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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Moeller-Prokosch v Prokosch (07/27/2001) sp-5440

Moeller-Prokosch v Prokosch (07/27/2001) sp-5440

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA
                                 


FAITH M. MOELLER-PROKOSCH,    )
                              )    Supreme Court No. S-9776
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3PA-99-35 CI
                              )
CHUCK F. PROKOSCH,            )    O P I N I O N
                              )
             Appellee.        )    [No. 5440 - July 27, 2001]
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Palmer,
                    Beverly W. Cutler, Judge.


          Appearances: David A. Golter, Golter &
Logsdon, Wasilla, for Appellant.  Mary F. LaFollette, LaFollette
Legal Clinic, Anchorage, for Appellee.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          CARPENETI, Justice.

I.   INTRODUCTION
          During the course of this divorce, Faith Moeller-Prokosch
determined that she wanted to relocate to Florida to be near family
and to have access to better job prospects.  She appeals an initial
custody order that awarded the parties joint legal custody of their
son and that conditioned the award of primary physical custody to
Faith on her maintenance of the child's residence within a sixty-
five mile radius of the Anchorage residence of her ex-husband,
Chuck Prokosch.  Because the trial court did not conduct the best
interests of the child analysis in light of Faith's move to
Florida, and because the court does not have the authority to
prevent Faith's move to Florida, or to restrict her area of
residence, we vacate the child custody award and remand this matter
for consideration of custody and the best interests of the child in
light of Faith's move to Florida.
II.  FACTS AND PROCEEDINGS
          Faith Moeller came to Alaska from Florida in 1989 to help
with the Exxon Valdez oil spill cleanup.  After her arrival in
Alaska, she met Chuck Prokosch, and in 1992 the two were married. 
Their son, Jeremiah, was born two years later. 
          The marriage failed, and in January 1999 Faith filed for
divorce.  In March Faith filed a motion for an interim custody
order granting her legal and physical custody of Jeremiah and
allowing her to move back to Florida.  The court did not grant her
motion and instead issued an interim order awarding the parties
joint legal custody with primary physical custody awarded to Faith. 
Her request to relocate was implicitly denied.  The parties were
divorced in June 1999. 
          The custody trial was held in December.  Faith testified
that she wanted to relocate because she had more job opportunities
in Florida and because her family lives there.  The custody
investigator testified that it was her opinion that because of
certain self-destructive behaviors of the then-five-year-old
Jeremiah and his need for counseling, Jeremiah needed both of his
parents, and that relocating with his mother to Florida would not
be in his best interest.  
          Superior Court Judge Beverly W. Cutler awarded the
parties joint legal custody of their son.  Faith was awarded
primary physical custody.  The court set out explicit parameters
for the location of the child's residence with Faith: Faith was not
allowed to "relocate Jeremiah to a residence that is more [than]
sixty-five (65) miles from . . . Mr. Prokosch's residence, as long
as his residence is known." In the event Chuck moved outside of
the sixty-five mile area, the residence restriction would be lifted
automatically. 
          Faith appeals.
III. STANDARD OF REVIEW
          Whether the court applied the correct standard in a
custody determination is a question of law we review de novo,
determining the rule of law in light of precedent, reason, and
policy. [Fn. 1]  
IV.  DISCUSSION
     When One Parent Wants to Relocate, the Trial Court Must
Determine What Custody Arrangement Is in the Child's Best
Interests, Taking into Account the Reasons for the Relocation.

