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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Evans v. McTaggart (04/09/2004) sp-5794

Evans v. McTaggart (04/09/2004) sp-5794

     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

LISA MARIE EVANS,             )
                              )    Supreme Court No. S-10554
               Appellant,          )
                              )    Superior Court No.
     v.                       )    4FA-97-1549 CI
                              )
NATHAN McTAGGART,        )    O P I N I O N
                              )
               Appellee,      )    [No. 5794 - April 9, 2004]
                              )
ARTHUR and REBECCA            )
McTAGGART,                    )
               Intervenors/        )
               Appellees.          )
                              )


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Niesje J. Steinkruger, Judge.

          Appearances:    Craig   B.   Partyka,    Cook
          Schuhmann & Groseclose, Inc., Fairbanks,  for
          Appellant.   Marlin D. Smith, Law  Office  of
          Marlin     D.    Smith,    Fairbanks,     for
          Intervenors/Appellees  Arthur   and   Rebecca
          McTaggart.

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

          MATTHEWS, Justice.
                EASTAUGH,  Justice, with  whom  BRYNER,
          Justice, joins, concurring.
          FABE,  Chief  Justice, with  whom  CARPENETI,
          Justice, joins, dissenting.
I.   INTRODUCTION

           The main questions presented relate to parental rights

in  cases  where third parties make child custody and  visitation

claims.   As  to custody what must be proved is clear -  parental

unfitness  or that the welfare of the child requires  third-party

custody - but is the preponderance of the evidence standard or  a

higher  standard required?  As to visitation, a statute  requires

proof that the best interests of the child will be served, but is

this an unconstitutional interference with parental prerogatives?

We  answer  that  the clear and convincing evidence  standard  of

proof  is  required as to dispositive findings in both instances.

This  elevated  standard is needed, and is adequate,  to  protect

parental rights.

II.  FACTS AND PROCEEDINGS

           Lisa  Evans  is the mother of Shawn Evans and  Cameron

McTaggart.  Shawn was born in 1992.  Shawn's father, Eric  Evans,

was  married  to Lisa until they divorced in 1994.   Cameron  was

born  in  November 1993.  Cameron's father, Nathan McTaggart  was

never  married  to Lisa, though they lived together  periodically

until   November  1996.   Arthur  and  Rebecca  McTaggart   ("the

McTaggarts") are the parents of Nathan McTaggart.

           This action was initiated in 1997 by Nathan, who filed

a  complaint  against Lisa seeking custody of Cameron  and  child

support  from  Lisa.   Nathan accompanied the  complaint  with  a

motion  seeking interim and permanent custody of  Cameron.   Lisa

answered,   opposed  Nathan's  motion,  and   sought   an   order

recognizing  her  custody.  In November 1997 the  superior  court

entered  a  temporary order that provided that  Nathan  and  Lisa

would  share legal and physical custody of Cameron.  Both parties

were required to cooperate with the court-appointed child custody

investigator.

           The  McTaggarts moved to intervene in June 1998.  They

claimed that they had close contact with Cameron and that "[t]hey

believe  that  such contact is in Cameron's best interest."   The

final two paragraphs of Rebecca McTaggart's affidavit stated:

                My husband and I are now of the opinion
          that  we cannot insure continued contact with
          Cameron without an order from the Court.   We
          are   equally  concerned  about  Shawn,   but
          understand   that   there   may   be    legal
          impediments to the Court ordering  visitation
          with Shawn.
          
                  Arthur   and   I   reluctantly    but
          respectfully  request that you permit  us  to
          intervene  in this case so we can participate
          at  trial and look out for the best interests
          of our grandchildren.
          
           The court granted the McTaggarts' motion to intervene.

Just  prior to the scheduled trial the parties agreed  to  settle

the  case.   They  entered  into  a  child  custody  and  support

agreement  that was approved by the court.  Under  the  agreement

the  parties would have equal shared physical custody on  a  one-

week-on-one-week-off basis.  Nathan has a bi-polar  disorder  and

Lisa  suffers  from hypoglycemia.  Recognizing these  conditions,

the  agreement  provided that Nathan should remain on  medication

recommended  by his physician and that Lisa "should  consistently

seek medical treatment for herself . . . and follow the treatment

recommended  by her physician."  Lisa was required to  "take  her

medication  consistently and follow her  prescribed  diet."   The

agreement  gave Rebecca McTaggart and Lisa's mother a supervising

role   over  Nathan  and  Lisa,  stating:   "Cameron's   maternal

grandmother,  Phyllis  Dickman,  and  his  paternal  grandmother,

Rebecca  McTaggart, shall monitor mother and father respectively,

during  the  custody periods to make sure the parents are  taking

their medication and following their physician's  recommendations

concerning therapy and diet."  Child support was to be calculated

pursuant  to  the shared custody schedule of Civil Rule  90.3(b).

The  parties were to exchange child support guidelines affidavits

and specified income information.

          Some two and a half years later, in February 2001, Lisa

filed a motion to modify the custody and support agreement.   She

sought   primary  custody  of  Cameron,  claiming  that   changed

circumstances  justified the modification.   Nathan  opposed  the

motion.    The  McTaggarts  again  moved  to  intervene.    Their

unopposed  motion  was  granted.  The superior  court  ordered  a

custody investigator to submit recommendations to the court.  The

custody  investigator  filed  a report  in  September  2001  that

included  a  recommendation  that Rebecca  McTaggart  be  granted

custody  of Cameron and suggested that Shawn spend time with  the

McTaggarts.  Soon thereafter, the McTaggarts filed a  motion  for

custody of Cameron and for rights of visitation with Shawn.  Lisa

and Nathan separately opposed this motion.

          Following a four-day trial, the superior court in March

2002  entered findings of fact, conclusions of law, and an  order

that  granted  legal  and  physical custody  of  Cameron  to  the

McTaggarts  subject  to visitation rights  in  Lisa.   The  order

required both Lisa and Nathan to pay the McTaggarts $50 per month

for  child support of Cameron.  The order also granted visitation

to  the  McTaggarts with Shawn for one weekend each month  during

the  school  year  and  three weekends each month  during  summer

school  vacation.   The  specified  weekends  are  weekends  that

Cameron will also be with the McTaggarts.

           The  court's  findings supporting the order  begin  by

detailing the terms of the child custody and support agreement of

August 1998.  They note that the 1998 agreement was based in part

on the court child custody investigator's report which stated:

          Neither  parent  appears capable  of  meeting
          Cameron's  needs  without the  assistance  of
          extended  family . . . .  Cameron should  not
          be used as a rope in a tug-of-war between the
          parties  or families.  All involved  need  to
          work  together cooperatively to see that  his
          needs  are met and that he does not lose  the
          important relationships in his life.
          
Referring to the statement that "Cameron should not be used as  a

rope in a tug-of-war between the parents and families," the court

found  that  "that's exactly what has happened."  The court  also

found that Cameron was at high risk:

          He  is  an  emotionally disturbed child  with
          special needs and these are a result  of  his
          environment over the past eight years and the
          emotional way that his parents have cared for
          him  and  not cared for him.  At the  present
          time and in the past Cameron has always had a
          need  for,  but it has not been provided  for
          him, stability, consistency and nurturing.
          
The  court found that Nathan was incapable of meeting these needs

for stability, consistency and nurturing.  The findings continue:

          There are two things Cameron needs.  He needs
          the  physical and emotional stability of  one
          home; and he needs the battle to stop.  I see
          absolutely  no  likelihood  the  battle  will
          stop.  . . .  Lisa doesn't want it to happen.
          Nathan doesn't really want it to happen.
          
Concerning  Lisa,  the  court found that she  "is  not  presently

capable  of  meeting Cameron's needs" and that she "continues  to

use  Cameron and Shawn Evans as a weapon of her anger  and  spite

toward  Nathan."  The court found that Lisa had limited cognitive

ability, that she was uninvolved in Cameron's school, unaware  of

his  homework  assignments, and that she had  neglected  to  seek

needed dental care for him.

           The written findings were prepared by counsel for  the

McTaggarts,  and mostly adhere to the oral findings made  by  the

trial  court at the close of the evidence.  One finding  prepared

by counsel reads as follows:  "I find specifically when I look at

the   parents,  Nathan  and  Lisa,  that  it  would  be   clearly

detrimental for Cameron to be placed in their home."   The  court

crossed out "clearly" and initialed the cross-out.

           The  court made the following findings concerning  the

McTaggarts:  "I find that Arthur and Rebecca McTaggart have  come

forward  in this custody case reluctantly.  They have  done  what

most  grandparents  do which is hope that  the  kids  would  come

through.   They have waited and been safety nets for Cameron  and

at  this stage Cameron's condition has changed sufficiently  that

it requires a change in custody."  The court found that Cameron's

need  for  stability  "can  only be met  in  Arthur  and  Rebecca

McTaggart's home."  Summing up, the findings state:

               Cameron has higher need for consistency.
          He  doesn't take change well and, in fact, he
          shouldn't  have a lot of change.  This  is  a
          little boy that for many years now has needed
          and  now  needs  dinner  at  the  same  time,
          bedtime  at  the  same time, rules  that  are
          enforced the same everywhere and he  is  only
          going to progress if he has those things  and
          if  he  doesn't  it is very  clear  from  the
          testimony  he's going to get sicker  mentally
          and accelerate his worsening behavior . . . .
          Therefore,  this court finds,  based  upon  a
          preponderance of evidence, that it  would  be
          detrimental  for  Cameron  McTaggart  to   be
          placed  with  Nathan or Lisa, and  legal  and
          physical custody is granted to Becky and  Art
          McTaggart.
          
           Concerning  Shawn,  the court found  that  Arthur  and

Rebecca  McTaggart have been psychological grandparents to  Shawn

and  that "it is in Shawn's best interests that he have  as  much

time  with  Cameron McTaggart, his half-brother, as possible  and

that  he  be  allowed to resume his relationship with Arthur  and

Rebecca McTaggart with some limited visitation."  The court  also

found  that  the  McTaggarts  had a "very  caring  and  nurturing

relationship  with  [Shawn] as a small  child,  and  it  was  and

continues to be a loving relationship."  The court found that the

McTaggarts were not trying to take Shawn "away from Lisa  in  any

way,"  but  that they were trying to "provide him with more  love

and security and a safety net just like they have with Cameron."

