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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Elton H. v. Naomi R (08/26/2005) sp-5935

Elton H. v. Naomi R (08/26/2005) sp-5935

     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

ELTON H., )
) Supreme Court No. S- 11531
Appellant, )
) Superior Court No.
v. ) 3AN-03-13484 CI
)
NAOMI R., ) O P I N I O N
)
Appellee. ) [No. 5935 - August 26, 2005]
)
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:   James  J.   Davis,   Jr.   and
          Marguerite   Humm,  Alaska   Legal   Services
          Corporation,  Anchorage, for  Appellant.   No
          appearance for Appellee.

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

          CARPENETI, Justice.

I.   INTRODUCTION
          Elton  H.1 is the father of two minor children,  Julian
and Carmen.  He appeals a custody order granting legal custody to
Naomi  R.,  the  mother  of the children,  and  temporary  shared
physical custody to Elton and Naomis mother, Arletta M.   Because
the  order  did not grant de facto legal custody to Arletta,  and
the superior court did not abuse its discretion by awarding legal
custody to Naomi, we affirm the order in regard to legal custody.
But because the superior court awarded shared physical custody to
Arletta  over  Eltons  objections without  making  the  necessary
findings pursuant to Evans v. McTaggart,2 we reverse the order in
regard to physical custody and remand for further proceedings.
II.  FACTS AND PROCEEDINGS
     A.   Background
          Elton  and  Naomi are the biological parents of  Julian
H.,  born in 1991, and Carmen H., born in 1995.  The couple  were
together   from   1989  until  1998  without   marrying.    Their
relationship  was  tumultuous.   Elton  suffered  from  untreated
schizophrenia and depression until 1995, along with  a  drug  and
alcohol  problem.  He walked out on the family several times  and
physically abused Naomi.
          From 1998 until 2000, Elton and Naomi shared custody of
Julian   and   Carmen  in  Anchorage  pursuant  to  an   informal
arrangement.   Following her separation from Elton, Naomi  became
romantically involved with a man named Lance V.  In October 2000,
Naomi  briefly moved with Carmen and Lance to Puerto Rico  before
settling  in Orlando, where she remains.  In 2001 Naomi  had  the
first  of  her two children by Lance.  Lance has also  physically
abused  Naomi.   The couple parted in 2002 but  continue  to  co-
parent their two children.
          Elton  remained in Anchorage with Julian.  Arletta  M.,
Naomis  mother,  lives in Anchorage with her own young  children.
Since 2000, Arletta has taken a very active role in helping Elton
raise  Julian.  During the summer of 2002, Naomi sent  Carmen  to
live in Anchorage with Arletta and Elton.  Carmen lived primarily
with  Arletta  while Julian resided primarily with Elton.   Naomi
maintained close contact with her children, though she  was  able
to  make  only  a single visit, from Christmas 2002  to  February
2003,  between the summer of 2002 and the custody  trial  in  the
summer of 2004.
          Elton  is  currently  taking anti-psychotic  and  anti-
depressant medication.  His health care providers have  described
his  mental  illness as stable and mild.  One is of  the  opinion
that he is functionally stable and is able to do the usual things
that  the  rest of us in society do.  He has no current substance
abuse  problems.   He has been unemployed since  July  2003.   He
estimates that his income is close to $700 per month.  He derives
this  income  from Supplemental Security Income, Social  Security
and Adult Public Assistance.  He does not have a checking account
or any savings.  He currently resides in a subsidized two-bedroom
apartment.   He  believes  that  he  would  be  eligible  for   a
subsidized three-bedroom apartment if he is awarded full  custody
of Julian and Carmen.
          At  the time of trial, Naomi was unemployed and was  in
the process of being evicted from her apartment in Florida.
          The  impetus for this action originated from a  dispute
between  Elton and Arletta over custody of the children.   Julian
enrolled in summer school in 2003.  Because Arletta lived  nearby
the  school, Elton asked if Julian could live with her during the
term.   She  agreed.   On  the last day of summer  school,  Elton
informed  Arletta  that he was coming to pick  up  his  children.
Arletta  refused  to  allow  him to  take  the  children.   Elton
eventually  filed  suit  to  gain custody  and  for  damages  for
interference with parental rights.
     B.   Proceedings
          Elton filed suit on November 21, 2003 against Naomi and
Arletta.   He requested primary custody of Julian and Carmen  and
asked  for  compensatory and punitive damages  from  Arletta  for
intentionally  interfering with his parental  rights.   Prior  to
trial  Arletta,  who in her joint answer with  Naomi  had  sought
custody of the children, was dismissed as a defendant.
          Trial  was  held  June 7-8, 2004 before Superior  Court
Judge  John  Suddock.   Elton  was represented  by  Alaska  Legal
Services  and  Naomi represented herself pro se.   Judge  Suddock
issued  oral  findings on June 14, 2004 and written findings  and
conclusions of law two days later.
     C.   The Superior Courts Findings of Fact
          Initial  custody determinations in non-divorce disputes
are governed by AS 25.20.060.3  When faced with a custody dispute
pursuant  to  AS 25.20.060, a superior court shall award  custody
based on the best interests of the children according to the nine
factors  described in AS 25.24.150(c).  At the time the  superior
court considered this case, these factors were:4
                (1)  the  physical, emotional,  mental,
          religious, and social needs of the child;
          (2)  the capability and desire of each parent
          to meet these needs;
          (3) the childs preference if the child is  of
          sufficient  age  and  capacity  to   form   a
          preference;
          (4)  the  love and affection existing between
          the child and each parent;
          (5) the length of time the child has lived in
          a  stable, satisfactory environment  and  the
          desirability of maintaining continuity;
          (6) the desire and ability of each parent  to
          allow    an    open   and   loving   frequent
          relationship between the child and the  other
          parent;
          (7)  any evidence of domestic violence, child
          abuse,  or  child  neglect  in  the  proposed
          custodial household or a history of  violence
          between the parents;
          (8)  evidence that substance abuse by  either
          parent  or  other  members of  the  household
          directly  affects the emotional  or  physical
          well-being of the child;
          (9)  other  factors that the court  considers
          pertinent.[5]
          
