oscar lives. He contended neither the GAL nor his parents had
properly represented his position.
4 The court analyzed the factors under AS 25.24.150(c), 25.20.061,
25.20.070, and 25.20.090.
-3- 7711
----------------------- Page 4-----------------------
In April the GAL moved for the court to appoint counsel for Oscar under
AS 25.24.310(a). The GAL noted that the court had found Marilyn indigent in the past
and had "appointed OPA to provide the [GAL] services." The GAL urged that OPA
should similarly "be appointed to represent" Oscar as counsel. The GAL expressed
concern that Marilyn may have hired Oscar's retained counsel even though Marilyn
"[did] not have legal custody of Oscar." The GAL maintained that she had expressed
Oscar's wishes throughout the litigation even when it conflicted with her understanding
of Oscar's best interests. But the GAL explained that "[b]ecause Oscar's desires are
contrary to the GAL's best interests recommendations, the court should appoint an
impartial attorney to represent Oscar's expressed interests."
In response Marilyn objected to OPA being appointed counsel for Oscar
and supported Oscar selecting his own attorney.
Shawn opposed Oscar's motion to intervene and requested that Oscar's
attorney be disqualified and ordered to withdraw. Shawn argued that the precedent
cited in Oscar's motion to intervene was irrelevant to this case because it dealt with
child in need of aid and delinquency cases as opposed to child custody. He argued that
under AS 25.23.310, the court has discretion to appoint counsel for a child, but that
Oscar did not follow the proper procedure. Shawn maintained that precedent allowing
"a minor to choose counsel also appears conditioned on the maturity of the child at
issue" and contended that Oscar lacks the maturity to choose counsel. He claimed that
Alaska law did not allow Oscar to hire a lawyer, enter into a contract, or sue, especially
without the consent of his parents. He emphasized that he currently has legal custody
of Oscar and "has not consented to Oscar entering into any contracts with an attorney."
Shawn further argued that Oscar's attorney's interference in Oscar's life violated
Shawn's constitutional right to raise his child. He claimed that "Oscar's interests are
fully represented" by his parents and the GAL, so there was no need for an additional
attorney. He suggested that the court could arrange for Oscar to be interviewed if it was
concerned about hearing Oscar's preference.
-4- 7711
----------------------- Page 5-----------------------
The court held oral argument on Oscar's motion to intervene in June. At
the end of oral argument the court requested that the parties file their positions regarding
interim custody and any modifications they were requesting to the January interim
custody order.
3. Interim custody positions
The GAL, the parents, and Oscar filed their positions on interim custody
in June and July. The GAL noted that Marilyn's recent psychological evaluation did
not raise any concerns about Marilyn's ability to parent Oscar. The GAL observed that
the January custody arrangement had not worked well and "recommend[ed] the parents
have shared physical custody and explore a week-on, week-off arrangement until the
final custody trial takes place and a final custody recommendation can be made." The
GAL explained that this arrangement could work to minimize conflict during custody
exchanges and give Oscar more time to "transition and settle with each parent." The
GAL also recommended that the court appoint a parenting coordinator because the
parents had not been "able to come to an agreement on almost anything and there is no
reason to expect that will ever change." The GAL recommended the court continue this
50/50 custody schedule permanently if it is successful, but voiced her concerns
regarding Marilyn violating court orders relating to custody and visitation and "the
emotional impact she [was] having on Oscar through her manipulation and continued
attempts at preventing him from bonding with his father."
Shawn opposed the GAL's recommendation, highlighting aspects of the
psychological evaluation that indicated Marilyn was unwilling to co-parent. Shawn
also noted that Marilyn repeatedly violated the custody order. Shawn requested that the
January custody order remain in place, with the added condition that Marilyn's visits
be supervised.
