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Fardig v. Fardig (10/4/2002) sp-5638
Fardig v. Fardig (10/4/2002) sp-5638
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KRISTINE M. FARDIG, n/k/a )
KRISTINE M. OWEN, ) Supreme Court No. S-10028
)
Appellant, ) Superior Court No.
) 3AN-94-8214 CI
v. )
) O P I N I O N
EARLE FARDIG, )
) [No. 5638 - October 4, 2002]
Appellee. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Sen K. Tan, Judge.
Appearances: Kristine M. Owen, pro se,
Bakersfield, California, Appellant. Darryl
L. Jones, Law Office of Darryl Jones,
Anchorage, for Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
BRYNER, Justice, with whom MATTHEWS, Justice,
joins, dissenting in part.
I. INTRODUCTION
Kristine Owen (formerly Fardig) appeals a modification
of custody rights denying her custody of her minor children. She
claims that the doctrines of res judicata and collateral estoppel
precluded the trial court from considering her drug abuse.
Moreover, she argues that the superior court improperly weighed
the evidence in making its decision. The superior courts
decision satisfies the appropriate standard of review and is
therefore affirmed.
II. FACTS AND PROCEEDINGS
Kristine Owen and Earle Fardig separated in September
1994. They divorced August 16, 1995. Owen and Fardig had been
married for twenty-seven years during which time they had eight
children together. Of those children, only three Anna Fardig,
born April 9, 1985; Bethany Fardig, born April 4, 1988; and Edith
Fardig, born January 12, 1990 are presently under the age of
eighteen. Due in part to evidence of domestic violence by
Fardig, Owen was granted custody of the five minor children at
the time the above three plus Sarah Fardig, born March 3, 1980,
and Andrew Fardig, born November 24, 1982 and awarded
appropriate child support.
In July 1996, approximately ten months after the
divorce decree was issued, Fardig moved for a modification of
custody, claiming that Owens substance abuse impaired her ability
to care for the children. Based on a report by a custody
investigator indicating that Owen may be abusing alcohol, pain
killers and other controlled substances, Superior Court Judge
Peter A. Michalski issued an order on December 18, 1996 granting
interim custody to Fardig.1 Owen was ordered to undergo an
assessment for drug, alcohol, and narcotics addiction.
Superior Court Judge Sen K. Tan denied Owens subsequent
motion for interim custody on May 7, 1999, although Owen was
granted weekend visitation with daughter Edith. At the June 2000
hearing on Fardigs motion to modify custody, the court learned
that Owen had moved to California. Judge Tan subsequently
entered a final custody decree, giving sole legal and primary
physical custody of Andrew, Anna, Bethany, and Edith to Fardig.
Only the custody of Bethany and Edith was in dispute, as Owen had
agreed that it was best for Andrew and Anna to remain with their
father. Judge Tan found that Owens move to California
constituted a substantial change in circumstances. Owen was
granted only supervised visitation with the children in Alaska,
with the possibility of summer visitation dependent upon a drug
and alcohol assessment.
Owen appeals Judge Tans custody decree, although she
now only contests custody of Edith.
III. STANDARD OF REVIEW
We will not reverse the superior courts decision to
modify custody unless there has been an abuse of discretion or
the controlling factual findings are clearly erroneous.2 An
abuse of discretion is established where the superior court
considered improper factors in making its custody determination,
failed to consider statutorily mandated factors, or assigned
disproportionate weight to particular factors while ignoring
others.3 A factual finding is clearly erroneous when a review of
the record leaves the court with a definite and firm conviction
that the superior court has made a mistake.4 Issues of res
judicata and collateral estoppel are questions of law which we
review de novo.5
IV. DISCUSSION AND ANALYSIS
A. The Issue of Owens Alleged Drug Abuse Is Not Barred by
Res Judicata or Collateral Estoppel.
Fardig based his motion for modification of child
support in part on claims that Owen was abusing drugs. Owen
argues that this issue was dismissed with prejudice by Superior
Court Judge Rene J. Gonzales at a July 21, 1995 domestic violence
hearing. However, there is nothing in Judge Gonzaless interim
order to support this claim. Moreover, Owens res judicata and
collateral estoppel claims lack merit because consideration of
Owens drug use in the context of a motion to modify custody does
not relitigate a past decision. Indeed, Fardig points to Owens
drug abuse as a substantial change in circumstances. In other
words, Owens alleged drug abuse was not being relitigated.6
B. Judge Tan Had Sufficient Evidence To Find that Owens
Move to California Constituted a Change in
Circumstances.