Pursuant  to  AS  25.20.060,  the superior  court  applied  these
factors  to  determine the best interests of Julian  and  Carmen.
The  court entered findings on each of these factors, placing the
most  emphasis  on the ability of each parent  to  care  for  the
children and the childrens need for stability.
          1.   Physical, emotional, mental, religious, and social
               needs
          The   superior   court  concluded  that  the   children
especially  need  stability,  a reprieve  from  violence,  and  a
cessation  of inter-parent strife:  Both children need stability,
          both children need parents they can rely on to meet their needs
and  support for [Julians] academic situation, Special Ed.   They
need  to  be  away from violence, away from conflict between  the
parents or between either of the parents and the grandmother.
          2.   The  capability and desire of the parents to  care
               for their children
               
          While  the  superior court believed that  both  parents
love  their  children and desire to care for them,  it  concluded
that  neither  is  presently able to care  for  them.   Naomi  is
currently  unemployed, without housing, and lacking in  emotional
stability.   Elton is also unemployed but his other  shortcomings
are less tractable.  According to the superior court, Elton has a
pattern  of  abandoning  his  responsibilities  and  his  family,
exhibiting  marginal judgment, and suffering from serious  mental
illness  that  requires treatment occupying the majority  of  his
mental and emotional resources.  The superior court believed that
Naomi  will be capable of caring for Julian and Carmen  once  she
gets  back on her feet.  For Elton, on the other hand, there  are
structural  limits  on what he can do taking care  of  these  two
children as a primary care giver.
          3.   Preferences of the children
          The  superior  court concluded that Julian  and  Carmen
were  not  sufficiently  mature to form a preference  for  either
parent.6  At the urging of the custody investigator, however, the
superior court noted that the children are decidedly in favor  of
being  parented by the mother in Florida.  Carmen, in particular,
is afraid of being parented by Elton.
          4.   Love and affection existing between each child and
               the parent
          In  its written findings, the superior court found love
between both parents and the children.  In its oral findings, the
superior court noted that Carmen stated that she does not  really
know her father.
          5.   The  length  of time child has lived in particular
               setting and the desirability of continuity
               
          The  superior  court found that Arletta  has  been  the
strongest  source  of stability and continuity in  the  childrens
lives:   [I]f  [Arletta] werent here, this  situation  could  not
possibly  have  worked even as well as it has for the  past  four
years.   The children also have extended family in the  Anchorage
area  and  have  formed close attachments to Arlettas  two  young
children.
          6.   Desire and ability of parent to allow an open  and
               loving  relationship between  children  and  other
               parent
               
          The  superior court found that each parent is equal  in
this regard.
          7.   Evidence  of  domestic violence,  child  abuse  or
               neglect
          While  the  court found that there is  no  evidence  of
present or recent domestic violence by [Elton] in its findings of
fact, it noted in its oral findings that Elton beat Naomi in  the
          past and doesnt understand that [in] this society, domestic
violence is unacceptable.
          The  superior  court found no domestic violence  issues
with  respect to [Naomi].  It noted, however, that Lance,  Naomis
former  boyfriend  and  the father of  her  other  children,  was
arrested last year for domestic violence against Naomi.
          The court determined that there is no evidence of child
abuse by either parent.
          8.   Substance abuse issues
          The  court  found no current substance abuse by  either
parent.   In  its  oral  findings, the  court  noted  that  Elton
apparently  had  a cocaine and alcohol problem  sometime  in  the
past.  It seems to be under acceptable control now.
     D.   The Superior Courts Custody Order
          Faced  with  these difficult facts, the superior  court
determined  that  [this]  situation is  best  met  with  a  rough
maintenance  of  the  status quo.  At trial, the  superior  court
repeatedly  asked  Elton  if a shared  custody  arrangement  with
Arletta  could  be  worked out.  In the end, the  superior  court
granted  sole legal custody to Naomi but awarded shared  physical
custody   to  Arletta  and  Elton  because  of  Naomis  temporary
inability  to  care for the children.  Ultimately,  the  superior
court  expected that Naomi would get back on her feet and request
physical  custody:   If and when [Naomi] obtains  a  stable  job,
housing,  and the emotional stability needed to support a  family
of  four,  she may [move] this Court to prove such  factors.   If
[Naomi]  does so, this Court will allow the children to  move  to
Florida to live with her so that she has physical custody of  her
children.
          The  order  allocated physical custody between  Arletta
and  Elton  based on Arlettas work schedule.  The  children  stay
with  Elton from Monday morning until Thursday morning and during
the  day on weekends.  Though the children spend roughly half  of
every  week  with  Elton,  the order  granted  Arletta  the  full
financial  benefits of physical custody  such as  child  support,
tax benefits, and control of permanent fund dividends.
          Elton  appeals both the award of legal custody to Naomi
and  the  award  dividing physical custody  between  himself  and
Arletta.  Naomi and Arletta have not participated in this appeal.
III. STANDARD OF REVIEW
     