III. DISCUSSION

     A.   Custody of Cameron McTaggart

           Lisa  challenges the superior court's award of custody

of  Cameron  to the McTaggarts on three grounds, one factual  and

two  legal.   She contends (1) that the court's finding  that  it

would be detrimental to Cameron to place him with Lisa is clearly

erroneous,  (2)  that  the  McTaggarts lacked  standing  to  seek

custody,  and (3) that the superior court should have  applied  a

heightened  standard  of  proof.  We conclude  that  the  court's

finding  concerning  detriment is  adequately  supported  by  the

evidence, that the McTaggarts had standing, but that the superior

court erred in applying a preponderance of the evidence standard.

We address the legal points first.

          1.   Standing

          In Buness v. Gillen, we held "that a non-parent who has

a  significant connection with the child has standing to assert a

claim for custody."1  Lisa argues that the significant connection

test  used  in Buness requires that the non-parent have  actually

assumed  the status and obligations of a parent in order to  meet

the  significant connection test.  In other words, the non-parent

must have assumed psychological or in loco parentis status.2

           While  we  question whether the significant connection

test  was  intended  to  be  merely  another  way  of  expressing

psychological  parent or in loco parentis  status,  we  need  not

flesh out the meaning of the significant connection test in  this

case.   Lisa  did  not object to the McTaggarts' intervention  or

motion  for custody on standing grounds.3  We therefore  consider

Lisa  to  be  precluded from raising on appeal  an  objection  on

standing.4

          2.   Standard of proof

           Lisa  argues  that the court applied an  inappropriate

standard  of  proof  when  it found by  a  preponderance  of  the

evidence  that placing Cameron with Lisa would be detrimental  to

him.   She contends that under Alaska law the proper standard  is

either "clear evidence" or "clear and convincing evidence."   She

also  argues  that  the  lower standard "likely  violates  Lisa's

constitutional right to raise her son."

           The  McTaggarts  argue that the preponderance  of  the

evidence  standard was appropriate and not a violation of  Lisa's

constitutional rights because they occupied at the  time  of  the

decision  "psychological parent" status with respect to  Cameron.

A psychological parent, as we stated in Carter v. Brodrick, is:

          one  who,  on  a  day-to-day  basis,  through
          interaction,  companionship,  interplay,  and
          mutuality, fulfills the child's psychological
          needs  for  an adult.  This adult becomes  an
          essential focus of the child's life,  for  he
          is  not only the source of the fulfillment of
          the  child's  physical needs,  but  also  the
          source  of  his  emotional and  psychological
          needs. . . .  The wanted child is one who  is
          loved, valued, appreciated, and viewed as  an
          essential  person by the adult who cares  for
          him.
          
                .  .  . .  This relationship may  exist
          between a child and any adult; it depends not
          upon  the category into which the adult falls
          - biological, adoptive, foster, or common-law
          -  but upon the quality and mutuality of  the
          interaction.[5]
          
           One  fundamental problem with the McTaggarts' argument

is that the court did not find the McTaggarts to be psychological

parents.   They  acknowledge that this status is  more  demanding

than  the "significant connection" status that a third party must

have  in  order to seek custody.  Since the McTaggarts  were  not

found  to  have psychological parent status, they could not  take

advantage of any unique rules that might be used in custody cases

between psychological parents and biological parents.

           Further,  there are no such rules, or  at  least  none

pertinent  to  this  case.   In J.W.  v.  R.J.  we  rejected  the

proposition that a psychological parent will have the benefit  of

standards  applicable to biological parents in  custody  disputes

with  a  biological  parent.6  Thus even if the  McTaggarts  were

psychological parents, they still would be subject to  the  rules

governing  third  parties  who  are  seeking  custody  in   cases

involving parents.

           The  parties  agree on the substance of what  must  be

proved  for  a  non-parent to prevail over a parent  in  a  child

custody  case.   The seminal case is Hickey v. Bell.7   There  we

approved of

          the  majority view which is that  as  between
          parents  and grandparents adversely  claiming
          custody of a child, either parent is entitled
          to a preference over the grandparents, unless
          it  is clearly shown that the parent is unfit
          for  the  trust, or that the welfare  of  the
          child requires it to be in the custody of the
          grandparents.[8]
          
Hickey  was  followed  by Wilson v. Mitchell,9  which  reiterated

these  requirements.   In Turner v. Pannick10  the  question  was

whether  the  "welfare  of  the child" requirement  discussed  in

Hickey  and  Wilson  could be satisfied if the non-parent  showed

that  the  child's  best interests would be  served  by  awarding

custody  to the non-parent, or whether the non-parent must  prove

"that it clearly would be detrimental to the child to permit  the

parent  to have custody."11  Turner held that the welfare of  the

child test could not be satisfied by a best interests showing and

that  what was required was a showing that parental custody would

clearly be detrimental to the child.12

           The  parties  also agree that the non-parent  has  the

burden  of  proving either that the parent is unfit or  that  the

welfare of the child (as explained in Turner) requires the  child

to  be  in  the custody of the non-parent.  But, as  noted,  they

disagree  as  to  the standard of proof that the non-parent  must

satisfy   in  meeting  these  substantive  requirements.    Their

disagreement   is  understandable  because  our   case   law   is

inconsistent.

           In  Hickey the court adopted what was stated to be the

majority  view  that  parents are entitled  to  preferences  over

grandparents  unless it is "clearly shown"  that  the  parent  is

unfit  or that the welfare of the child requires the child to  be

in  the custody of the grandparents.13  The words "clearly shown"

reflect  a  standard  of  proof  higher  than  the  preponderance

standard.14   In Wilson, also a case involving a custody  contest

between  grandparents  and  a  parent,  the  court  repeated  the

"clearly shown" formulation of Hickey.15

           In  Turner the court twice quoted the "clearly  shown"

formulation from Hickey and Wilson.16  In discussing what must be

proved  as  to  the substantive welfare of the child requirement,

the  court  held that "the non-parent must show that  it  clearly

would  be detrimental to the child to permit the parent  to  have

custody."17   Thus  Turner  contains language  that  it  must  be

"clearly shown" that the welfare of the child requires custody to

be  in  a third party and language that the welfare of the  child

requirement  means  that clear detriment to  the  child  must  be

proved.  The two formulations are not inconsistent for the former

goes  to  the  standard  of proof and  the  latter  goes  to  the

substance of what must be proved.  Substituting "clear detriment"

for  the  welfare  of  the child requirement,  the  Hickey/Turner

formulation  would  read  that a parent is  entitled  to  custody

unless  a  third party clearly shows that the parent is unfit  or

that  the  child would suffer clear detriment if  placed  in  the

custody of the parent.

           In  Britt  v. Britt the preponderance of the  evidence

standard   in  non-parent/parent  custody  disputes   was   first

announced.18   In Britt the trial court awarded  custody  to  the

grandparents.   The  trial  court  used  the  proper  substantive

standard  and  concluded  that neither parent  was  fit  to  have

custody.  But because the child had earlier been awarded  to  the

grandparents by agreement, and it was disputed as to whether  the

award  was  meant to be temporary or permanent, the  trial  court

announced  that  neither party bore a burden of proof  concerning

the facts that must be established.  On appeal, the court treated

the  award as temporary and disagreed with the trial court's view

that  neither  party should have a burden of  proof.   The  court

stated that "Turner makes clear that in such cases the non-parent

must  overcome by a preponderance of the evidence the  preference

for parental custody."19  The court also concluded that the trial

court's finding that the mother was unfit was clearly erroneous.20

           Britt's conclusion that the non-parent has the  burden

of making the substantive showing required by Turner - and Wilson

and  Hickey  -  is correct, for Turner stated that "in  order  to

satisfy  the  `welfare of the child' requirement, the  non-parent

must  show that it clearly would be detrimental to the  child  to

permit  the parent to have custody."21  But the statement by  the

Britt  court that Turner makes clear that the applicable standard

of  proof  that must be met is the preponderance of the  evidence

standard  is  puzzling.  There is no mention  in  Turner  of  the

preponderance  of the evidence standard.  The only  reference  to

standards  of proof in Turner are in the quotations  from  Hickey

and  Wilson, both of which refer to the requirement  that  it  be

"clearly shown that the parent is unfit . . . or that the welfare

of the child requires [third-party custody]."22

          The statement in Britt that the standard of proof is by

a  preponderance of the evidence has been repeated in a number of

opinions of this court.  These include Buness v. Gillen,23 J.W. v.

R.J.,24 and Todd v. Todd.25

           Despite Britt and its progeny, other cases after Britt

continued to follow the Hickey/Turner formulation.  In Carter  v.