Oscar also filed his position regarding interim custody through his
attorney. Oscar opposed the GAL's recommendation as unworkable. He suggested he
should spend weekdays with Marilyn and weekends with Shawn, similar to the original
-5- 7711
----------------------- Page 6-----------------------
custody agreement in Texas. He "believ[ed] his mother w[ould] comply with court
orders" and that "both parents c[ould] meet his needs." Oscar "acknowledged there is
more love and affection between [him] and his mother than his father," and noted that
"this issue is somewhat complex because Oscar's father was out of the picture for a
while."
Marilyn agreed with Oscar's positions on interim custody.
4. Order denying intervention
In August the court denied Oscar's motion to intervene in the custody case
and the related domestic violence litigation. Regarding the custody case, the court
observed that Alaska's relevant statutory framework and precedent, along with
precedent from other states, supported denying Oscar's motion. The court also decided
that Oscar's preferences were adequately expressed without making Oscar a party, and
noted that "granting Oscar's [m]otion to intervene would further complicate this already
litigious proceeding." The court also denied intervention in litigation of the domestic
violence petitions. Oscar filed a motion for reconsideration, which the court ultimately
denied.
In a separate order the court denied the GAL's motion to appoint OPA as
counsel for Oscar. The court ordered the Parenting Plan Resolution Office to conduct
a preference interview with Oscar "in an abundance of caution." But in September the
Parenting Plan Resolution Office filed a notice that it was unable to complete the
interview with Oscar, stating, "[O]ften cases with continuous motions and opposing
allegations need a private custody investigator."
5
Oscar appeals the denial of his motion to intervene in the custody case.
5 No other parties participate in this appeal. Additionally Oscar appeals
only the superior court's denial of his motion to intervene in his parents' custody
litigation. He does not appeal the denial of his requests to intervene with respect to the
domestic violence petitions.
-6- 7711
----------------------- Page 7-----------------------
STANDARD OF REVIEW
"Questions of statutory interpretation . . . are reviewed de novo, and we
will adopt the rule of law that is most persuasive in light of precedent, reason, and
6
policy."
Alaska Civil Rule 24 governs intervention as of right and permissive
intervention. "In reviewing a trial court's denial of a motion to intervene as a matter of
right, we apply our independent judgment if timeliness is not at issue and if the facts
7
relevant to intervention are not disputed because then only questions of law are posed."
We review a denial of permissive intervention for abuse of discretion.8 "A decision
constitutes [an] abuse of discretion if it is 'arbitrary, capricious, manifestly
9
unreasonable, or . . . stems from an improper motive.' "
DISCUSSION
The court did not err in denying Oscar's motion to intervene in his parents'
custody dispute. Because it is not clear that analysis of a child's right or ability to
participate in custody litigation is best analyzed under Rule 24, we look first to Alaska's
statutory scheme governing custody litigation. We observe that this statutory scheme
provides mechanisms for considering a child's preferences in a custody dispute, and we
conclude that here the court was provided information about Oscar's best interests and
preferences such that the court need not have allowed Oscar to intervene as a party. We
6 Tuluksak Native Cmty. v. State, Dep't of Health & Soc. Servs., Off. of
Child.'s Servs., 530 P.3d 359, 368 (Alaska 2023).
7 See Hopper v. Est. of Goard, 386 P.3d 1245, 1248 (Alaska 2017) (internal
quotation marks omitted) (quoting Harvey v. Cook, 172 P.3d 794, 798 (Alaska 2007)).
8 State, Dep't of Health & Soc. Servs., Off. of Child.'s Servs. v. Zander B.,
474 P.3d 1153, 1162 (Alaska 2020), overruled on other grounds by Blythe P. v. State,
Dep't of Health & Soc. Servs., Off. of Child.'s Servs. , 524 P.3d 238, 241 (Alaska 2023).
9 Id. (alterations in original) (quoting del Rosario v. Clare, 378 P.3d 380,
383 (Alaska 2016)).