          Whether  the  court applied the correct standard  in  a
custody  determination is a question of law we  review  de  novo,
determining  the rule of law in light of precedent,  reason,  and
policy.7
          A   trial  court is given broad discretion  in  custody
awards so long as the best interests of the child are served.8  A
superior  courts decision in child custody matters  will  not  be
reversed  unless  there has been an abuse of  discretion  or  the
controlling factual findings are clearly erroneous.9  An abuse of
discretion  is  established where the superior  court  considered
improper  factors in making its custody determination, failed  to
consider    statutorily    mandated    factors,    or    assigned
disproportionate  weight  to particular  factors  while  ignoring
          others. 10  A factual finding is clearly erroneous when a review
of the record leaves this court with the definite impression that
a mistake has been made.11
IV.  DISCUSSION
     A.   The Custody Award Violates Evans v. McTaggart.
          We have long recognized that a parent is entitled to  a
custodial  preference over non-parents in custody determinations.
This preference can only be overridden if the parent is unfit  or
the welfare of the child requires that the child be placed in the
custody of a non-parent.12  In Evans v. McTaggart,13 we held that
clear  and  convincing  evidence is  necessary  to  override  the
parental preference.14  We also specified that a trial court must
articulate  the standard of proof used to override  the  parental
preference.15  Because Eltons implied contention that  the  order
grants  de  facto legal custody to Arletta is without  merit,  we
affirm  the  order granting legal custody to Naomi.  But  because
the superior court awarded shared physical custody to Arletta,  a
non-parent, without entering any findings pursuant to  Evans,  we
reverse  the order in regard to physical custody and  remand  for
further proceedings.
          1.   The  superior court granted sole legal custody  to
               Naomi.
               
          Elton  argues that the award of sole legal  custody  to
Naomi  was  a legal fiction and that the superior court  actually
awarded  [Arletta] . . . custody of both [Julian]  and  [Carmen].
Elton  claims  that the court invested Arletta with  all  of  the
rights  and  incidents of child custody, even  though  Naomi  was
named  the nominal legal custodian.  We read this as an  argument
that  the  superior  court  granted legal  custody,  as  well  as
physical  custody, to Arletta.  Consequently, Elton  claims  that
the  superior court violated Evans because it failed to make  the
factual  findings necessary for awarding custody to a  non-parent
over  the objections of a parent.  Though we have some misgivings
regarding Naomis practical ability to exercise legal custody over
her  children  from  Orlando,16 we  accept  the  superior  courts
statement that it awarded sole legal custody to Naomi.
          The   essential  feature  of  legal  custody   is   the
discretion to make major decisions regarding a childs upbringing.17
These decisions include choices regarding education, health care,
morals, and religion.18  Elton argues that the court awarded full
custody to Arletta because (1) the custody order prohibited Naomi
from assuming physical custody for at least one school year,  (2)
Naomi  may elect to leave the children in the current arrangement
until  their  majority,  and (3) the court  awarded  Arletta  the
financial  benefits that accompany primary physical custody.   We
are  not  convinced  that these features  of  the  custody  award
demonstrate that Arletta possesses full custody, that  is,  legal
as  well as physical custody, because they did not invest Arletta
with discretion to make major decisions.
          Requiring  the  children to remain  in  Anchorage  with
Arletta and Elton for one school year does not transfer decision-
making  authority  from Naomi to Arletta.   This  aspect  of  the
custody  order restricts Naomis discretion but it does not  grant
          Arletta any authority.  The possibility that the current
arrangement  could last indefinitely also does not affect  Naomis
authority.   Even  if  Arletta physically cares  for  Julian  and
Carmen  until  their majority, Naomi still retains the  right  to
make  the  major decisions affecting their lives.   The  superior
courts  boarding  school analogy aptly captures  the  dynamic  of
these  circumstances.  Like a parent who has placed her child  in
boarding  school, it becomes more difficult for Naomi  to  ensure
that   her   preferences   regarding  her  childrens   education,
discipline, morality, and religious instruction are carried  out.
This  difficulty, however, does not deprive her of the  right  to
make such decisions.
          We  also  note  that  Eltons first  two  arguments  are
unpersuasive  in  light  of  the fact  that  he  shares  physical
custody.   Under the custody award, Elton cares for the  children
from Monday morning until Thursday morning and during the day  on
weekends.   The requirement that the children remain in Anchorage
for  one  school  year  and  the  possibility  that  the  current
arrangement  could  last  indefinitely actually  increase  Eltons
ability to affect the childrens health, education and welfare.
          Eltons  final contention, that Arlettas receipt of  the
financial  benefits of custody shows that Arletta possesses  full
custody,  is  likewise unpersuasive.  Child support is  meant  to
benefit  the  child by financially assisting the party  providing
child  care.19   Likewise, tax breaks are meant to offset  actual
child  care  costs.   These financial benefits are  appropriately
granted  to  the  person who the custody order contemplates  will
provide  child care.  Consequently, assigning these  benefits  to
Arletta  does not imply that she holds legal as well as  physical
custody; it only reflects that she bears the financial burdens of
physical  custody.20  On the other hand, control of the childrens
permanent  fund  dividends  may fall within  the  authority  that
corresponds to legal custody.  Even so, in this case the  ability
to  control  permanent  fund  dividends  is  a  relatively  small
intrusion on Naomis ultimate discretion.
          2.   Awarding  shared physical custody to a  non-parent
               over  the  objections of a parent  requires  Evans
               findings.
               