Owen contends that Judge Tan should not have placed
weight on her move to California in determining custody because
neither party raised this issue and because the move was
temporary, made for the purpose of helping an ill mother-in-law.
A finding of a substantial change in circumstances is necessary
before a custody modification hearing can be held.7 Judge Tan
listed Owens move to California as the substantial change in
circumstances that justified the custody modification hearing.
We have previously held that a move to another state constitutes
a substantial change in circumstances.8 Judge Tan commented that
although the move was a temporary relocation, it could last for
another year to eighteen months.
The evidence before the court was sufficient to support
the conclusion that the move was potentially long-term. Due to
the fact that Owen was requesting summer visitation, the move
could reasonably have been interpreted as less temporary than
Owen herself contends. Furthermore, when asked how long she
intended to stay in California, Owen, who was participating
telephonically at the June 2000 hearing, testified first that it
might be one to two years and later stated that she was not sure
if she will ever come back to live in Alaska. Consequently, it
was not clearly erroneous for Judge Tan to find a substantial
change in circumstances meriting a reconsideration of custody.
C. Judge Tan Had Sufficient Evidence To Support a Change
of Custody as Being in the Best Interests of the
Children.
Owen challenges the allegation of drug and alcohol
abuse on the ground that there was insufficient evidence
introduced at the June 12, 2000 custody trial to support the
allegation and the subsequent change in custody. Owen points to
two doctors letters saying she was not abusing drugs or alcohol
and claims that Fardig presented no evidence to the contrary.9
While Judge Tan did find evidence of drug and alcohol abuse, it
is clear from his oral findings that this was not the only factor
relevant to his decision.
Though the written findings are rather cursory, Judge
Tan made extensive oral findings of fact to support his order
changing custody from Owen to Fardig.10 Judge Tan determined the
best interests of the children by discussing each of the
statutory factors listed in AS 25.24.150(c).11 The first factor
discussed by Judge Tan was the physical, emotional, mental,
religious, and social needs of the child. He found that Bethany
and Edith, the only children whose custody was in dispute, needed
emotional support, a stable home, and unconditional love. For
the next factor, the ability of the parents to meet the needs of
their children, Judge Tan found that Fardig provided a better
environment for the children, noting that Fardigs living
situation seemed more stable, that he provided them with
sufficient food and clothing, and that he was sending the
children to see a therapist. Judge Tan worried that until Owen
settled into a more permanent living arrangement, she would not
be able to provide the support that the children needed.12
Judge Tan next noted that because Bethany and Edith
were only twelve and ten years old he did not feel it would be
appropriate to take their preferences into consideration.13 Judge
Tan found that the factor of love and affection toward the parent
was also inconclusive, since each child expressed love and
affection for both parents. For the factor of length and
stability of living arrangements, Judge Tan found that both of
the children were happy living in Anchorage and had a good group
of friends here. Judge Tan next found that each parent had a
difficult time allowing the children to have an open relationship
with the other parent. Judge Tan found that there was
insufficient evidence to conclude that either parent had
committed domestic violence.
Judge Tan next addressed the drug use by each parent.
Judge Tan focused on the fact that Fardig had been in an eight-
month substance abuse program and had attended meetings of
Alcoholics Anonymous and Narcotics Anonymous as evidence that he
was getting his drug problem under control. Judge Tan chastised
Owen for not making similar efforts. Judge Tan considered the
two doctors letters that Owen submitted to be unsworn statements
because neither doctor testified at trial. Judge Tan further
noted that the letters were unclear about what medications Owen
was taking and what testing and drug assessment she was
undergoing.14 Consequently, the trial court found little value in
the letters.
Further support for Judge Tans conclusion can be found
in the trial testimony of Janice Bernzott, a therapist who had
previously counseled Andrew Fardig and was continuing to counsel
Bethany and Edith Fardig at the time of the trial. Bernzott, who
has a masters degree in clinical psychology and a nursing degree,
testified, based on comments that the children made to her, that
she believed that Owen was currently using drugs.15
Earle Fardig testified that Owen refused to enter the
same treatment program that Fardig had earlier undergone for
addiction to prescription drugs; furthermore, Fardig testified
that Owen even denied that she had a problem. Andrew Fardig,
their son, testified that his mother was very manipulative and
frequently seemed to be on something. Jennifer Fardig, their
daughter, testified that her father did not smoke marijuana or
abuse alcohol and that he would not let the children smoke
cigarettes. In addition, Jennifer related a conversation in
which her mother discussed being beaten by her husband, Bob Owen,
and using drugs with him. This testimony further supports Judge
Tans finding of possible drug use by Kristine Owen.