-7- 7711
----------------------- Page 8-----------------------
next analyze Oscar's arguments under a Rule 24 framework. We conclude that the
court did not err or abuse its discretion in denying Oscar's requests under Alaska's
intervention rules, because Oscar's preferences and best interests were adequately
represented through his parents and the GAL, and because allowing intervention would
likely prejudice the parties.
A. Alaska's Relevant Statutory Framework Supports The Court's
Denial Of Oscar's Motion To Intervene.
Alaska's statutory framework for deciding child custody disputes provides
multiple mechanisms for consideration of a child's custody-related preferences where
appropriate. That framework provides that a child may be appointed counsel, a GAL,
or both, so that the child's position or best interests may be represented, and there are
other mechanisms that allow for a court to learn about and consider a child's position
without the child intervening as a party. Here, where the court was able to gather
information about Oscar's preferences in multiple ways, the court did not err or abuse
its discretion in denying Oscar's request to intervene in the litigation.
1. Appointment statute
Alaska Statute 25.24.310 governs representation of a minor in divorce and
custody proceedings. Under the statute, "the court may, upon the motion of a party to
the action or upon its own motion, appoint an attorney or the office of public advocacy
to represent a minor with respect to the custody, support, and visitation of the minor or
in any other legal proceeding involving the minor's welfare."10 When a party or the
court raises this issue, "the court shall determine whether the minor or other child should
have legal representation or other services and shall make a finding on the record before
trial. If the parties are indigent or temporarily without funds, the court shall appoint the
office of public advocacy."11 The statute also provides that the court may appoint a
10 AS 25.24.310(a).
11 Id.
-8- 7711
----------------------- Page 9-----------------------
GAL "[i]nstead of, or in addition to, appointment of an attorney."12 The court must
appoint a GAL "when, in the opinion of the court, representation of the child's best
13
interests, to be distinguished from preferences, would serve the welfare of the child."
Oscar suggests that AS 25.24.310's provision for appointing counsel for
a child in custody litigation anticipates that children should be permitted to intervene as
parties in the litigation. He contends that where the statute allows the court to appoint
a lawyer for a child, the legislature likely contemplated that the lawyer would have a
role in the litigation, essentially providing for intervention at least as to some issues.
Oscar further observes that the statute's allowance for appointment of counsel "does
not exclude retained counsel," so that a child should be permitted to intervene in custody
litigation via his own privately retained attorney.
We agree that AS 25.24.310's provision for appointment of an attorney
for a child anticipates that, where appropriate, the attorney, and thus the child, will have
a role in the litigation at issue, but we disagree with Oscar's suggestion that this should
routinely be the case in custody litigation.14 And we disagree with Oscar's argument
that the superior court in this case was unable to learn of or consider Oscar's preferences
without allowing him to intervene in this case.
Alaska Statute 25.24.310's provision for appointment of counsel for a
child does provide a vehicle for a child, through counsel, to participate in at least some
aspects of custody litigation under certain circumstances. And it may be that in rare
circumstances it would be appropriate for a child, through counsel, to participate as a
12 AS 25.24.310(c).
13 Id.
14 See Louie v. BP Expl. (Alaska), Inc., 327 P.3d 204, 206 (Alaska 2014)
("[W]e interpret the statute according to reason, practicality, and common sense."
(citing Grimm v. Wagoner, 77 P.3d 423, 427 (Alaska 2003))). Even if Oscar followed
the proper procedures for the appointment of an attorney under AS 25.24.310(a) this
would not change our analysis of the denial of Oscar's motion to intervene.
-9- 7711
----------------------- Page 10-----------------------
party in child custody litigation.15 But the statute does not mandate that a child must
be permitted to intervene as a party in custody litigation. Nor does the statute elevate
the child's preferences beyond the other enumerated factors to be considered in
determining best interests such that a child should typically be permitted to intervene
as a party in his parents' custody litigation. Indeed routine intervention by children as
parties in custody litigation would seem to be contrary to their best interests as
explained below.