          While  we  are  not persuaded that the  superior  court
granted  de facto legal custody to Arletta, the court  did  grant
shared physical custody to Arletta.  As discussed above, a parent
is  entitled  to  a  preference  over  a  non-parent  in  custody
determinations.   Because  the  parental  preference  applies  to
awards  of physical custody as well as legal custody,21  and  the
superior  court  did  not make the factual  findings  that  Evans
requires  before  overriding  the parental  preference,  we  must
reverse  the  order  regarding physical custody  and  remand  for
further proceedings.
               a.   The parental preference applies to awards  of
                    physical custody.
                    
          We  have previously applied the parental preference  to
determinations  of physical custody  even where there  is  little
          dispute regarding legal custody.  In J.W. v. R.J.,22 a superior
court granted a father and a stepfather shared legal custody  but
awarded primary physical custody to the stepfather.23  We reversed
the  custody award because the superior court had not found  that
the  father  was  unfit  to  parent or that  the  childs  welfare
required   primary  physical  custody  to  be  awarded   to   the
stepfather, and remanded for further proceedings to address these
issues.24
          In  Bass  v.  Bass,25 a superior court  awarded  shared
legal  custody to a childs parents but granted temporary physical
custody  to  the  childs paternal grandparents in  light  of  the
mothers  current inability to care for their child.26  We  upheld
this decision because ample evidence in the record supported  the
superior  courts  conclusion  that the  mother  was  unfit,  and,
therefore,   it   was  appropriate  to  override   the   parental
preference.27
               b.   The  superior  court did  not  make  findings
                    sufficient   to   override  Eltons   parental
                    preference pursuant to Evans.
                    
          In  Evans  v. McTaggart, we clarified what standard  of
proof is needed 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.28  The superior court did  not
make any Evans findings in this case.  Neither the courts written
or  oral findings concluded by clear and convincing evidence that
Elton is unfit or that the welfare of the children requires  them
to be in Arlettas custody.  Without such findings, a court cannot
award physical custody to a non-parent over the objections  of  a
parent seeking custody.
          3.   On  remand, the superior court should determine if
               clear  and  convincing evidence exists to  support
               overriding the parental preference only  if  Naomi
               is currently unable to care for her children.
               