Novotny the court stated that "[a] parent is also entitled  to  a

custodial  preference  over non-parents, unless  there  is  clear

evidence  that the parent is either (1) unfit or (2) the  welfare

of  the child requires that the child be placed in the custody of

a  non-parent."26  The Carter opinion went on to state  that  the

welfare of the child requirement is satisfied by "a finding  that

parental custody is clearly detrimental to a child."27  The Carter

opinion  cited  Britt  for the proposition that  "the  burden  of

proving  detriment  is  on the non-parent"  but  did  not  repeat

Britt's  statement concerning the preponderance of  the  evidence

standard of proof.28

           In  C.R.B.  v.  C.C. and B.C. the court discussed  the

parental  preference  doctrine,  noting  that  it  "is  a   vital

safeguard  against  enabling non-parents to  convince  courts  to

remove  children  improperly from their  parents."29   The  court

stated:

          We  apply a parental preference to avoid "the
          danger  of giving courts the power  to  award
          custody . . . to [nonparents] solely  on  the
          grounds of best interests.  If [that] is  the
          only   criterion,  then  a  judge  may   take
          children from their parents because the judge
          personally  [disapproves  of]  the   parents'
          limited  means." Turner, 540  P.2d  at  1055;
          see  also  id.  at  1054_55 (citing  chilling
          example  of  Painter v. Bannister,  258  Iowa
          1390,  140 N.W.2d 152, 154 (1966) (indicating
          disapproval  of father's bohemian  lifestyle,
          despite evidence of his care and concern  for
          child,  and  giving grandparents  custody  on
          ground  that their home provided  "a  stable,
          conventional,    middle_class,     middlewest
          background")).   Justice  Dimond   noted   in
          Turner that to let a court take a child  from
          its  parents  merely because a nonparent  can
          better  serve the court's idea of the child's
          interests  is  "a step toward a  totalitarian
          government."   Id.  at 1055_56  (Dimond,  J.,
          concurring).[30]
          
The   court   then  addressed  not  only  what  must  be   proved

substantively  to  overcome  the  parental  preference  but   the

standard by which it must be proved:

                The  parental  preference  avoids  this
          danger by requiring a nonparent not merely to
          prove by a preponderance of the evidence that
          the  nonparent  can better  serve  a  child's
          interests,  but to prove by "clear  evidence"
          that  a  parent is unfit or that his  or  her
          custody is clearly detrimental.  Carter,  779
          P.2d  at 1197.  We apply this rule, like most
          courts,  despite 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
          detrimental."[31]
          
           C.R.B.  is important for several reasons.  It  is  our

only  case  that  has  alluded to both  a  preponderance  of  the

evidence  standard  of proof and a higher -  "clear  evidence"  -

standard.   It  is  also evident that the  C.R.B.  court  made  a

deliberate  decision  that  the heightened  standard  was  to  be

preferred.   Further, the C.R.B. opinion gave  reasons  for  this

decision  - in order to reduce the danger that non-parents  would

be  preferred to parents merely because the parents have  limited

means or follow an unconventional lifestyle.

           Consistent  with C.R.B. we believe that  a  heightened

standard  of  proof  is appropriate in initial  custody  contests

between   parents  and  non-parents.32   We  conclude  that   the

heightened  standard  should be a clear and  convincing  evidence

standard.   We  choose  this  standard  rather  than  the  "clear

evidence"  standard of C.R.B. and Carter, or the "clear  showing"

standard  of  Hickey,  Wilson, and  Turner,  not  because  it  is

necessarily  substantively  different,  but  because  it  is  the

customary  formulation  of the intermediate  standard  that  lies

between  the preponderance standard and proof beyond a reasonable

doubt.33   We  thus hold that in order to overcome  the  parental

preference  a  non-parent  must  show  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.34

One  element of the welfare of the child requirement is that  the

non-parent must show that the child would suffer clear  detriment

if placed in the custody of the parent.

           We reach this conclusion for a number of reasons.   It

is  faithful to the line of cases that began with Hickey  and  is

most  recently reflected by C.R.B.  C.R.B.  reflects a deliberate

choice supported by reasons and an accurate reading of the  cases

on  which  it  relies.  Britt, on the other hand, appears  to  be

based on a mistaken interpretation of Turner and gives no reasons

for its selection of a preponderance standard.  Further, both the

majority  opinion  and  Justice Dimond's  concurring  opinion  in

Turner  warn against use of a substantive standard under which  a

judge  might  remove children from their parents because  of  the

judge's  personal  disagreement with the  parents'  lifestyle  or

because  the  parents  have limited means.   In  Turner  Justices

Dimond and Rabinowitz filed separate concurring opinions in which

they  questioned  whether  there  was  a  substantive  difference

between  choosing third-party custody because the best  interests

of a child were better served by such custody, and choosing third-

party  custody  because it would be clearly  detrimental  to  the

child  not  be  placed  with the third party.   Speaking  of  the

majority  opinion, Justice Dimond observed that  "this  seems  to

create  a dichotomy between `welfare' and `best interests'  which

is  not  easy  to  comprehend."35  If  this  is  true,  it  seems

especially desirable to impose a heightened standard of proof  in

order  to  reduce the risk of too readily overcoming the parental

preference.36

           The result we reach is consistent with the results  in

many other jurisdictions.37  Either by statute or by decision law,

numerous jurisdictions impose a standard of proof higher  than  a

preponderance  of  the  evidence in custody  contests  between  a

parent and a non-parent.  There is also contrary authority.38

                    3.   Application of the standard of proof

           Because the trial court applied a preponderance of the

evidence  standard  rather than a clear and  convincing  evidence

standard to its determination of detriment, a remand is necessary

so  the  court can consider whether the higher standard has  been

met.   The trial court also made findings that can be read to  be

findings that Lisa is "unfit for the trust," satisfying the first

element  of the Hickey test.  But the court did not specify  what

standard  of proof it used in making these findings.  On  remand,

if  the  court  intends that these findings should be  viewed  as

satisfying  the unfitness element of the Hickey test,  it  should

consider  whether they can be made under the clear and convincing

standard.   The  court also declined to find  that  it  would  be

clearly detrimental, as distinct from detrimental, for Cameron to

be  placed in Lisa's home.  As the substantive standard  required

is  clear  detriment,  the court should  consider  whether  clear

detriment has been proved.

                    4.   Factual finding of detriment

          Lisa challenges the trial court's finding that it would
be detrimental for Cameron to be placed with Lisa, and a number
of subsidiary findings.  Findings of fact may only be disturbed
on appeal if they are clearly erroneous.39  We have reviewed the
evidence and conclude that there is sufficient evidentiary
support for each of the court's findings.  We note, however, that
the trial court emphasized Cameron's need for stability.  It
seems possible that some of the instability that Cameron
experienced may be ascribed to the split physical custody
arrangement between Lisa and Nathan.  On remand, when deciding
whether the heightened standard of proof has been satisfied and
whether Cameron would suffer clear detriment if he were placed
with Lisa, the court should consider whether the instability that
Cameron has experienced was due to the split custody arrangement
and might be eliminated by primary custody with Lisa.
     B.   Visitation with Shawn

           Lisa  argues  that awarding the McTaggarts  visitation

rights  with Shawn violates her constitutional right as a  parent

to  control  the upbringing of her child.  She contends  that  AS

25.20.060(a)  is  unconstitutional.  Alaska Statute  25.20.060(a)

permits  a court in a custody dispute between parents to "provide

for visitation by a grandparent or other person if that is in the

best interests of the child."40

           Lisa bases her argument primarily on the 2000 decision

of  the United States Supreme Court in Troxel v. Granville.41  In

Troxel  the  Supreme Court reviewed a decision by the  Washington

Supreme Court that struck down a non-parental visitation statute.42

The  statute  in question permitted "any person"  to  petition  a

superior court for visitation rights "at any time" and authorized

the  court to grant visitation rights whenever "visitation serves

the  best interest of the child."43  The Washington Supreme Court

held  the  statute to be unconstitutional on its face because  it

believed  that  the  federal  constitution  permits  a  state  to

interfere  with the right of parents to rear their children  only

when  necessary to prevent harm or potential harm to  children.44

Further,  the  Washington court concluded that  the  statute  was

overbroad  in permitting "any person" to petition for  visitation

"at any time."45  The intermediate Washington Court of Appeals had

construed  the  statute to apply only when a  custody  action  is

already  pending, but the Washington Supreme Court rejected  this

interpretation.46  The Washington Supreme Court also declined  to

impose any other narrowing construction on the statute pertaining

either to standing or a heightened standard of proof.47

           The  United States Supreme Court affirmed the judgment

of  the Washington Supreme Court, but did so on different grounds

than  those  relied  on by the Washington court.   There  was  no

majority opinion.  The lead opinion authored by Justice O'Connor,

and  joined in by three other justices, held that the statute  as

applied  to  Granville - the mother - was unconstitutional.48   A

"combination of several factors" led the plurality to reach  this

conclusion.49  The factors mentioned are first that Granville was

not  found  to  be  an  unfit parent.50  Second,  the  Washington

Superior  Court did not "accord at least some special weight"  to

the  presumption that a fit parent will act in the best  interest

of her child.51  Third, there was no indication that Granville had

ever   sought   to  completely  cut  off  visitation   with   the

grandparents.52   (She  had agreed to one  visit  per  month  and

special holidays whereas the grandparents sought two weekends  of

overnight   visitation  per  month  and  two  months  of   summer

visitation.)53  The lead opinion also relied on what it described

as the "sweeping breadth of the statute,"54 noting:

          The   Washington  Supreme   Court   had   the
          opportunity to give [the statute] a  narrower
          reading,  but  it declined to  do  so.   See,
          e.g., 969 P.2d at 23 ("[The statute] allow[s]
          any  person,  at  any time, to  petition  for
          visitation without regard to relationship  to
          the   child,   without  regard   to   changed
          circumstances, and without regard to harm.");
          969  P.2d at 30 ("[The statute] allow[s] `any
          person' to petition for forced visitation  of
          a   child   at  `any  time'  with  the   only
          requirement  being that the visitation  serve
          the best interest of the child.").[55]
          
Having  relied  on  these grounds to hold the Washington  statute

unconstitutional  as applied to the case, the plurality  declined

to  consider  the  main constitutional question  decided  by  the

Washington  Supreme  Court  - "whether  the  Due  Process  Clause

requires all nonparental visitation statutes to include a showing

of  harm  or potential harm to the child as a condition precedent

to granting visitation."56

           Justice  Souter  concurred.57  He  believed  that  the

Washington   Supreme  Court  decision  that   the   statute   was

unconstitutional on its face should be affirmed.58  He noted that

the  Washington  court  had  made  this  decision  based  on  two

independent grounds:  first that the statute did not require harm

to  the  child to justify visitation, and second that the statute

authorized  any  person at any time to petition for  and  receive

visitation  rights under the best interests standard.59   Justice

Souter  saw no error as to the second reason, and also  therefore

found  no need to decide whether harm is required, or to consider

the   precise  scope  of  a  parent's  right  or  its   necessary

protections.60  Justice Souter read the Washington Supreme  Court

decision   as  interpreting  the  statute  not  to  require   the

petitioner  "to  establish  that he  or  she  has  a  substantial

relationship  with  the  child."61   He  stated:   "It  would  be

anomalous,  then,  to subject a parent to any individual  judge's

choice of a child's associates from out of the general population

. . . ."62

           Justice Stevens dissented.63  In his view the  statute

was  "not made facially invalid either because it may be  invoked

by  too  many hypothetical plaintiffs, or because it leaves  open

the  possibility  that  someone may be  permitted  to  sustain  a

relationship  with a child without having to prove  that  serious

harm  to the child would otherwise result."64  Similarly, Justice

Kennedy  dissented on the basis that the Washington court's  harm

ruling was erroneous.65  Justice Kennedy surveyed the statutes of

all  fifty states and found that in all states but one  the  best

interests test for third-party visitation is used.66  He concluded

that  in  view  of  the "almost universal adoption  of  the  best

interests  standard  for visitation disputes,  I  would  be  hard

pressed  to conclude that the right to be free of such review  in

all   cases  is  itself  `implicit  in  the  concept  of  ordered

liberty.' "67  Justices Thomas and Scalia also authored  separate

opinions.68

            In   our   opinion,   the  Troxel  opinions,   viewed

collectively,  do not indicate that AS 25.20.060(a)  is  facially

unconstitutional.   The  statute, as we  construe  it,  does  not

permit  any  person  at  any  time  to  seek  visitation  rights.