While the appointment statute provides the court an ability to hear from a
child, through counsel, regarding one or more issues, the statute is a flexible one that
calls upon the court to exercise its discretion in discerning when appointment of
counsel, appointment of a GAL, or use of another mechanism for hearing from a child
would inform the court about the child's best interests and serve the welfare of the
child.16 Here the court exercised its discretion and determined that appointment of a
GAL would serve Oscar's welfare. And the GAL both advocated for Oscar's best
interests and separately informed the court, multiple times, of Oscar's position. Nothing
in the record suggests that the court abused the discretion afforded to it under the
17
appointment statute when it denied Oscar's request to intervene.
15 See Ihinger v. Ihinger , 824 A.2d 601, 604 (Vt. 2003) ("[A]lthough
children are not statutory parties to a divorce action involving their parents, they may
still become parties if they meet the usual standards governing intervention."); Loll v.
Loll, 561 N.W.2d 625, 630-31 (N.D. 1997) ("[U]nder very rare, extraordinary
circumstances, a child may need to become a party in a custodial case.").
16 See AS 25.24.310(a), (c).
17 See id. We do not address Oscar's arguments regarding his right to retain
private counsel because they are not relevant in determining if Oscar has a right to
intervene in this case. Oscar also acknowledges "there is no longer a live dispute" over
whether he may retain a private attorney.
- 10- 7711
----------------------- Page 11-----------------------
2. Child's preferences in custody cases
Beyond the appointment statute's provision for the court's discretion in
determining when to appoint counsel or a GAL for a child in a custody case, we observe
that Alaska's custody-related statutory framework provides instruction about how and
when a court should consider a child's preferences. Moreover, when a court seeks
information about a child's preferences, there are multiple ways in which the court may
obtain such information. The court's ability to receive information about the child's
preferences does not require that the child participate as a party in the custody case.
Under AS 25.24.150(c) the court must consider the child's best interests
in determining custody. Among many best interest factors the court must consider is
"the child's preference if the child is of sufficient age and capacity to form a
preference."18 "The superior court has discretion to determine whether a child is
capable of forming a trustworthy preference."19 We have held that "in cases where a
child does not show maturity or there is evidence that the choices were motivated by
bad reasons, the court may choose to disregard the child's preference, or to give it little
weight."20 On the other hand, we have recognized that "[a] well-reasoned preference
by a mature teenager can, in some cases, be a deciding factor."21 However, "involving
18 AS 25.24.150(c)(3).
19 Thomas v. Thomas, 171 P.3d 98, 103 (Alaska 2007) (citing Fardig v.
Fardig, 56 P.3d 9, 13 n.13 (Alaska 2002)).
20 Schaeffer-Mathis v. Mathis , 407 P.3d 485, 493 (Alaska 2017) (quoting
Michele M. v. Richard R., 177 P.3d 830, 833, 838 (Alaska 2008)) (deciding superior
court did not abuse its discretion in failing to explicitly discuss preferences of ten-year-
old- and eleven-year-old children).
21 Id. (citing Michele M., 177 P.3d at 833, 838).
- 11- 7711
----------------------- Page 12-----------------------
young children in the process of deciding child custody matters is generally not
appropriate."22
Both Alaska's statutory scheme for deciding child custody, and our
precedent interpreting that statutory framework, recognize the role that a child's
preferences may occupy in custody litigation, without the need for the child to
intervene.23 Where the child is a teenager like Oscar, the court is more likely required
to consider the child's preferences.24 But the court still has discretion in how much
weight to give the child's preferences amidst the other best interest factors. A court
need not prioritize a 13-year-old child's, or even an older child's, preferences if the
child is immature or unduly influenced by others.25 Alaska law thus provides for the
court's consideration of a child's preferences in determining custody without requiring
that the child participate as a party. Indeed, a child's participation as a party in custody
litigation in order to advocate for his preferences would seem to elevate the child's
22 McLane v. Paul, 189 P.3d 1039, 1044-45 (Alaska 2008) (deciding
preferences of six-year-old child in custody proceeding deserve less weight (quoting
Joan B. Kelly, Psychological and Legal Interventions for Parents and Children in
Custody and Access Disputes: Current Research and Practice, 10 VA. J. SOC. POL'Y
& L. 129, 151 (2002))).