          The  shared physical custody arrangement between  Elton
and  Arletta  was  intended  to be  temporary.   On  remand,  the
superior  court  should first address whether the  conditions  of
Naomis  life  in  Florida have improved so that  she  may  assume
physical  custody.  The superior court need not  address  whether
clear  and convincing evidence exists to override Eltons parental
preference  unless Naomi remains unable to care  for  Julian  and
Carmen.29
          If  Naomi is not currently able to care for Julian  and
Carmen,  the  superior court should determine whether  clear  and
convincing  evidence exists indicating that  Elton  is  unfit  to
assume  sole physical custody.  A finding of clear and convincing
evidence that Elton is not fit to be the sole care-giver for  his
children,  if  supported by the record,  would  permit  an  award
splitting physical custody between Elton and Naomi.30
          If  clear  and convincing evidence does not exist  that
Elton  is unfit to be the childrens sole care-giver, the superior
court  should  examine  whether  clear  and  convincing  evidence
          demonstrates that the welfare of the children requires them to
remain,  at  least  part of the time, in  Arlettas  custody.   In
making this determination, the court should remain cognizant that
this  finding  requires more than the conclusion  that  the  best
interests  of  the  children would be served  by  remaining  with
Arletta.31  The court must determine that it would be detrimental
to the child[ren] to permit Elton to have custody.32
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  in
          Awarding Legal Custody to Naomi.
          Elton  maintains  that the superior  court  abused  its
discretion by awarding legal custody to Naomi.  We disagree.  The
problem  facing  the  superior  court  fundamentally  required  a
comparison between Naomi and Elton.  Given the evidence presented
at  trial  and the courts findings, we cannot conclude  that  the
superior court abused its discretion by selecting to grant  legal
custody to Naomi.33
          Elton  advances  two  reasons why  the  superior  court
abused  its discretion by awarding legal custody to Naomi  rather
than  Elton.   First,  Elton contends that it  was  an  abuse  of
discretion  to award legal custody to Naomi because the  superior
court  had  found her unable to meet the childrens needs  because
she  is  jobless, effectively homeless and her job  skill-set  is
marginal.  Second, Elton argues that no evidence was proffered at
trial  showing  that he was not able to care for his  children.34
Neither argument is persuasive.
          1.   Even though Naomi was currently unable to care for
               her children, it was not an abuse of discretion to
               grant her legal custody.
               
          Granting legal custody to a parent who is not currently
able  to  care for the child is not a per se abuse of discretion.
On  several occasions, we have upheld awards of legal custody  or
joint  legal  custody to parents considered presently  unable  to
care for their children.35  This position is conceptually coherent
because  of  the  different requirements of  legal  and  physical
custody.   A  parent  who  temporarily  lacks  the  financial  or
personal resources to physically care for her child may still  be
the  best person to make major decisions regarding how the  child
is  raised in the long term.36  Trial judges are well situated to
determine  if awarding legal custody to a parent facing temporary
economic  or  personal hardships serves the best interests  of  a
child.
          Awarding legal custody to Naomi in this particular case
was  not an abuse of discretion.  Elton appears to argue that the
superior court did not properly ascertain his fitness to  parent,
maintaining  that  once  it concluded that  Naomi  was  presently
unable  to  meet the childrens needs, it should have awarded  him
custody.   However, the superior court considered at  length  the
comparative parenting abilities of Naomi and Elton.  The superior
court noted that in terms of the capability and desire of each of
these parents to meet the childrens needs, theyre both in kind of
tough  shape  at  the  moment.  Nonetheless, the  superior  court
concluded  that Naomis present inability to parent resulted  from
temporary  problems with work and housing, while Eltons inability
          was permanent.
          2.   There  was  substantial  evidence  in  the  record
               supporting  the  superior courts  conclusion  that
               Elton should not have legal custody.
               
            Contrary to Eltons assertions on appeal, the superior
court reviewed ample evidence of Eltons shortcomings as a parent.
The superior court found particularly relevant Eltons history  of
abandoning  his  responsibilities,  his  marginal  judgment,  his
unemployment,  and the fact that dealing with  his  own  personal
problems  would  make  it  difficult for  him  to  be  a  primary
caregiver  to the children.  Eltons brother Ralph testified  that
Elton  has  always  been  a  man that  seems  to  run  away  from
everything.  I mean, constant.  That has been his role; run away,
run  away, run away.  Denise Hudson, the custody investigator  in
this  case, testified that Julian and Carmen told her that  there
was  no  food  in  Eltons house, that they were  left  unattended
during  visitation, and that Elton often spent all day  sleeping.
By Eltons own account, he has been unemployed since July 2003 and
lives on $700 a month in public assistance.
          Based  on  these  facts, we cannot  conclude  that  the
superior  court  abused  its discretion by  awarding  sole  legal
custody to Naomi.
     C.   Awarding Shared Physical Custody to a Non-Party Is  Not
          an Abuse of Discretion.
          
