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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).