23 See AS 25.24.150(c)(3).
24 See Valentino v. Cote, 3 P.3d 337, 340-41 (Alaska 2000) (considering
preferences of mature and articulate 14-year-old); Sheffield v. Sheffield, 265 P.3d 332,
335-36 (Alaska 2011) (considering preferences of 14-year-old where there was no
evidence of immaturity or undue influence by father); Yvonne S. v. Wesley H., 245 P.3d
430, 435 (Alaska 2011) (considering preferences of 14-year-old who "was mature,
made good decisions, and had legitimate reasons for her custody preference").
25 See Jenkins v. Handel, 10 P.3d 586, 590-91 (Alaska 2000) (declining to
prioritize 13- and 15-year-old children's preferences in custody dispute because they
were unduly influenced by other adults and older sibling); Michele M. , 177 P.3d at 833,
838 (declining to prioritize 14-year-old child's preference in custody dispute because
he was too manipulative and his preference was motivated by bad reasons).
- 12- 7711
----------------------- Page 13-----------------------
preferences at the expense of other best interest factors and to the detriment of the
child's overall best interests.
To be clear, it is important that a court be able to understand a mature
child's preferences and best interests, but there are multiple ways in which trial courts
can obtain information both about a child's preferences and best interests without
making the child a party that hears and participates in all aspects of his parents' custody
case. The court can obtain information about the child's best interests from the parents
and from a myriad of other sources, such as witnesses, exhibits, and, where present, the
GAL. Here both of Oscar's parents advocated for his interests, and Marilyn adopted
Oscar's position as her position on interim custody. Oscar's GAL also provided
multiple reports and recommendations related to Oscar's best interests.
Separately, there are a variety of tools available to the superior court to
assist in discerning and understanding a child's preferences. The court can interview
the child in various ways, including by conducting a direct interview with the child, by
ordering an interview by a court professional for the child's preference, or by appointing
an independent expert to investigate custody issues.26 Those are just some of the ways
in which a court can learn about a child's preferences. Here, although the Parenting
Plan Resolution Office was twice unable to complete a child preference interview,
Oscar's preferences were presented to the court multiple times by the GAL, and were
reiterated in Oscar's filings. The court was therefore able to consider Oscar's
preferences in making its best interest determination and did not err in denying his
27
motion to intervene.
26 See Alaska R. Civ. P. 90.6.
27 See AS 25.24.150(c)(3); cf. J.A.R. v. Superior Ct. in & for Cnty. of
Maricopa, 877 P.2d 1323, 1330-31 (Ariz. App. 1994) (denying child's motion to
intervene and concluding child's interests are adequately represented through court
- 13- 7711
----------------------- Page 14-----------------------
B. The Court Did Not Err Or Abuse Its Discretion In Denying
Intervention As Of Right And Permissive Intervention.
Alaska's rules regarding intervention do not clearly address a child 's
participation in a custody dispute,28 but given that Oscar framed his request as a motion
to intervene, we address the rules' application here.
1. Intervention as of right
Under Alaska Civil Rule 24(a) a court uses a four-part test to determine
whether an applicant may intervene as of right:
(1) the motion must be timely; (2) the applicant must show
an interest in the subject matter of the action; (3) it must be
shown that this interest may be impaired as a consequence
of the action; and (4) it must be shown that the interest is not
[29]
adequately represented by an existing party.