          Elton  argues  that  it was improper  to  award  shared
physical  custody to Arletta because she was not a party  to  the
litigation.  Though we have already reversed the order  regarding
physical custody, we address the propriety of granting custody to
a  non-party because (a) Elton has briefed the issue and  (b)  if
the superior court finds on remand that Evans has been satisfied,
the issue will be fully ripe for decision.
          Arletta, who had sought custody in her answer to Eltons
complaint,  was  dismissed as a defendant by stipulation  at  the
beginning of trial.  Nonetheless, the superior court awarded  her
shared  physical custody of Julian and Carmen after she consented
to  the  arrangement.  In the past, this court has upheld custody
orders  in which a parent was awarded legal custody and  physical
custody  was  granted to the childs grandparents or other  family
members  who had intervened in the custody action.37   Whether  a
superior  court may award physical custody of a child to  a  non-
party grandparent is an issue of first impression for this court.
          We  first  note  that relevant Alaska Statutes  do  not
address the propriety of non-party custody awards.38  We have long
recognized  that  trial courts have broad discretion  to  fashion
appropriate child custody orders.39  This discretion is  dictated
by  statute40 and the complex, fact-intensive nature  of  custody
disputes.  As a general matter, we do not wish to preclude  trial
courts from fashioning custody awards that will better serve  the
interests of children by establishing overly broad prohibitions.41
We  hold  that  it is within the discretion of a trial  court  to
grant  custody to a person who was not a party at the  initiation
of the litigation as long as four conditions are met.
          First,  the  non-party must consent  to  entry  of  the
custody  order and to becoming a party to the litigation.   Elton
argues  that  granting  custody to non-parties  is  inappropriate
because  a  court may not adjudicate the rights of  a  person  or
entity  that is not a party to the action before it.42  As  Elton
points out, courts in other jurisdictions have reversed awards to
non-parties because the courts in question could not bind the non-
parties by the custody order.43  We agree that a court lacks  the
power  to  require  a  non-party to assume custody  of  a  child.
However,  we  are  not  persuaded that this general  rule  should
prevent courts from awarding custody to a non-party when the non-
party  consents  to  the  arrangement.   In  this  case,  Arletta
consented in court to the shared custody arrangement.   If,  upon
remand,  the court determines that custody should be placed  with
Arletta, she must consent to becoming a party to the case.
          Second, the award must comply with Evans.44  It is  not
within the unfettered discretion of a trial court to override the
parental  preference.  A court may grant custody to a  non-parent
only  if  the parents agree to the arrangement, or if  clear  and
convincing  evidence shows that one or both of  the  parents  are
unfit,  or that the welfare of the child requires custody  to  be
with the particular non-party non-parent.
          Third,  a  court may award custody only to a  non-party
who would have been entitled by right to intervene as a party  in
the custody proceedings pursuant to Alaska Civil Rule 24(a).   We
have previously allowed psychological parents45 and grandparents46
to  intervene as parties in custody disputes.  Limiting  possible
non-parties  to those individuals who have standing to  intervene
as a matter of right accomplishes two important goals.  First, it
eliminates  any  temptation to award  a  child  of  disadvantaged
background to an individual or institution unknown to  the  child
based  on the non-partys resources and capacity to care  for  the
child.47  Second, because parents will almost certainly know  all
possible  intervenors, parents will be in a  better  position  to
oppose or agree to a non-party award.
          Lastly,  non-party awards must comply with due process.
Awarding  custody  to  a  non-party  may  implicate  due  process
concerns  when a party lacks notice that such an award  is  being
considered.   In  Anonymous v. Anonymous,48 the  Alabama  Supreme
Court  reversed  an award granting custody to a  childs  paternal
grandparents,  who  were not parties to  the  case,  because  the
mother had not received adequate notice or an opportunity  to  be
heard  on  the  issue of whether the grandparents  should  obtain
custody.49  The court reasoned that the process followed  by  the
trial  court  deprived  the mother of  due  process.50   Alabamas
experience is instructive.  Consequently, we hold that a party to
a  custody  dispute must receive fair notice of  the  possibility
that  custody  could be awarded to a particular non-party.   Fair
notice  must include a reasonable opportunity to marshal evidence
and  present  arguments against a particular non-party  obtaining
custody.
          If the superior court considers awarding some amount of
physical  custody  to Arletta, Elton deserves an  opportunity  to
develop  and  present evidence against such an award.   Prior  to
          trial, Elton had some notice that a custody award to Arletta was
a possibility.  Arletta and Naomi submitted a joint answer to his
complaint,  asking that Arletta be awarded the care, custody  and
control  of the minor children.  Arletta appears to have  dropped
this  claim, however, during a March 3, 2004 hearing  before  the
superior court.  Additionally, since Arletta was dismissed  as  a
party  at  the  beginning of the trial, Elton had  no  reason  to
present evidence against Arletta.  Elton, therefore, did not have
sufficient notice at the time of trial that Arletta might  obtain
custody  and was not able to develop and present evidence against
such  an award.  Consequently, if the superior court contemplates
awarding physical custody to Arletta on remand, it must  hold  an
evidentiary hearing to allow Elton to voice his objections.
          In  sum,  a trial court has discretion to grant custody
to  a  non-party  if (1) the non-party consents,  (2)  the  award
complies  with  the  requirements in  Evans  for  overriding  the
parental  preference, (3) the non-party could have intervened  in
the  custody dispute, and (4) the parties to the custody  dispute
have  sufficient notice of the possibility that a non-party  will
receive custody to satisfy due process.
V.   CONCLUSION
          Because the superior court did not award de facto legal
custody  to  Arletta, a non-parent, in violation  of  Evans,  and
because the court did not abuse its discretion in awarding  legal
custody  to  Naomi, we AFFIRM the superior courts order  awarding
legal custody.  But because the court awarded physical custody to
a  non-parent over the objections of a parent, and failed to make
findings by clear and convincing evidence either that the  parent
was  unfit  or  that  the  welfare of the children  required  the
children to remain with the non-parent, the order awarding shared
physical  custody violated Evans.  Consequently, we  REVERSE  the
order  concerning physical custody and REMAND the matter  to  the
superior  court  for  further proceedings  consistent  with  this
opinion.
_______________________________
     1     Pseudonyms have been used throughout this  opinion  to
protect  the  identity  of  the  parties  and  members  of  their
families.