Finally, Judge Tan concluded it was in the best
interests of Bethany and Edith to be kept together and with their
other siblings because of the emotional support that the siblings
provided for each other.
In sum, the evidence does not support Owens claim that
Judge Tans findings on the statutory factors involved in
determining the best interests of the children were clearly
erroneous.
D. There Is Evidence in the Record To Support the Trial
Courts Finding that Owens Visits with Her Children Be
Supervised.
Under J.F.E. v. J.A.S., unsupervised visitation by
parents is the norm.16 A requirement of supervised visitation
must be supported by findings that specify how unsupervised
visitation will adversely affect the childs physical, emotional,
mental, religious, and social well-being.17 Bernzott testified
that Owen should have unsupervised visits with her children only
after a psychological evaluation and drug assessment of Owen and
even then only after a transitional therapy period involving both
Owen and the girls. When Owen confronted Bernzott with the
letter from Dr. Beirne stating that she was not using drugs,
Bernzott testified that this was not consistent with statements
the children had made to her. Bernzott concluded by stating: My
clinical opinion is that the children would best be served by
supervised contact with [Owen]. Although Owen has not previously
been required to have supervised visitation with her children,
the testimony at trial provides support for Judge Tans decision
to require supervised visitation.
Moreover, we have previously stated that we prefer that
a court ordering supervised visitation also specify a plan by
which unsupervised visitation can be achieved.18 Judge Tan
outlined such a plan when he directed that Owen undergo a
rigorous clinical assessment showing she was clean and sober
before he would consider, upon motion by Owen, unsupervised
visitation.19 Consequently, Owen has been provided with a means
for regaining unsupervised and summer visitation of Edith should
she wish to do so.
V. CONCLUSION
Owens res judicata and collateral estoppel claims lack
merit because consideration of Owens drug use in the context of a
motion to modify custody does not relitigate a past decision.
Owen has failed to demonstrate that the superior court abused its
discretion or was clearly erroneous on a factual determination
with regard to the modification of custody. Consequently, this
aspect of the superior courts decision is AFFIRMED. The
requirement of supervised visitation for Owen is supported by
evidence at trial and is also AFFIRMED.
BRYNER, Justice, with whom MATTHEWS, Justice, joins, dissenting
in part.
I join todays opinion in concluding that the superior
court did not abuse its discretion by awarding physical custody
of Bethany and Edith to Fardig. But because our case law
unequivocally requires express findings explaining the need for
supervised visitation, because the superior court failed to
comply with this requirement, and because the record establishes
a need for specific findings here, I would remand the visitation
order and would direct the superior court to specify how Bethany
and Edith would be harmed by having unsupervised visitation with
their mother, Owen.
In J.F.E. v. J.A.S. decided just five years ago this
court articulated the legal standards that must be met in a
private custody proceeding before a court may restrict parental
visitation by requiring third-party supervision; we concluded
that Alaska law makes unsupervised visitation the norm in such
cases and that supervised visitation may be ordered only when the
trial court makes express findings specifying why supervision is
actually necessary to protect the childrens best interests:
[Alaska Statutes] 47.10.084 recognizes in the
context of child-in-need-of-aid proceedings
that noncustodial parents have certain
residual rights and responsibilities
including the right and responsibility of
reasonable visitation. AS 47.10.084(c). It
follows that a similar residual right of
reasonable visitation should exist in private
custody proceedings since parents in such
proceedings are no less deserving of contact
with their children than parents of children
whose custody has been committed to the
state.