Visitation rights can only be sought in a pending case concerning

child custody.  Further, although the statute permits a court  to

provide  for visitation based on the best interests of the  child

"by  a grandparent or other person" we construe the latter phrase

to  be limited to third parties who have a significant connection

to the child.

           These two differences serve to distinguish our statute

from  "the sweeping breadth" of the Washington statute that  was,

in  part, the basis for the plurality's conclusion in Troxel that

the  Washington statute was unconstitutional, and was  the  basis

for Justice Souter's concurrence.

           We  also give a narrowing construction to AS 25.20.060

so  that  it  need  not be unconstitutional as applied.   Justice

O'Connor's lead opinion states that special weight must be  given

to  a  fit  parent's  determination as  to  the  desirability  of

visitation  with third parties.69  We believe that  this  can  be

accomplished  by  imposing  on the third  person  the  burden  of

proving  that  visitation by the third  person  is  in  the  best

interests  of the child and by requiring that this be established

by  clear  and convincing evidence.  This would provide effective

protection  for  a parent's choice, except where  the  choice  is

plainly contrary to a child's best interests.

           There are also special circumstances in this case that

lead  us to conclude that visitation with the McTaggarts  can  be

constitutionally required.  The McTaggarts' status as  custodians

of  Shawn's  half-brother Cameron is one such circumstance.   The

boys  are only a year separated in age.  The trial court designed

Shawn's  visitation so that he would be with  the  McTaggarts  at

times that Cameron was also there because the court found that it

is  in  Shawn's  best interest that he have  as  much  time  with

Cameron  as  possible.   This  is  a  reasonable  and  legitimate

objective.

           Second, the court may have found that Lisa is unfit to

make decisions concerning Shawn's visitation.70  As in the case of

custody, we believe that a finding of parental unfitness to  make

a visitation decision should be made using a clear and convincing

evidence  standard  in  order to reduce  the  possibility  of  an

erroneous interference with parental prerogatives.

           We  do  not believe that AS 25.20.060(a), as  we  have

interpreted it in this opinion, is unconstitutional on  its  face

or  that  its application in this case will necessarily yield  an

unconstitutional  result.   On  remand  the  trial  court  should

determine by clear and convincing evidence whether it is  in  the

best  interests of Shawn that visitation with the  McTaggarts  be

provided.  Alternatively, if the court intends to find that  Lisa

is  unfit  to make the visitation decision for Shawn,  the  court

should address whether this finding can be made under a clear and

convincing evidence standard.

          C.   Child Support

           The  court  ordered Lisa to pay the  McTaggarts  fifty

dollars  a month for child support for Cameron.  The court  found

that  Lisa's income fell below federal income poverty  guidelines

and imposed the fifty dollar minimum sum called for by Civil Rule

90.3(c)(1)(B).  The court entered the order on March 6, 2002.  On

May  17,  2002,  Lisa  sought relief from the order,  purportedly

under  Civil Rule 60(b)(1) (mistakes of law) and (5)  (no  longer

equitable that the judgment should have prospective application).

           Lisa  contended that the court had mistakenly  applied

Civil  Rule  90.3(a), pertaining to primary custody.  She  argued

that  the  court should have applied 90.3(b), relating to  shared

custody.  She argued that shared custody was appropriate  because

she had visitation with Cameron about thirty-three percent of the

time,  thus  crossing  the  thirty-three  percent  dividing  line

between  primary  and  shared  custody  set  out  in  Civil  Rule

90.3(f)(1).   Child support under Civil Rule 90.3(b) relating  to

shared custody can mean that the parent with whom the child lives

most  of  the time is required to pay child support to the  other

parent  if  the  discrepancy in income  between  the  parents  is

sufficiently large.  Lisa has offered no calculations, but  given

her low income it is possible that if her argument is correct the

McTaggarts would owe her child support.

           But  her argument is not correct.  Civil Rule  90.3(b)

only  relates  to  cases  in  which parents  are  awarded  shared

physical  custody.   Third-party custody is  provided  for  under

Civil Rule 90.3(i).  That rule, in turn relies on the percentages

set  out in subparagraph (a)(2).  It does not speak to situations

that  would be shared custody, if between parents.  Some sensible

adjustment may be called for in such circumstances.  But whatever

the adjustment might be, it should not include use of the formula

in  Civil Rule 90.3(b).  The approach Civil Rule 90.3 follows  is

an  intact  family model, "based on economic analyses which  show

the  proportion  of  income parents devote to their  children  in

intact families is relatively constant across income levels up to

a certain upper limit."71  Third-party custodians were never part

of the intact family and thus cannot be treated as parents.

          As Lisa argues only that Civil Rule 90.3(b) should have

been used, and the award is minimal, the award is affirmed.

IV.   CONCLUSION72         Lisa also argues that the court abused

its discretion when it denied her motion for relief from judgment

made  on  May  14,  2002.   The motion mainly  reargued  evidence

already in the record.  It also sought to introduce new evidence.

To  the  extent that the motion relied on the grounds of  mistake

under  Civil  Rule  60(b)(1)  it was unpersuasive;  it  was  also

untimely  since  it  was  filed after the  time  for  appeal  had

expired.   Alaska Placer Co. v. Lee, 502 P.2d 128 (Alaska  1972).

Insofar  as it sought to introduce new evidence, the motion  made

no  showing  that the evidence was newly discovered or  that  the

standards  of  Civil Rule 60(b)(2) relating to  newly  discovered

evidence had been met.

           For the reasons stated the award of custody of Cameron

is vacated; the award of visitation relating to Shawn is vacated;

the  award of child support is affirmed; and the case is remanded

for the following purposes.

            Concerning  custody,  on  remand  the  court   should

determine  whether  the  substantive  standards  for  third-party

custody  -  parental  unfitness or clear detriment  -  have  been

satisfied by clear and convincing evidence.  If the court decides

that  neither substantive standard has been met by the clear  and

convincing standard based on the evidence already presented,  the

court  should  hold  an evidentiary hearing  updating  the  facts

concerning  Cameron's  custody and make  an  appropriate  custody

order in light of all the evidence.

           Concerning  visitation,  on remand  the  court  should

determine  whether  Lisa's  parental  preference  as  to  Shawn's

visitation  has  been  overcome by clear and convincing  evidence

that  it  is  in  Shawn's best interests that he visit  with  the

McTaggarts.  Alternatively, the court should decide by clear  and

convincing  evidence  whether Lisa is unfit  to  make  visitation

decisions concerning Shawn.  If the court decides that its  order

concerning  visitation cannot be sustained on the  basis  of  the

present  evidence,  the  court may hold  an  updated  evidentiary

hearing  and  make an appropriate order concerning visitation  in

light of all the evidence.

           Pending the superior court's determinations on remand,

the  status quo concerning custody and visitation should  not  be

disturbed.

           AFFIRMED  in  part, VACATED in part, and REMANDED  for

further proceedings.

EASTAUGH, Justice, with whom BRYNER, Justice, joins, concurring.

           I  agree  fully  with the court's opinion,  but  write

separately to briefly address several contentions advanced by the

dissenting opinion.

          The dissenting opinion asserts that the court's opinion

jeopardizes the doctrine of stare decisis.  Dissent at  37.   But

that  doctrine presupposes that there is controlling precedent.73

Careful  readers of our opinions discussing or referring  to  the

proof  standard for non-parental custody would have a  hard  time

reconciling  them,  as  the court's opinion  demonstrates  today.

Simply counting the opinions discussing the standard of proof and

comparing their chronology does not reveal clearly what  standard

is  to  be applied in Alaska when considering the effect  of  the

parental   preference  on  an  award  of  non-parental   custody.

Certainly  some of our decisions have approvingly  discussed  the

preponderance  standard.74   But  in  doing  so,  they  did   not

disapprove  (or even discuss) any other standard.  On  the  other

hand,  we have also recently expressly rejected the preponderance

standard  on  the theory the parental preference requires  "clear

evidence" of parental unfitness.75  Thus, in C.R.B. v.  C.C.,  we

explained  that "[t]he parental preference avoids this danger  by

requiring  a nonparent not merely to prove by a preponderance  of

the  evidence  that  the  nonparent can better  serve  a  child's

interests,  but  to prove by `clear evidence' that  a  parent  is

unfit  or that his or her custody is clearly detrimental."76   We

often  use  "clear evidence" to refer to the quality of  evidence

needed to satisfy the clear and convincing standard of proof.77

           Moreover,  in at least some of our opinions mentioning

the  proof standard, discussion of the standard appears  to  have

been unnecessary to the appellate outcome.78  And my review of the

appellate briefs filed in most of those cases reveals that rarely

have the parties actually briefed the issue.79          So far as

I  can tell, the issue was previously briefed only in one case in

this  court, Britt.  Appellant there briefly asked the  court  to

adopt  the clear and convincing standard.  The appellee  did  not

address the standard of proof and the court never discussed, much

less  rejected,  the  more  rigorous standard  requested  by  the

appellant.   It simply announced that the preponderance  standard

applied,  and did not explain that it was choosing that standard,

or its rationale for citing that standard.  567 P.2d at 310.    I

suspect  that our inconsistency in discussing the proof  standard

originates  in past inconsistency in distinguishing  between  the

substantive requirements and the proof standard for awarding non-

parental custody.