     2    88 P.3d 1078 (Alaska 2004).

     3    Smith v. Weekley, 73 P.3d 1219, 1225 (Alaska 2003).

     4     Effective on July 1, 2004, the legislature revised  AS
25.24.150(c)(6).   See  ch. 111,  5,   SLA  2004.   The  language
currently in effect reads:

          (6)  the  willingness  and  ability  of  each
          parent  to facilitate and encourage  a  close
          and continuing relationship between the other
          parent  and the child, except that the  court
          may   not   consider  this  willingness   and
          ability,  if one parent shows that the  other
          parent  has sexually assaulted or engaged  in
          domestic  violence against the  parent  or  a
          child,  and  that  a continuing  relationship
          with  the  other  parent  will  endanger  the
          health or safety of either the parent or  the
          child;
          
The  legislature  also added subsections (g) through  (k),  which
make  it  much  more  difficult for  a  perpetrator  of  domestic
violence to obtain any custody or unsupervised visitation of  his
or  her  children.   See  ch. 111,  5,  SLA  2004.   Because  the
superior court issued its findings of fact and conclusions of law
on  June  16,  2004, the court correctly relied  on  the  earlier
version of the law.

     5    Former AS 25.24.150(c) (2003).

     6     Julian was twelve and Carmen eight at the time of  the
trial.   The  superior court noted that Julian is not mature  for
his  age.  See Fardig v. Fardig, 56 P.3d 9, 13 n.13 (Alaska 2002)
(Whether  a  child  is  of sufficient age to  have  a  meaningful
preference for one parent or the other is a question committed to
the discretion of the trial court.).

     7     Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska
2001).

     8    Carter v. Novotny, 779 P.2d 1195, 1198 (Alaska 1989).

     9    Fardig, 56 P.3d at 11; see also Vachon v. Pugliese, 931
P.2d  371,  375  (Alaska 1996) (applying abuse of discretion  and
clear  error  standards  of  review to  custody  dispute  between
parents who never married or formalized custody arrangement).

     10      Fardig,  56  P.3d  at  11  (quoting  Siekawitch   v.
Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).

     11    Id.

     12    See J.W. v. R.J., 951 P.2d 1206, 1210-11 (Alaska 1998)
(parental  preference applies to custody dispute between  natural
father  and  stepfather);  Carter, 779 P.2d at 1197  (recognizing
application  of  parental preference to custody  dispute  between
father  and  maternal aunt); Hickey v. Bell, 391  P.2d  447,  448
(Alaska  1964)  (holding  that parent is  entitled  to  custodial
preference over grandparent seeking custody).

     13    88 P.3d 1078 (Alaska 2004).  In regard to the standard
of  proof  necessary to override the parental  preference,  Evans
overruled a line of cases  including Britt v. Britt, 567 P.2d 308
(Alaska 1977), Buness v. Gillen, 781 P.2d 985 (Alaska 1989), J.W.
v.  R.J., 951 P.2d 1206 (Alaska 1998), and Todd v. Todd, 989 P.2d
141  (Alaska  1999)  which held that, in order  to  overcome  the
parental preference, a non-parent must show by a preponderance of
the evidence that the substantive standard had been met.  Id.  at
1083-84.   Evans also held that clear evidence and clearly  shown
standards   of  proof  employed  in  another  line  of   parental
preference  cases   including Hickey, 391  P.2d  447,  Turner  v.
Pannick, 540 P.2d 1051 (Alaska 1975), Carter, 779 P.2d 1195,  and
C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998)  were consistent  with
the   clear  and  convincing  evidence  standard,  which  is  the
customary  articulation  for  the heightened  standard  of  proof
between  preponderance  of  the  evidence  and  proof  beyond   a
reasonable doubt.  Id. at 1083-85.  Evans did not overrule either
line  of  cases  in  regard to the substantive  law  governing  a
custody dispute between a parent and a non-parent.

     14    Id. at 1085.

     15    Id. at 1087.

     16    See infra note 33 and accompanying text.

     17    See Bell v. Bell, 794 P.2d 97, 99 (Alaska 1990) (noting
that shared legal custody means that parents share responsibility
for making major decisions affecting childs welfare); see also  3
Arnold H. Rutkin, Family Law and Practice  32.08[2] (2004).

     18    Rutkin, supra note 16,  32.08[2].

     19     See  Bennett  v. Bennett, 6 P.3d 724, 727-28  (Alaska
2000).

     20     It  is  troubling that Arletta receives  all  of  the
financial  benefits of physical custody even though the  superior
court  awarded shared custody with Elton.  Since Elton cares  for
the children for roughly half of every week, it is anomalous that
he  does  not  receive  an  equitable portion  of  the  financial
benefits  of  child care.  On remand, the superior  court  should
address this discrepancy.