Based on these provisions and on the
statutes dealing with child custody, we infer
that the best interests of the child standard
normally requires unrestricted visitation
with the noncustodial parent. Therefore, an
order requiring that visitation be supervised
must be supported by findings that specify
how unsupervised visitation will adversely
affect the childs physical, emotional,
mental, religious, and social well-being and
the other interests set out at AS
25.24.150.[1]
Todays opinion silently overrules this precedent by
disregarding its unequivocal command that, before imposing a
supervision requirement on parental visitation, the trial court
must make express findings explaining how unsupervised visits
would violate the childrens best interests. For the superior
court utterly neglected to specify how unsupervised visitation by
Owen would adversely affect Bethanys and Ediths physical,
emotional, mental, religious, or social well-being; indeed,
though the superior court comprehensively addressed the childrens
best interests in deciding to award primary physical custody to
Fardig, it failed even to mention their best interests in
summarily imposing Owens supervised visitation requirement. Nor
does the trial courts discussion of the childrens best interests
in its custody findings explain its separate and conceptually
different decision to require supervised visitation. Although
the custody findings do explain why the court believed Fardig to
be a better custodial parent than Owen, they contain nothing akin
to a finding that unsupervised visitation would actually harm
either child or adversely affect the childrens best interests.
Yet this courts opinion glosses over this glaring
deficiency, as if J.F.E.s holding meant nothing at all: without
any attempt to justify the absence of express findings (indeed,
without even acknowledging the superior courts failure to make
J.F.E. findings), the opinion proceeds to tackle the fact-finding
problem on its own, combing the record for traces of evidence
that might have supported a supervised visitation requirement;
and after considerable stretching and straining, the most the
court can say is that Bernzotts expert testimony provides support
for the superior courts decision.2 But this minimal appellate
finding of fact hardly fills the void left by the trial courts
failure to make appropriate findings, for it lands well short of
the mark established in J.F.E., which demands findings that
specify how unsupervised visitation will adversely affect the
childs physical, emotional, mental, religious, and social
well-being and the other interests.3 Thus, todays opinion simply
adds this courts own name to the list of other participants in
the case Fardig, Bernzott, and the superior court judge who
have been unable to comply with J.F.E.s standard. And this
courts failure is especially glaring, since the standard it
violates is its own creation.
To be sure, the trial courts failure to make express
findings in compliance with J.F.E. might be excused were it clear
that Bernzotts testimony had a solid factual basis, that her
testimony showed how unsupervised visitation would harm Bethany
and Edith, and that the trial court actually found this testimony
convincing. But the record supports none of these inferences.
Bernzotts testimony that the childrens best interests would be
served by unsupervised visitation was itself wholly conclusory.
It addressed none of the statutory best interests factors and
offered no meaningful explanation to support Bernzotts expert
opinion; moreover, when asked to describe her factual basis for
concluding that Owen suffered from substance abuse problems,
Bernzott could point to only two equivocal statements by Edith,
which Bernzott interpreted as references to drug use or
impairment.4
Notably, the superior court neither expressly nor
implicitly accepted Bernzotts testimony as credible proof that
Owen suffered from a substance abuse problem or posed a danger to
her children. To the contrary, the courts oral comments
demonstrate that it found insufficient evidence to allow any
meaningful conclusions on these issues. In evaluating the
statutory best interests factor of parental drug abuse for
purposes of awarding custody, for example, the court noted:
Ms. Owen presents me with a tough problem.
So far, I have two letters two letters from
two doctors. [The] first is by Dr. Mike
Beirne . . . . I dont know what underlies it.
I tell you what my problem is: both doctors
did not testify here in person. I have
essentially an unsworn statement by 2 doctors
that . . . dont tell me very much. I dont
know exactly what [each doctor] has done.
What I find critically lacking here is
anybody who can get on the stand and testify
and tell me one way or the other, you know,
what medications Ms. Owen is on, what sort of
testing procedures she has undergone, what
sort of assessment, and what is essentially
the situation with the drugs.[5]
Far from concluding that credible evidence of drug use
by Owen existed, then, the trial court expressly acknowledged
that the evidence on this issue was speculative. But the court
nonetheless faulted Owen for failing to disprove these
speculative allegations:
Ms. Owen says, Oh well, thats all
speculation. Well, sometimes the best way to
refute speculation is to have somebody come
into court to state under oath whats going
on. Thats credible, reliable evidence. So
although I see those letters, Im not going to
put much credibility into [them] because I
dont know exactly the contours of those
things.