           I conclude that our discussion of the applicable proof

standard has not been consistent, and that it does not offend the

doctrine  of stare decisis to make it clear what standard  should

apply in Alaska.

           The  dissenting  opinion expresses concern  about  the

effect  the clear and convincing standard will have on children's

safety.  Dissent at 40-42.  I doubt that this standard will, as a

practical  matter,  affect the outcome in any  case  in  which  a

child's  safety  is  really  at stake.   I  think  that  parental

unfitness  that  endangers a child and  that  satisfies  Turner's

substantive  standard is very likely to be reflected in  credible

evidentiary  sources,  such  as  third-party  observers,  police,

health  care providers, or social workers.  As for cases  arising

from  reports attributable to the child, it seems highly probable

that the non-parental litigant, or a guardian ad litem or custody

investigator,  will be able to marshal evidence  corroborating  a

plausible report by the child.

          The dissenting opinion also correctly observes that the

award   of  custody  is  not  inherently  as  permanent  as   the

termination  of parental rights.  Dissent at 43.    It  therefore

contends  that the less rigorous proof standard should  apply  to

custody  awards.  But in reality, the kind of parental  unfitness

that satisfies Turner and justifies non-parental placement is not

easily  (and quickly) remedied.  This means that even  though  an

award   of  non-parental  custody  is  not  permanent  -  because

improvement in the parent's fitness may be a material  change  of

circumstances  -  its duration is likely to be long  relative  to

that  period in a child's life during which a parent  can  affect

the   child's   development.   Given  the  child's  interest   in

stability,  the  passage of time does not work  in  the  parent's

favor.    Non-parental  custody  therefore  squarely   implicates

important  parental rights. They, in turn, warrant the clear  and

convincing standard.

FABE,   Chief  Justice,  with  whom  CARPENETI,  Justice,  joins,

dissenting.

           Today's  decision  marks a major  departure  from  our

precedent and policy in resolving child custody disputes  between

parents  and  non-parents.  Our previous child custody  decisions

have  attempted  to strike a balance between protecting  children

and  preserving the autonomy of the family.  The court's decision

to  adopt  a higher burden of proof in non-parent custody  cases,

requiring that clear detriment to the child be shown by clear and

convincing   evidence   before   parental   preference   may   be

disregarded,  is  unfaithful to our case law and  undermines  the

important policy of protecting children.

I.   Adoption  of  the  "Clear and Convincing"  Standard  Is  Not
     Faithful to Our Legal Precedent.
     
          The court's review of the legal precedent on the burden

of  proof  in  child custody disputes between  parents  and  non-

parents  notably  ignores  our case law  expressly  adopting  the

preponderance of the evidence as the correct standard for proving

clear  detriment.  In Turner v. Pannick, we first determined  the

appropriate  substantive standard for deciding  custody  disputes

between  a parent and a non-parent:  the parental preference  may

only  be  overcome  when it would be clearly detrimental  to  the

child.80  Our subsequent cases unequivocally adopted and  applied

the  preponderance burden of proof for showing that custody  with

the parent would be clearly detrimental to the child.81  None  of

our  decisions in this area has applied the clear and  convincing

standard.82

           In  Britt  v. Britt, we announced that the  non-parent

must  prove, "by a preponderance of the evidence," that  parental

custody would be clearly detrimental to the child.83  And  twelve

years  later,  Justice Rabinowitz's opinion in Buness  v.  Gillen

relied on Britt for the proposition that "[t]he burden of showing

detriment to the child, by a preponderance of the evidence, is on

the   non-parent."84   Britt's  evidentiary  standard  was  again

affirmed in Justice Eastaugh's opinion on behalf of the court  in

J.W.  v. R.J., which noted that "the nonparent has the burden  of

proving the detriment by a preponderance of the evidence."85

          And, while the court relies heavily on C.R.B. v. C.C.86

to  justify adopting the clear and convincing standard,87  C.R.B.

made no attempt to distinguish Britt, Buness, and J.W., the cases

expressly  stating  the preponderance of the  evidence  standard.

Instead, the C.R.B. court relied on dicta from Carter that  noted

that  a  "parent is also entitled to a custodial preference  over

non-parents, unless there is clear evidence" that the  parent  is

either unfit or the welfare of the child requires that the  child

be  placed  in the custody of a non-parent.88  But it is  evident

that  the  Carter court did not intend to change  the  previously

established  preponderance standard, for  just  one  month  after

Carter,  Buness  reaffirmed the use of the preponderance  of  the

evidence standard.89 Indeed, C.R.B.'s reasoning seems to go  more

to  the  substantive standard of balancing a child's and parent's

interests,  recognizing the "inevitable sacrifice  of  children's

interests  in  cases  where a nonparent can  better  serve  those

interests, but a parent's custody is not `clearly detrimental.' "90

           Less  than two years after C.R.B., we decided Todd  v.

Todd.91   Todd  did not refer to any "deliberate  decision"92  in

C.R.B. to adopt a higher standard and instead cited Britt for our

rule  that  "the  burden  is on the non-parent  to  prove,  by  a

preponderance  of  the evidence, that parental custody  would  be

`clearly detrimental.' "93  In Todd, we did more than repeat  the

Britt standard; we compared the best interest standard applied to

custody  cases  between  parents  with  the  clearly  detrimental

standard  for custody cases between  a parent and a non-parent.94

And we concluded that even if the non-parent has been the primary

caregiver, the non-parent still must prove, by a preponderance of

the evidence, that parental custody would be clearly detrimental.95

           In  sum, we have repeatedly announced and applied  the

preponderance  of the evidence standard as the proper  burden  of

proof in third-party custody cases.96  The court's claim that the

adoption of the clear and convincing standard is "faithful to [a]

line of cases"97 selectively ignores our explicit adoption of the

preponderance standard.98

            In  light  of  our  prior  decisions  confirming  the

preponderance  of  the evidence test as the  correct  evidentiary

standard  in  custody disputes between a parent and a non-parent,

the  court  jeopardizes  the doctrine of  stare  decisis  by  its

decision  today.   Although the court does  not  admit  it,  this

decision  essentially overrules our cases adopting  and  applying

the preponderance of the evidence standard.  It is our policy  to

"balance[]  our community's competing interests in the  stability

of  legal  norms and the need to adapt those norms  to  society's

changing demands."99  We will only overrule a prior decision when

"clearly convinced that the rule was originally erroneous  or  is

no longer sound because of changed conditions, and that more good

than harm would result from a departure from precedent."100   The

court's  decision does not explain why the preponderance  of  the

evidence  standard is clearly erroneous or unsound, nor  does  it

describe  the good attained by the new rule.  Instead, the  court

rejects  precedent, undermining the stability that stare  decisis

aims to provide.

II.  Substantive and Evidentiary Standards Matter.

           The  court  asserts that a higher burden of  proof  is

necessary  because the heightened substantive standard  of  clear

detriment is inadequate protection for parents.101  To support this

proposition, the court cites the concurring opinions from  Turner

that  questioned  whether there is a difference  between  a  best

interests  and a clearly detrimental analysis.102  But the  court

cites  no  case  since Turner to suggest that  courts  have  been

unwilling or unable to use the clearly detrimental standard.   In

fact,  in  Kinnard v. Kinnard, we acknowledged that "[t]he  trial

court  explicitly  recognized the distinction between  the  `best

interests'  and `detriment' standards."103  While the  heightened

substantive standard of clear detriment is desirable, the court's

adoption  of  a  high  evidentiary standard  is  unnecessary  and

problematic.

           The  burden of proof has a significant impact  on  the

outcome of cases. Decision-makers are keenly aware of the  burden

of proof and apply it even in those cases where the result of the

proper  application may yield a result that they might  not  have

otherwise chosen.  For example, in State, Department of Health  &

Social  Services, Division of Family & Youth Services v.  M.L.L.,

we  upheld the trial court's rejection of the state's termination

petition  because the court "could not find beyond  a  reasonable

doubt  that  returning the children to the  mother  would  likely

result in serious emotional or physical damage."104  Although the

trial  court  determined that termination of the mother's  rights

and  placement with the foster mother would be in the  children's

best  interest,  it denied the state's petition  because  of  the

failure  of  proof  on the serious emotional or  physical  damage

issue.105

           Carter  v.  Novotny  confirms that  trial  courts  are

conscientious about the evidentiary burden in child custody cases

as  well.   In  Carter,  the  trial  court  applied  the  clearly

detrimental  substantive  standard when  it  initially  denied  a

maternal aunt's motion for custody of a fourth child even  though

the  first three children, two of whom had reached majority,  had

all chosen to live with the aunt rather than their father.106  Only

following  receipt of a psychological evaluation, two  additional

reports,  and testimony did the court shift physical  custody  to

the  aunt about a year later.107  These cases show quite  clearly

that,  despite the concurrence's hopeful hypothesis,108 different

burdens  of proof can and do lead to different results  in  close

cases.

           And  it  is not at all surprising that they  do.   The

standard  of proof is meant to allocate the risk of an  erroneous

judgment between the parties.  As the United States Supreme Court

has  noted, the burden of proof reflects society's judgment about

which  party  should  bear  the  risk  of  an  erroneous  factual

determination:  "The function of a standard of proof . . . is  to

`instruct the factfinder concerning the degree of confidence  our

society  thinks  he  should have in the  correctness  of  factual

conclusions   for  a  particular  type  of  adjudication.'   "109

Inevitably, in close cases, a higher standard of proof will place

the  risk  of erroneous factfinding on the child.  As M.L.L.  and

Carter  v.  Novotny  show,  trial judges  are  conscientious  and

careful about following the prescribed burden of proof, and cases

of parental custody present no exception to this rule.110

III.       Our  Policy  Has  Been and Should  Remain  To  Protect

     Children.