Oscar states he has a "right to consortium with his parents" that he seeks
to vindicate in this suit. Oscar claims he "is entitled to intervene as of right" because
his interests are not adequately represented by the parties. He argues that the GAL does
not adequately represent him because "the GAL's interests are adverse to [Oscar's]
preferences and his perception of his best interests." He also contends that his mother,
rules and statutes requiring court to consider child's preferences, allowing court to
interview child, and permitting court to appoint attorney for child).
28 We apply Alaska Civil Rule 24 in deciding whether non-parties may
intervene in custody disputes; however, our precedent only addresses a person serving
a parenting role seeking to intervene. See Dara v. Gish , 404 P.3d 154, 161 (Alaska
2017) (allowing grandparent to intervene); Elton H. v. Naomi R., 119 P.3d 969, 979
(Alaska 2005) (allowing grandparent to intervene); Kinnard v. Kinnard , 43 P.3d 150,
153-54 (Alaska 2002) (allowing stepparent to intervene); Buness v. Gillen , 781 P.2d
985, 988 (Alaska 1989) (allowing stepparent to intervene), overruled on other grounds
by Evans v. McTaggart, 88 P.3d 1078, 1085 n.34 (Alaska 2004). Our precedent does
not directly address a child intervening in his parents' custody litigation.
29 Hopper v. Est. of Goard, 386 P.3d 1245, 1247 (Alaska 2017) (quoting
State v. Weidner, 684 P.2d 103, 113 (Alaska 1984)) (citing Alaska R. Civ. P. 24(a)).
- 14- 7711
----------------------- Page 15-----------------------
father, and the GAL have no incentive or obligation to zealously advocate for his
preferences.
Oscar does not meet the requirements to intervene as of right under Civil
Rule 24(a). Even assuming without deciding that Oscar has met the first three
requirements, by filing a timely motion and identifying an interest in the litigation that
may be impaired, 30 he does not meet the fourth requirement to intervene as of right,
because his interest is adequately represented by existing parties.31 Both of Oscar's
parents are participating vigorously in this litigation, and his GAL has expressed and
advocated for his best interests. Oscar maintains his parents do not represent his
interests because both want sole custody. However, Marilyn's stated position aligns
with Oscar's interim custody position. And to the extent Oscar's stated interest in the
litigation requires understanding of his preferences, the GAL has explained Oscar's
preferences to the court and identified where Oscar's preferences diverge from the
GAL's recommendations on best interests. We further note that courts in other states
have similarly denied a child's motion to intervene as of right because the child's
interests were adequately represented by the parents or a GAL.32 We conclude the
superior court did not err in denying Oscar's motion to intervene under Rule 24(a).
30 See id.
31 See id.
32 See In re Stapleford , 931 A.2d 1199, 1201-02 (N.H. 2007) (concluding
GAL sufficiently represented child's interests); Frank v. Frank, 833 A.2d 194, 196-97
(Pa. Super. 2003) (determining children's interests were adequately represented by their
testimony, their parents, and their legal guardians); Auclair v. Auclair, 730 A.2d 1260,
1269-70 (Md. Spec. App. 1999), abrogated on other grounds by Fox v. Wills, 890 A.2d
726 (Md. 2006) (deciding GAL adequately represented children's best interests "even
though the children may not agree with [the GAL's] best-interest recommendation");
Loll v. Loll, 561 N.W.2d 625, 630-31 (N.D. 1997) (deciding parents adequately
represented child's interests); Miller v. Miller , 677 A.2d 64, 70 (Me. 1996) ("The
- 15- 7711
----------------------- Page 16-----------------------
2. Permissive intervention
Under Civil Rule 24(b) a court may permit a party to intervene if the
applicant timely moves to intervene and the "applicant's claim or defense and the main
action have a question of law or fact in common." The court must also "consider
whether the intervention will unduly delay or prejudice the adjudication of the rights of
33
the original parties."