The court returned to this theme later: in imposing
Owens supervised visitation requirement, despite its express
recognition that the evidence of Owens substance abuse was
speculative, the superior court took the view that Owen should be
restricted to supervised visitation unless and until she
affirmatively proved that she would not pose any danger:
I have considered the issue of
visitation. Im going to essentially allow
visitation after these conditions have been
met: Ms Owen, I know you dont want to hear
this. You think Judge Michalski dealt with
this question. But I tell you what. It
hasnt been dealt with . . . to my
satisfaction. I want a drug and alcohol
assessment. Okay. I want somebody telling
me that they have assessed you. And you have
been assessed clean and sober. That you dont
need any drug treatment. Its been years. I
havent really seen any proof that that has
occurred. You send me two letters. Im
telling you now they are insufficient. Youve
gotta do better. If you think youre really
clean, it should be very easy. It shouldnt
take you very long to submit that evidence to
the court. Okay. Then well do a follow up
and Ill decide what sort of visitation you
shall have. Because until that time, Im
going to essentially restrict you to
supervised visitation.
Hence, the superior court decreed a strict regime of
supervised visitation not because it was persuaded by credible
evidence that supervised visitation was needed to prevent harm to
the childrens best interests, but rather because Owen had failed
to prove her own innocence; she had failed to convince the court
that unsupervised visitation would not harm her children. As
Judge Tan himself tellingly put it, What I find critically
lacking here is anybody who can . . . tell me one way or the
other . . . what is essentially the situation.
In my view, this finding strongly suggests that the
superior court restricted Owen to supervised visitation because
it believed that she bore the burden of overcoming speculative
assertions of possible drug use by affirmatively proving her
fitness to engage in risk-free unsupervised visitation. Even
though Owen had parented eight children over a marriage spanning
some twenty-seven years and had not been credibly shown to have
caused them any actual harm, the trial court required her to
prove to its satisfaction that unsupervised visitation would be
in her childrens best interests. Yet this requirement cuts
directly against our decision in J.F.E., which adopts
unsupervised visitation as the norm in the absence of affirmative
proof to the contrary and categorically precludes restrictions
imposing supervised visitation unless the trial court expressly
specifies how unsupervised visitation would adversely affect the
childrens best interests.
In summary, then, nothing in the record excuses the
trial courts failure to comply with J.F.E.s requirement of
express findings focusing on the need for supervised visitation.
Because the trial court failed to specify any adverse effect that
unsupervised visitation might actually have on the childrens best
interests, and because it appears instead to have mistakenly
shifted to Owen the burden to refute speculation, I would vacate
the supervised visitation requirement and remand for
reconsideration, allowing the restriction on Owens visitation
rights to be reimposed only upon the entry of findings in
compliance with J.F.E.s standards.
I thus dissent from this courts decision affirming the
supervised visitation order.
_______________________________
1 Sarah Fardig, being no longer a minor, was not subject
to this order.
2 Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000).
3 Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska
1998).
4 Id.
5 Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631,
633 (Alaska 1999).
6 Owen also asserts that at the July 29, 1996 hearing,
Judge Michalski improperly placed the burden of proof on her to
show that she did not abuse drugs. Owen is correct that the
burden of proving a substantial change in circumstances necessary
for custody modification is on the moving parent. S.N.E. v.
R.L.B., 699 P.2d 875, 878 (Alaska 1985). However, the custody
investigators report that preceded the interim custody order
essentially provided evidence of Owens drug abuse. Fardig does
not claim to be exempt from the burden of persuasion but insists
instead that he satisfied it. The evidence, namely the custody
investigators report, is sufficient to show that Judge Michalski
was not clearly erroneous in concluding that there was a strong
possibility that Owen abused drugs.
7 AS 25.20.110(a) (An award of custody of a child or
visitation with the child may be modified 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.); see also Barrett v. Alguire, 35 P.3d 1, 5 (Alaska 2001).
8 House v. House, 779 P.2d 1204, 1207-08 (Alaska 1989).
Owen correctly points to House to support the proposition that it
can be in the best interests of the child to be in the custody of
the parent who is moving out of the state. This, though, does
not lend any support to her assertion of custody other than to
say that it is a possibility.
9 Owen further contends that Judge Tan abused his
discretion by failing to give proper weight to a taped
conversation in which her son Jon discusses selling marijuana to
his father, Earle Fardig. Judge Tan did accept the tapes as
evidence, but apparently did not consider this evidence to be
sufficient under AS 25.24.140(c)(8) to award custody to Owen over
Fardig as being in the best interests of the children. The
statute provides as a factor in determining the best interests of
the child evidence that substance abuse by either parent or other
member of the household directly affects the emotional or
physical well-being of the child. By invoking an abuse of
discretion standard in this particular situation, Owen must show
that Judge Tan gave disproportionate weight to particular factors
while ignoring others. Siekawitch v. Siekawitch, 956 P.2d 447,
449 (Alaska 1998). While perhaps Judge Tan might have ordered
some sort of drug assessment for Fardig, Judge Tan did not
clearly give disproportionate weight to the relative drug use of
Owen as compared to that of Fardig for reasons that will be
discussed below.