           The protection of the rights of children has developed

profoundly  in  recent years.111  Although safeguarding  parents'

rights is an important policy, protecting children is paramount.112

And  both  policy  goals  are served by a heightened  substantive

standard, such as serious and substantial detriment to the child,

paired with the standard that this harm must be proved only by  a

preponderance of the evidence.113  The high substantive  standard

ensures that a child will not be placed with a non-parent  simply

because that person provides a more comfortable lifestyle in  the

judge's   eyes.   Rather,  in  order  to  overcome  the  parental

preference,  a  non-parent should be required to  show  that  the

child  will be subject to a serious and substantial harm if  left

with  the  parent.  In Shurupoff v. Vockroth, Maryland's  highest

court  recently  addressed the question of what burden  of  proof

would  best effectuate sound policy and adopted the preponderance

of the evidence standard,114 recognizing that "[m]ost States . . .

have not defined any particular standard of proof but have sought

to  protect parental rights through the heavy substantive  burden

placed on the third party."115

           The court's error in adopting the clear and convincing

standard  is  brought  into stark relief  when  reviewed  in  the

context  of the statutory scheme for child protection cases.   In

the  adjudication of child in need of aid (CINA) cases, the state

need  only prove by a preponderance of the evidence that a  child

is in need of aid.116  The statute lists a number of circumstances

under  which a child will be found to be a child in need of  aid,

including  when a parent's conduct places the child  at  risk  of

physical   or  mental  injury.117   The  mental  injury   grounds

specifically  contemplate  the parent's  "pattern  of  rejecting,

terrorizing, ignoring, isolating, or corrupting behavior"118  and

the parent's neglect of the child.119  As in the child in need of

aid cases, the purpose of Turner's clear detriment standard is to

protect  children  who  would be harmed if  left  in  a  parent's

custody.  The parental conduct listed in the CINA statute,  which

need  only  be  proved  by a preponderance of  the  evidence,  is

comparable to the serious and substantial detriment evaluated  in

custody  disputes between parents and non-parents.  The  children

suffering  in  these severe circumstances should be afforded  the

same  protection regardless of whether the evidence is  presented

by  the  state  or  a concerned non-parent.  In fact,  non-parent

involvement may be preferable to the state's because if the court

finds  that parental custody is clearly detrimental, there is  an

available and loving alternative custodian.  This suggests that a

non-parent seeking custody should face the same burden  of  proof

required of the state.

          A preponderance of the evidence finding that a child is

a  child  in  need of aid results in custody with the  state  and

state  placement of the child for up to two years.120  A  custody

award  to  a  non-parent   similarly  is  not  permanent;  it  is

modifiable  if there is a substantial change in circumstances.121

And  as  we  concluded in Nichols v. Mandelin, after custody  has

been  awarded to one parent, the other, non-custodial parent  can

satisfy   the   threshold  substantial  change  of  circumstances

requirement  by demonstrating a positive change  in  his  or  her

personal  circumstances.122 In Nichols, the mother's  ability  to

demonstrate  that  she had matured, held a job  for  an  extended

period  of  time,  and  controlled her  former  drinking  problem

amounted  to a substantial change in circumstances.123  The  same

standard would apply if a parent sought to modify a custody award

to a non-parent; the parent could show that he or she had changed

circumstances so that parental custody will no longer be  clearly

detrimental  to  the child.  The presumption that placement  with

the  parent  is in the child's best interests would then  satisfy

the second requirement of modification:  that the modification is

in the child's best interests.124  Thus, the ability to  modify a

custody  award  provides additional protection  to  a  parent  if

custody is awarded to a non-parent.

           It is true that termination of parental rights must be

demonstrated by clear and convincing evidence.125  But this higher

standard of proof is necessary because of the permanency at stake

in  a  termination proceeding.  Maryland's highest court reasoned

in  Shurupoff that a higher standard of proof is justified  where

termination  of  parental rights is contemplated because  of  the

significant  differences between the state seeking to permanently

and  irrevocably  terminate all parental rights  and  "a  dispute

between  two private individuals over who should have custody  of

the child during his or her minority, subject to modification  by

the court upon a proper showing of changed circumstances."126  The

Shurupoff court also recognized the distinct concepts of  custody

involved;  in  a  custody dispute between  private  parties,  the

court's award does not result in the non-custodial parent  losing

the  right  to  visit the child, to have the child at  convenient

times,  to  communicate  with the child, to  participate  in  the

child's  activities, or to influence the child's  development.127

The  clear  and  convincing  burden  of  proof  contemplates  the

severity  of  parental rights termination while the preponderance

burden  accommodates the immediate protection  of  children  from

seriously harmful circumstances.

           The  court's formulation also ignores the reality that

it  may  be  difficult for the non-parent to show  by  clear  and

convincing  evidence  that a parent's  custody  will  be  clearly

detrimental  to  the  child.   A child's  report  of  a  parent's

destructive  conduct  is often the primary  source  of  evidence.

Even if it is not debatable that the parent's actions are harmful

to  the child, the lack of corroboration - particularly in  light

of a parent's denial - may mean that the child's report, although

providing  a preponderance of the evidence, will fail to  satisfy

the  clear  and  convincing  standard.   It  is  undisputed  that

emotional abuse, such as screamed insults, derision, and exposure

to  damaging  situations  can result in mental  harm  that  could

constitute  clear  detriment,  but  if  the  child  reports   the

emotional  abuse  and  the  parent  denies  it,  there   may   be

insufficient  corroborating evidence of the  abuse  to  meet  the

burden set out by the court.  For example, in Martin N. v. State,

Department  of  Health & Social Services, Division  of  Family  &

Youth  Services,  a  CINA  case, we  recognized  that  a  child's

continued  exposure to domestic violence "terrorizes"  the  child

and  is enough to cause mental harm, rejecting the father's claim

that  CINA  status  is  inappropriate  when  the  child  was  not

physically  harmed.128  But unlike physical abuse where  bruises,

broken  bones,  and scars may provide the corroboration  required

for   clear  and  convincing  evidence,  mental  abuse  like  the

"terrorizing" in Martin may be invisible, making a child's report

the primary source of evidence.  As a result, the higher standard

may not be met and the child will remain with the abusive parent.

At  the very least, adoption of this higher burden of proof  will

undoubtedly  result  in  more expert witnesses  being  called  at

custody  trials, making custody disputes even more expensive  and

time consuming to resolve.

           Application  of the preponderance standard  would  not

require  courts to ignore that an optimal upbringing includes  an

intimate,  consistent relationship with a parent or parents  that

is  insulated from interference by third parties.129  Parents  do

make "uniquely valuable contributions" to a child's development.130

Interference in the parent-child relationship must be limited  to

those occasions when non-intervention would allow a greater  harm

to the child than intervention would cause.131  While the American

Law  Institute's  Principles of the  Law  of  Family  Dissolution

emphasizes that a court should generally place a child  with  his

or her parent, the ALI recognizes that there is an exception when

parental  custody  "would be harmful to the child."132   The  ALI

commentary  acknowledges that non-parent  custody  should  be  an

"exception"   that   "provides   a   safety   net   for   extreme

circumstances,  to  allow a court to protect  a  child  when  the

result  of applying the rule [preferring parental custody]  would

likely  pose  significant risks to the welfare of the  child."133

Although   ALI   reserves   non-parent   custody   for   "extreme

circumstances"- thus adopting a high substantive standard  -  its

use  of  the  phrase  "likely  pose" indicates  approval  of  the

preponderance standard of proof, rather than clear and convincing

evidence.  Intervention is necessary when a child is subjected to

detrimental conduct and the excessive evidentiary burden that the

court imposes will continue to place the child at risk.

IV.  Conclusion

           In the present case, the trial court found that eight-

year-old  Cameron  is  at high risk as an  emotionally  disturbed

child  and that neither Cameron's mother nor his father can  meet

his  needs.   Cameron has a generalized anxiety disorder  and  is

severely emotionally disturbed.  His father does not know how  to

parent   and  he  reportedly  taped  Cameron's  mouth   shut   as

punishment.  The custody investigator described Cameron's  mother

as  someone who cannot take care of meeting her own needs, making

it  unlikely that she can meet Cameron's needs.  Cameron's mother

has never, in eight years, taken Cameron to see a dentist despite

knowing  that  Cameron has a decayed tooth.  And  when  Cameron's

mother  learned  that he was sneaking food when  he  was  hungry,

after  she  had  forbidden  him  snacks,  she  punished  him   by

preventing his attendance at a school field trip.

           The  court found that Cameron's mother uses him  as  a

"weapon of her anger and spite" toward Cameron's father.  And the

custody investigator described Cameron as a "rope in a tug of war

between   parents  or  families."   There  was  testimony   about

Cameron's  mother's  vindictive  attitude  toward  his   paternal

grandparents, the McTaggarts, including returning gifts given  to

Shawn  and Cameron and throwing holiday cards in the mud, placing

Cameron  in  a  "push,  pull  situation"  where  "he's  going  to

explode."   The  superior court found that  Cameron's  mother  is

"unable  to  nurture and care for him."  In the second  and  most

recent  custody report, after interviewing the children, parents,

grandparents, doctors, teachers, and counselors, the investigator

recommended  that  the  court award custody  of  Cameron  to  the

McTaggarts.

            The  superior  court  concluded  that,  based  on   a

preponderance of the evidence, it would be detrimental  to  place

Cameron  with  either of his parents.  Certainly it  is  possible

that  in  this  case,  where the court heard testimony  from  the

custody investigator, Cameron's counselor, Cameron's parents  and

grandparents, as well as other family members, the court may find

by  clear  and convincing evidence that placement with  Cameron's

parents will be clearly detrimental to Cameron.  But on remand, I

would  require only a determination that the substantive standard

of  clear  detriment  was satisfied by a   preponderance  of  the

evidence.  I therefore respectfully dissent.