          Faith contends that the superior court erred in its award
of custody because it was based on the wrong legal standard.  She
argues that the award was erroneously based on the court's
consideration of "whether the move itself is in the best interests
of the child"instead of presuming the move would take place and
then determining what custody arrangement would be in the child's
best interest if Faith moved to Florida and Chuck remained in
Alaska.  We agree.
          In today's mobile society, it is reasonable to expect
that in divorce cases one parent may eventually choose to relocate. 
Courts making child custody determinations in these cases face a
difficult task.  Often the definiteness of a parent's move is
uncertain or unclear, especially where the move may depend on the
court's custody determination itself.  A court may be faced with a
situation where, before an initial custody determination has been
made, a parent seeking custody will condition his or her move plans
on obtaining custody.  Or the court may be confronted with a
custodial parent who would choose not to move if he or she cannot
maintain custody.  We therefore take this opportunity to clarify
the trial court's task in these cases.
          Under the standards we have set forth in House v. House
[Fn. 2] and McQuade v. McQuade, a court making a custody
determination in cases where one parent chooses to move away from
Alaska must do so by determining what custody arrangement is in the
best interests of the child under the criteria stated in AS
25.24.150(c), including  determining whether there are legitimate
reasons for the move. [Fn. 3]
          In applying this test, the superior court must consider
the familiar factors set out by the legislature to determine
whether the custody arrangement is in the best interests of the
child. [Fn. 4]  As to the legitimacy inquiry, we have said that a
proposed move is legitimate if it "was not primarily motivated by
a desire to make visitation . . . more difficult."[Fn. 5]   The
best interests analysis necessarily will include assessing the
impact of the parent's move on the child.  For example, if the
court finds that a move is primarily motivated by the desire to
frustrate visitation, the court must take this finding into account
in its best-interests analysis.  This standard applies in both
initial custody determinations and custody determinations made on
a motion to modify. [Fn. 6]
          The court is to assess the best interests in light of all
of the relevant factors, including the impact of the move on the
child.  No Alaska law allows a court to require a custodial parent
to forego relocation if custody with that parent remains in the
child's best interests and the relocation is not for an
illegitimate reason.  We conclude that the trial court does not
have the authority to place restrictions on a parent's ability to
relocate; [Fn. 7] the custody determination must be made in light
of each parent's situation, including relocation. [Fn. 8]
          In the present case, although the trial court made
extensive findings with regard to the best interests of Jeremiah,
it did not do so in light of the fact that Faith was going to move
to Florida.  Nor did the court make findings as to whether she had
legitimate reasons for the move.  In making its conclusions, the
trial court appears to have presumed that it had the authority to
both prevent the move and restrict the region within which Faith
could live with Jeremiah.  Because the court does not have such
powers, the child custody order must be vacated.  
          
On remand, in making the best interests determination,
the court must consider (as it already has) the impact on Jeremiah
of the move to Florida. [Fn. 9]  But it must also consider all of
the best interest factors in reaching its decision.  When it has
fully considered all of the relevant factors, the court should make
its custody award.
          We therefore remand this matter for further proceedings
consistent with this opinion and in light of the parties' current
circumstances.
V.   CONCLUSION
          We REMAND this matter so that the superior court may make
its custody determination on the basis of the best interests of the
child, including due consideration of the reason for the mother's
move to Florida.
		          FOOTNOTES

Footnote 1:
      See McQuade v. McQuade, 901 P.2d 421, 423 n.3 (Alaska 1995)
(citing Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)).
Footnote 2:
     779 P.2d 1204 (Alaska 1989).
Footnote 3:
      McQuade, 901 P.2d at 424; House, 779 P.2d at 1208.
Footnote 4:
      See AS 25.24.150(c); see also McQuade, 901 P.2d at 424.
 Footnote 5:
      House, 779 P.2d at 1208.
  Footnote 6:

      See McQuade, 901 P.2d at 423 n.6.
 Footnote 7:

      Parents must be cognizant that their plans to relocate may
negatively affect maintenance of custody because of the impact of
the move on the child.
 Footnote 8:

      In cases where the certainty of the relocation is unclear,
such as this one, it is possible that the trial court might need to
make two best-interests determinations -- one assuming the parent
relocates and one assuming the parent does not.
Footnote 9:
     In this case, the trial court relied on two main findings in
its decision to award joint legal custody: (1) that "[m]oving
Jeremiah to Florida would negatively [a]ffect his relationship with
his father, and would be emotionally detrimental to him"; and (2)
that Faith's failure to recognize this harm justified denying her
sole legal custody because she was being selfish and unwilling to
promote an open and loving relationship between Jeremiah and Chuck.