10 Judge Tan commented that because the custody
investigator did not testify at trial, the custody report relied
upon below was used only as background support. Judge Tan stated
that he made his decision based on the evidence that has been
presented in court and testified to.
11 The statute provides:
(c) The court shall determine custody
in accordance with the best interests of the
child under AS 25.20.060 - 25.20.130. In
determining the best interests of the child
the court shall consider
(1) the physical, emotional, mental,
religious, and social needs of the child;
(2) the capability and desire of each
parent to meet these needs;
(3) the childs preference if the child
is of sufficient age and capacity to form a
preference;
(4) the love and affection existing
between the child and each parent;
(5) the length of time the child has
lived in a stable, satisfactory environment
and the desirability of maintaining
continuity;
(6) the desire and ability of each
parent to allow an open and loving frequent
relationship between the child and the other
parent;
(7) any evidence of domestic violence,
child abuse, or child neglect in the proposed
custodial household or a history of violence
between the parents;
(8) evidence that substance abuse by
either parent or other members of the
household directly affects the emotional or
physical well-being of the child;
(9) other factors that the court
considers pertinent.
12 A trial judge is not permitted to condition custody on
a parents ability to relocate. Moeller-Prokosch v. Prokosch, 27
P.3d 314, 317 (Alaska 2001). However, the impact of any
potential move may be taken into consideration by the court in
assessing the best interests of the child. Id.
13 Owen contends that Edith is of an age where her opinion
could be asked as to with whom she wants to live. AS
25.24.150(c)(3) requires that when determining custody the court
take into account the childs preference if the child is of
sufficient age and capacity to form a preference. Whether a
child is of sufficient age to have a meaningful preference for
one parent or the other is a question committed to the discretion
of the trial court. See Jenkins v. Handel, 10 P.3d 586, 590
(Alaska 2000). Here, a therapist testified that Edith was not
mature enough to make a decision about where to live.
14 This is not an entirely accurate statement: The letter
from Dr. Beirne states that Owen has undergone periodic urine
drug and alcohol testing and never tested positive. This does
not, though, negate the fact that Dr. Beirne did not testify
before the court.
15 In addition, Bernzott testified that Fardig
participated cooperatively in Andrews counseling, but that Owen
only came to counseling once and chose not to come back again,
despite an invitation to do so. This lends support to the
conclusion that Fardig was working toward rehabilitation but Owen
was not.
16 930 P.2d 409, 409 (Alaska 1996).
17 Id. at 413-14.
18 Monette v. Hoff, 958 P.2d 434, 437 (Alaska 1998).
19 Both Earle Fardig and Andrew Fardig testified that if
allowed to take the children to California, Owen would keep the
children there. Flight risk could potentially be a justification
for supervised visits. See Monette, 958 P.2d at 436. However,
this claim was unsupported by anything other than these vague
allegations.
1 J.F.E. v. J.A.S., 930 P.2d 409, 413-14 (Alaska 1996)
(internal footnotes omitted) (emphasis added).
2 Slip Opinion at 10-11.
3 930 P.2d at 413-14.
4 Over Owens understandable but unsuccessful hearsay
objection, Bernzott described two statements by Bethany as her
basis for believing that Owen had a substance abuse problem:
Bethany reported to me that mom had a lot of
medicine and that mom hurt a lot as far as
drug use. There was an occasion that Bethany
also reported to me she asked her mom to stop
the car because she believed her mom was
drunk was the word Bethany used. I
interpreted that to be impaired in some way.
And Bethany asked her mom to take her back
home. She would not continue in the car.
Evidently, these statements were made to Bernzott sometime
shortly after she began seeing Bethany and Edith in February 1999
more than a year before the custody hearing. Bernzott gave no
further details and failed to describe the context in which these
statements were made or to specify when the reported incidents
were alleged to have occurred. When Owen challenged the accuracy
of Bernzotts claim that Bethany made these statements, Bernzott
quickly altered her testimony and attributed the statements to
Edith instead.
5 Emphasis added.