The court denied Oscar's motion to intervene in part because it determined
that allowing intervention would complicate the proceeding. The court explained that
granting the motion "would add an additional advocate who would seek to question and
perhaps present witnesses. The attorney might seek additional discovery, make
objections and file motions, and an additional schedule would need to be considered"
in convening hearings. The court also questioned what implications would arise from
making Oscar a party, such as whether he would have the right to appeal or later seek
to modify the order. The court concluded that "all of these issues could further
complicate this proceeding, and lead to further delay which is not in Oscar's best
interest."
Oscar argues that even if he is not entitled to intervene as of right, the
court abused its discretion in denying permissive intervention. He contends that the
court incorrectly speculated about the complications and delay that may result from his
intervention when the law only permits consideration of whether the intervention would
unduly delay or prejudice the parties. He claims this case has already been delayed
multiple times and the trial court can place time limits to avoid undue delay. Oscar
further argues that the court should not be concerned with the implications of his
guardian ad litem is already an advocate for the best interest of the children in all of its
complex dimensions."); In re Marriage of Hartley , 886 P.2d 665, 674-75 (Colo. 1994)
(deciding GAL adequately represents best interests of child).
33 Alaska R. Civ. P. 24(b).
- 16- 7711
----------------------- Page 17-----------------------
intervention, and that he would only be able to seek modification in the future upon
showing of a "substantial change in circumstances," as with any other party seeking to
modify a custody order.
Again assuming without deciding that Oscar met the other elements
necessary for permissive intervention, the court did not abuse its discretion in denying
Oscar's motion, because allowing Oscar to intervene would likely lead to undue delay
and prejudice to the parties. This case has stretched on for about two years, with many
34
motions and filings, and Oscar's intervention would likely delay proceedings further.
We observe that the statutory scheme governing child custody requires the court to
consider a child's stability and continuity in its best interests analysis, and we note that
35
hearing and deciding cases expeditiously can help to preserve stability for the child.
We further note that courts in other states have expressed similar concerns that allowing
children to intervene would overly complicate divorce and custody proceedings.36 Here
the court's concerns regarding the delay and complication that would result from
intervention were reasonable and supported by the record.
Perhaps more importantly, allowing Oscar to intervene as a party in his
parents' custody case would very likely prejudice Shawn and Marilyn and harm their
34 See Alaskans for a Common Language, Inc. v. Kritz , 3 P.3d 906, 916
(Alaska 2000) ("[A]dditional parties are always the source of additional questions,
briefs, objections, arguments and motions." (alteration added) (quoting Weidner, 684
P.2d at 114)).
35 See AS 25.24.150(c)(5); Schuyler v. Briner, 13 P.3d 738, 742 (Alaska
2000) ("Because family law strives to create stability for children, courts should not
encourage unnecessary hearings in custody cases.").
36 See Miller , 677 A.2d at 70 ("Divorce litigation would be complicated
exponentially by the involvement of children as parties."); In re Hartley, 886 P.2d at
675 ("Adding another attorney to the case would overburden the courts and the parties
by increasing costs and causing delays without significantly increasing the fairness of
the proceeding.").
- 17- 7711
----------------------- Page 18-----------------------
relationships with Oscar. The statutory best interest factors include considering the
"willingness and ability of each parent to facilitate and encourage a close and continuing
relationship between the other parent and the child."37 The court expressed concerns
about the strain the custody case has already had on Oscar's relationships with his
parents. Particularly given findings the superior court has already made regarding the
nature of this litigation and concerns about manipulation of Oscar, allowing Oscar to
participate as a party would very likely add further strain to his relationships with his
parents. Indeed, allowing Oscar to become a party litigating in the custody case would
likely undermine his best interests on many levels.
For all of these reasons we conclude that the court did not abuse its
discretion in denying permissive intervention.
CONCLUSION
We AFFIRM the superior court's order denying Oscar's motion to
intervene.
37 AS 25.24.150(c)(6).
- 18- 7711
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