_______________________________
1781 P.2d 985, 988 (Alaska 1989).
2We  use  these  terms interchangeably.  They  are  explained  in
Carter  v.  Brodrick, 644 P.2d 850, 852, 853 n.2  (Alaska  1982),
quoted in this opinion at pages 8-9, infra.
3Lisa filed a document captioned "Partial Opposition to Motion to
Intervene,"  but  the supporting memorandum explained  that  Lisa
"does  not  oppose the McTaggart[s'] intervention as  parties  in
this case, but wishes to have the court fully informed concerning
this aspect of the case."
4This  court  has held on several occasions that the "failure  to
raise  the issue of capacity to sue results in a waiver  of  that
defense."   Moore v. State, Dep't of Natural Res., 992 P.2d  576,
577  n.5 (Alaska 1999); see also Jackson v. Nangle, 677 P.2d 242,
250  n.10 (Alaska 1984); King v. Petroleum Servs. Corp., 536 P.2d
116, 118 (Alaska 1975); Brown v. Music Inc., 359 P.2d 295, 300-01
(Alaska  1961) ("If a party wishes to  raise an issue as  to  the
capacity  of  a party to sue, he must do so by specific  negative
averment, which shall include such supporting particulars as  are
peculiarly within the pleader's knowledge"; failure to raise  the
issue in the manner specified results in a waiver of the defense)
(internal quotation omitted).
5644 P.2d at 853 n.2.
6951 P.2d 1206, 1211 (Alaska 1998) ("The relationship between the
stepparent  and the child, no matter how close, does not  justify
application of the best interests standard . . . .").
7391 P.2d 447 (Alaska 1964).
8Id. at 448.
9406 P.2d 4 (Alaska 1965).
10540 P.2d 1051 (Alaska 1975).
11Id. at 1054.
12Id. at 1055.
13391 P.2d at 448.
14Hickey cites to II Nelson, Divorce & Annulments  15.16 (2d  ed.
1961).   This  section of the text in its specific discussion  of
grandparents as custodians uses the same "clearly shown" language
as  Hickey.  In the preceding section of the text concerning  the
general  subject  of custody disputes between third  parties  and
parents  the  text  states that "it must be shown  by  convincing
evidence  that  the  parent is an unfit person  .  .  .  ."   Id.
15.15, at 247 (emphasis added).
15Wilson, 406 P.2d at 7.
16Turner,  540 P.2d at 1054.
17Id.
18567 P.2d 308 (Alaska 1977).
19Britt, 567 P.2d at 310.
20Id. at 311.
21Turner, 540 P.2d at 1054.
22Id. at 1053-54.
23781 P.2d 985, 989 n.7 (Alaska 1989).
24951 P.2d 1206, 1210 n.3 (Alaska 1998).
25989 P.2d 141, 143 (Alaska 1999).
26779 P.2d 1195, 1197 (Alaska 1989).
27Id. at 1197.
28Id.
29959 P.2d 375, 380 (Alaska 1998) (emphasis omitted).
30Id. at 380.
31Id.
32When the non-parent has already been granted permanent custody,
the  parental  preference  drops out in  subsequent  modification
proceedings.  C.R.B., 959 P.2d at 380.
33See,  e.g.,  Spenard Action Comm. v. Lot 3, Block 1,  Evergreen
Subdivision,  902  P.2d  766, 775-76 (Alaska  1995)  (appropriate
burden  of proof in statutory nuisance abatement action is  clear
and  convincing  evidence, the standard "which lies  between  the
civil  standard  of  a  preponderance of  the  evidence  and  the
criminal  standard of beyond a reasonable doubt"); In re  C.L.T.,
597   P.2d   518,  525  (Alaska  1979)  ("the  law  has  produced
essentially  three  standards or levels of  proof  for  different
types of cases:  proof by preponderance of the evidence; proof by
clear  and  convincing evidence; and proof  beyond  a  reasonable
doubt";   adopting  the  "clear  and  convincing"  standard   for
termination   of  parental  rights  due  to  unfitness)   (citing
Addington v. Texas, 441 U.S. 418, 423-25 (1979)).
34To the extent that they state that the appropriate standard  is
the  preponderance standard, Britt, Buness, J.W.,  and  Todd  are
disapproved of.
35Turner, 540 P.2d at 1055 (Dimond, J., concurring).
36When  the state seeks to remove a child from the custody  of  a
parent  under our child in need of aid statutes, the standard  of
proof  that  the  state  must meet is the  preponderance  of  the
evidence standard.  CINA Rule 15(c).  We do not believe that CINA
proceedings are closely analogous to third-party custody  claims.
CINA  custody is reserved for a narrow, specifically defined  set
of  extremely serious harms; in contrast, a third-party  claimant
can be granted custody for a broad range of undefined detriments.
Further,  CINA  custody  is granted for a  limited  duration;  it
terminates  automatically after a set  period  unless  the  state
takes  the initiative of filing a petition to terminate  parental
rights.  In the interim, it requires ongoing efforts by the state
to  reunite  the  family.  In contrast,  a  private  party  order
remains  in  effect  indefinitely - unless modified;  it  can  be
modified only if the noncustodial parent takes the initiative  by
affirmatively alleging and proving changed circumstances; and  it
requires   no   intervening  efforts  to  foster   the   parental
relationship.  As we noted in C.R.B., 959 P.2d at 379, while  the
CINA  statutes  "prioritize  reunification"  third-party  custody
cases  focus  on  meeting  children's  needs  of  stability   and
permanence.  Thus, while it is nominally open to change, a third-
party  custody order may well consign the parent and child  to  a
functionally permanent severance of meaningful ties.  Finally, it
is always possible that inappropriate personal motives underlie a
third-party claim of custody whereas such motives are unlikely to
be  a  factor in CINA cases.  These differences favor a  stronger
standard in third-party custody cases.
37In  custody  disputes between a parent and a third  party,  our
research  reveals that 14 states, including Arizona,  California,
Georgia,  Idaho, Indiana, Kentucky, Michigan, Mississippi,  North
Carolina, Oklahoma, Rhode Island, Tennessee, Virginia,  and  West
Virginia,  impose a heightened burden of proof  on  a  non-parent
third  party  seeking custody of a child from a  natural  parent.
See,   e.g.,   Ariz.  Rev.  Stat.   25-415(B)(1999)  (clear   and
convincing  evidence); Cal. Fam. Code  3041  (West  1994)  (clear
and convincing evidence); Clark v. Wade, 544 S.E.2d 99 (Ga. 2001)
(clear and convincing evidence); Stockwell v. Stockwell, 775 P.2d
611,  613-14  (Idaho 1989) ("clear, satisfactory, or  convincing"
evidence); In re Guardianship of B.H., 770 N.E.2d 283, 286  (Ind.
2002)  ("clear and cogent" evidence); Greathouse v.  Shreve,  891
S.W.2d  387,  390  (Ky.  1995) (clear and  convincing  evidence);
Heltzel  v. Heltzel, 638 N.W.2d 123 (Mich. App. 2001) (clear  and
convincing  evidence); Simpson v. Rast, 258  So.  2d  233  (Miss.
1972)  ("clear showing"); Adams v. Tessener, 550 S.E.2d 499 (N.C.
2001)  (clear and convincing evidence); McDonald v. Wrigley,  870
P.2d 777 (Okla. 1994) (clear and conclusive evidence); Skeadas v.
Slaroff, 122 A.2d 444, 446 (R.I. 1956) ("clear proof");  Toms  v.
Toms, 98 S.E.3d 140 (Tenn. 2003) (clear and convincing evidence);
Bailes  v. Sours, 340 S.E.2d 824 (Va. 1986) (clear and convincing
evidence); Whiteman v. Robinson, 116 S.E.2d 691, 693-94  (W.  Va.
1960) ("cogent and convincing proof").
38Our  research  indicates that four states, including  Illinois,
Maryland,  Ohio,  and Oregon, either use a preponderance  of  the
evidence  standard  or  have declined  to  require  a  heightened
evidence  burden  on a non-parent party seeking  custody  from  a
parent.  See, e.g., In re Marriage of Dafoe, 754 N.E.2d 419 (Ill.
2001)  (rejecting  parent's  contention  that  Troxel  created  a
substantially heightened burden of proof for custody cases;  non-
parent  seeking  custody  must show "good  cause  or  reason"  to
overcome  parental preference); Shurupoff v. Vockroth,  814  A.2d
543 (Md. 2003) (presumption in favor of parent is overcome if the
parent  is  unfit  or exceptional circumstances exist  that  make
custody with the parent detrimental to the best interests of  the
child;  a  clear  and convincing standard is not constitutionally
required); Reynolds v. Goll, 661 N.E.2d 1008 (Ohio 1996) (quoting
In  re  Perales,  369  N.E.2d  1047 (Ohio  1977))  (preponderance
standard);   Or.   Rev.  Stat.  109.119  (1999)  (amended   2001)
(preponderance standard).
39The full text of AS 25.20.060(a) provides:If th
40The full text of AS 25.20.060(a) provides:

                 If  there  is  a  dispute  over  child
          custody,  either  parent  may  petition   the
          superior  court for resolution of the  matter
          under   AS  25.20.060_25.20.130.   The  court
          shall award custody on the basis of the  best
          interests  of the child.  In determining  the
          best  interests of the child, the court shall
          consider all relevant factors including those
          factors enumerated in AS 25.24.150(c).  In  a
          custody determination under this section, the
          court  shall  provide  for  visitation  by  a
          grandparent or other person if that is in the
          best interests of the child.
          
           Lisa  also  focuses on AS 25.20.065  which  permits  a
grandparent  in an original proceeding to petition for  an  order
establishing visitation rights.  This statute does not  apply  to
this case as the McTaggarts are not grandparents and they did not
proceed by way of an original proceeding.

41530 U.S. 57 (2000).
42Id. at 60.
43Id. at 57.
44Id. at 63.
45Id.
46Id. at 62.
47Id. at 67.
48Id.
49Id. at 68.
50Id.
51Id. at 69-70.
52Id. at 71.
53Id. at 61, 71.
54Id. at 73.
55Id. at 67.
56Id.  at 73.  While declining to consider the Washington Supreme
Court's  finding of facial invalidity, the plurality  nonetheless
observed that, "[b]ecause much state-court adjudication  in  this
context  occurs on a case-by-case basis, we would be hesitant  to
hold  that  specific nonparental visitation statutes violate  the
Due Process Clause as a per se matter."  Id.
57Id. at 75-80.
58Id. at 75.
59Id. at 73.
60Id. at 77.
61Id.
62Id. at 79.
63Id. at 80-91.
64Id. at 81.
65Id. at 94.
66Id. at 99-100.
67Id. at 100.
68Justice  Scalia dissented on the ground that  parents  have  no
constitutional  right to direct the upbringing of their  children
free  from state interference.  Id. at 92.  Justice Thomas  noted
that the parties had not raised the substantive due process point
on  which  Justice Scalia relied and expressed no  view  on  that
point.   "Consequently," he agreed with  the  lead  opinion,  but
indicated  that he would apply "strict scrutiny to  infringements
of fundamental rights" and thus require a compelling governmental
interest  to  justify interference with "a fit parent's  decision
regarding visitation with third parties."  Id. at 80.
69Id. at 70.
70The court found that "Lisa Evans has a limited cognitive ability
and  through this and her anger together she is incapable in  her
present  condition of seeing her needs as separate from Cameron's
and Shawn's . . . ."
71Alaska R. Civ. P. 90.3, cmt. II.
72Lisa  makes two other points that we determine summarily.   She
argues  that  Shawn's  father,  Eric  Evans,   should  have  been
notified   prior  to  awarding  visitation  to  the   McTaggarts.
According to Lisa, Eric has not seen Shawn since Shawn  was  four
months  old.   As a practical matter, therefore, visitation  with
the  McTaggarts  will not interfere with Eric's parental  rights.
We  note that the superior court required that notice be given to
Eric advising him of the visitation order and giving him 120 days
within  which to seek reconsideration of the order.   The  record
does not indicate that he responded.

73Joseph  v.  State,  26 P.3d 459, 468-69 (Alaska  2001)  ("Stare
decisis  compels  us  to give precedential  value  to  our  prior
holdings.  .  . .  But it is not clear that [two previous  cases]
actually resolved the issue now before us.  A case is not binding
precedent  if  its holding is only implicit or  assumed.  .  .  .
Dictum is not holding." (Footnotes omitted.))
74Todd v. Todd, 989 P.2d 141, 143 (Alaska 1999); J.W. v. R.J., 951
P.2d  1206, 1210 n.3 (Alaska 1998);  Buness v. Gillen,  781  P.2d
985,  989  n.7 (Alaska 1989); Britt v. Britt, 567 P.2d  308,  310
(Alaska 1977).
75C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998).
76959 P.2d at 380 (citing Carter v. Novotny, 779 P.2d 1195,  1197
(Alaska  1989)).   The  dissenting opinion probably  misconstrues
C.R.B. v. C.C. and Carter v. Novotny in asserting that C.R.B. and
Carter "were not addressing the question of burden of proof,  but
were most likely referring to the substantive standard."  Dissent
at 34-35 n.3.  I think that the relevant passages must be read as
addressing  the standard of proof, not the substantive  standard.
E.g., 959 P.2d at 380 (referring to "clear evidence").
77We have sometimes referred to "clear evidence" as equivalent to
the  clear and convincing standard.  Vezey v. Green, 35 P.3d  14,
24-25  (Alaska  2001)  (treating "clear and convincing  evidence"
standard in adverse possession case to require "clear evidence");
State  v. Alaska State Employees Ass'n/AFSCME Local 52, 923  P.2d
18,  28  n.12  (Alaska 1996) (applying National  Labor  Relations
Board's  "clear  and convincing evidence rule"  for  adoption  of
labor  agreements but finding no "clear evidence"  showing  state
housing  corporation adopted ongoing obligation to  bargain  with
state  employees  association); Spenard Action Comm.  v.  Lot  3,
Block  1,  Evergreen Subdivision, 902 P.2d 766, 775 n.16  (Alaska
1995) (citing New York case requiring "clear evidence" in support
of  applying "clear and convincing evidence" to establish  public
nuisance).
78See,  e.g.,  Britt, 567 P.2d at 310, where the  choice  of  the
applicable  proof  standard was irrelevant, because  we  reversed
both  because it was clear error to find parental unfitness given
the  evidence and because the trial judge erroneously stated that
neither  party bore the burden of proof; applying the  clear  and
convincing standard would not have altered the appellate  result.
Id.  at  310-11.   The outcome in other cases likewise  does  not
seem to have turned on the choice of standard.  See, e.g., J.W.
79The  parties did not brief the issue, for example,  in  Buness,
C.R.B., J.W. , or  Todd.

           In  Todd,  the  trial court applied the  preponderance
standard  in  awarding custody to the grandparents; we  affirmed.
The  parents  did not contend on appeal the more  rigorous  proof
standard applied.

          In Buness, the superior court rejected the stepfather's
custody  claim  on summary judgment; we concluded  that  genuine,
material  fact disputes precluded summary judgment, and remanded.
There  is  no  indication in the opinion that the  evidence  that
created  a  factual dispute under the preponderance standard  was
insufficient  to  do so under the clear and convincing  standard.
In  mentioning  the preponderance standard, we  simply  cited  to
Britt.  781 P.2d at 989 n.7.

80540 P.2d 1051, 1055 (Alaska 1975).
81Todd v. Todd, 989 P.2d 141, 143 (Alaska 1999); J.W. v. R.J., 951
P.2d  1206,  1210 n.3 (Alaska 1998); Buness v. Gillen,  781  P.2d
985,  989  n.7 (Alaska 1989); Britt v. Britt, 567 P.2d  308,  310
(Alaska 1977).
82While  "clearly  shown" is in our early  cases,  these  precede
Turner.   Both  Carter v. Novotny, 779 P.2d  1195,  1197  (Alaska
1980) and C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998) use the
phrase   "clear  evidence."   These  cases,  however,  were   not
addressing the question of burden of proof, but were most  likely
referring to the substantive standard.
83567 P.2d at 310.
84Buness v. Gillen, 781 P.2d 985, 989 n.7 (Alaska 1989).  Justice
Rabinowitz  wrote a concurring opinion in Turner  addressing  his
concerns about how the court characterized the substantive  test.
540  P.2d at 1056.  This did not prevent him from then using  the
"preponderance of the evidence" test in Buness.
85951 P.2d at 1210 n.3.
86959 P.2d at 375.
87Slip Op. at 14-16.
88Carter, 779 P.2d at 1197, cited in C.R.B., 959 P.2d at 380.
89781 P.2d at 989 n.7.
90C.R.B., 959 P.2d at 380.
91989 P.2d 141.
92Slip Op. at 15.
93Todd, 989 P.2d at 143.
94Id.
95Id.
96Todd,  989  P.2d at 143 ("[T]he burden is on the non-parent  to
prove,  by a preponderance of the evidence, that parental custody
would  be  `clearly detrimental.' ") (emphasis added); J.W.,  951
P.2d  at  1210 n.3 ("The nonparent has the burden of proving  the
detriment by a preponderance of the evidence.") (emphasis added);
Buness, 781 P.2d at 989 n.7 ("The burden of showing detriment  to
the  child,  by a preponderance of the evidence, is on  the  non-
parent.") (emphasis added); Britt, 567 P.2d at 310 ("Turner makes
clear  that  in [custody litigation between a parent and  a  non-
parent]  the non-parent must overcome by a preponderance  of  the
evidence the preference for parental custody.") (emphasis added).
97Slip Op. at 16.
98See cases cited supra note 17.
99State  v. Fremgen, 914 P.2d 1244, 1245 (Alaska 1996)  (citation
omitted).
100Id. (quotation marks and citation omitted).
101Slip Op. at 16.
102Slip Op. at 16-17.
10343 P.3d 150, 154 (Alaska 2002).
10461 P.3d 438, 442 (Alaska 2002) (quoting superior court).
105Id. at 441-42.
106779 P.2d 1195, 1196-97 (Alaska 1989).
107Id. at 1197.
108Concurrence at 32-33.
109Addington  v. Texas, 441 U.S. 418, 423 (1979) (quoting  In  re
Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)).
110State,  Dep't of Health & Soc. Servs. v. M.L.L., 61  P.3d  438
(Alaska 2002); Carter v. Novotny, 779 P.2d 1195 (Alaska 1989).
111See  James G. Dwyer, Parent's Religion and Children's Welfare:
Debunking the Doctrine of Parent's Rights, 82 Cal. L. Rev.  1371,
1374,  1377,  1447  (1994)  ("I propose that  children's  rights,
rather  than  parent's rights, be the legal basis for  protecting
the  interests  of children."); see also Barbara A.  Atwood,  The
Child's  Voice  in Custody Litigation:  An Empirical  Survey  and
Suggestions  for Reform, 45 Ariz. L. Rev. 629, 674  (2003)  ("The
growing  legal recognition of children's rights .  .  .  strongly
support[s]  the  conclusion that family courts should  take  into
account  the  views  of  children able  and  willing  to  express
them.").
112A.H. v. State, Dep't of Health & Soc. Servs., 10 P.3d 1156, 1166
(Alaska  2000).  In T.F. v. State, we recognized  that  our  rule
that  the  State  has  no  duty to undertake  family  unification
efforts before paternity is established is "driven by the  policy
of  protecting  children in need of aid."   26  P.3d  1089,  1095
(Alaska 2001).
113See Shurupoff v. Vockroth, 814 A.2d 543, 555 (Md. 2003).
114Id. at 555-56.
115Id.  at 553
116AS 47.10.011.
117AS 47.10.011(6) & (8).
118AS 47.10.011(8).
119Id.; AS 47.10.011(6).
120AS 47.10.080(c)(1).
121Nichols v. Mandelin, 790 P.2d 1367, 1371-72 (Alaska 1990).
122Id.
123Id. at 1372.
124See  AS  25.20.110(a); Maxwell v. Maxwell, 37  P.3d  424,  425
(Alaska 2001).
125AS 47.10.088(1).
126Shurupoff, 814 A.2d at 552.
127Id.
12879 P.3d 50, 55 (Alaska 2003).
129See, e.g., Joseph Goldstein, et al., Before the Best Interests
of the Child (1979).
130Marsha  Garrison, Parent's Rights vs. Children's Rights:   The
Case  of  the Foster Child, 22 N.Y.U. Rev. L. & Soc. Change  371,
372 (1996) (quoting Lehr v. Robertson, 463 U.S. 248, 262 (1983)).
131See Dwyer supra note 32, at 1377.
132Principles  of  the  Law of Family Dissolution:  Analysis  and
Recommendations  2.18 cmt. c (2002).
133Id. (emphasis added).