     21    See J.W. v. R.J., 951 P.2d 1206 (Alaska 1998);  Bass v.
Bass, 437 P.2d 324 (Alaska 1968).

     22    951 P.2d at 1206.

     23    Id. at 1208.

     24    Id. at 1210-11.

     25    437 P.2d 324.

     26    Id. at 324-26.

     27    Id. at 325-27.

     28    Evans, 88 P.3d at 1085.

     29    Alternatively, if upon remand Elton shows a significant
or  substantial change in circumstances, the court may reconsider
the  award of legal custody.  Chesser-Witmer v. Chesser, ___ P.3d
___, 2005WL 1654103 at *6 (Alaska, July 15, 2005).

     30    In its findings of fact, the superior court stated that
Elton  is  able  to  parent,  desperately  wants  to  parent  his
children, and should have the chance to do so to the extent  that
he  is  able.  (Emphasis added.)  This language implies that  the
superior  court found that Elton was incapable of assuming  full-
time  custody.  But such a finding, if it is to be made, must  be
made explicitly and under the correct standard of proof.

     31    A parent cannot be deprived of custody based solely on
the  best  interests of the child.  Turner v. Pannick,  540  P.2d
1051, 1054-55 & n.4 (Alaska 1975).

     32    Id. at 1054.  In deciding Turner, we were guided by the
California  Supreme Courts decision in In re B.G., 523  P.2d  244
(Cal.  1974).  B.G. held that if a parent was fit, custody  could
only be vested in a non-parent if such an award was necessary  to
avert  harm  to the children.  Id. at 258.  Our cases considering
harm  to the children include:  Kinnard v. Kinnard, 43 P.3d  150,
154-55  (Alaska  2002) (awarding custody to non-parent  justified
because  removing  child  from  psychological  parent  would   be
emotionally  devastating); Todd v. Todd,  989  P.2d  141  (Alaska
1999)  (placement  of child with mother instead  of  grandparents
would  have been clearly detrimental to the welfare of the  child
largely  because  child had lived seventy percent  of  life  with
grandparents and was primarily bonded to them); Buness v. Gillen,
781  P.2d 985, 989 (Alaska 1989) (issue of material fact  existed
regarding  whether  emotional bond between child  and  non-parent
required  custody to remain with non-parent); B.J. v.  J.D.,  950
P.2d  113, 117-18 (Alaska 1997) (childs welfare required  her  to
remain  with  non-parent because mother could not provide  stable
home or meet childs needs).

     33     We  note, however, that awarding legal custody  to  a
parent  dwelling over 4,000 miles and four time  zones  from  her
children  approaches the limits of discretion  and  can  only  be
justified under special circumstances.  Such circumstances  exist
here:  The  childrens separation from Naomi  is  expected  to  be
temporary, and Eltons judgment is marginal at best.

     34     Elton  also claims that the superior court ignored  a
number  of  factors  relevant under  AS  25.24.150(c)   including
Naomis   continued  involvement  with  Lance,  and  her   alleged
abandonment of her children.  The record is clear, however,  that
the  superior  court  addressed  these  issues.   The  court  was
cognizant of Lance and his history of abuse but found that  there
were  no  current  domestic  violence  issues  with  Naomi.   The
superior  court  also  found that Naomi  had  not  abandoned  her
children.   Elton  does  not  contend that  these  findings  were
clearly erroneous.

     35    In Bass v. Bass, 437 P.2d 324, 326-27 (Alaska 1968), we
approved a custody order that awarded shared legal custody  to  a
childs  natural  parents  but granted  physical  custody  to  the
grandparents because of the parents present inability to care for
the  child.  In Carter v. Novotny, 779 P.2d 1195, 1197-98 (Alaska
1989), we upheld a custody order granting shared legal custody to
the  father and the childs maternal aunt and physical custody  to
the  aunt.   The  aunt appealed the order claiming  that  it  was
improper  to  award  shared legal custody to a  father  whom  the
superior  court  had  explicitly found  to  be  unfit.   Id.   We
rejected  the aunts claim.  Id. at 1198-99.  See also  C.R.B.  v.
C.C.,  959 P.2d 375, 381 n.12 (Alaska 1998) (expressing  approval
for  practice of vesting custody temporarily in a nonparent until
a  parent can get his or her life sufficiently together to resume
custody).

     36    See, e.g., Bass, 437 P.2d at 327 & n.13-14.

     37    See, e.g., Bass, 437 P.2d at 326-27.

     38     For  example, AS 25.20.060 mandates that trial courts
shall  award  custody on the basis of the best interests  of  the
child  but  does not specify that only a party to the action  may
receive custody.

     39    Carter, 779 P.2d at 1198-99.

     40     See  AS 25.20.060 (court shall award custody  on  the
basis of the best interests of the child . . . consider[ing]  all
relevant factors . . .); AS 25.24.150(c) (listing nine factors to
be considered in making best interests finding).

     41    See Nail v. Clavier, 745 So. 2d 1221, 1223-24 (La. App.
1999)  (stating that allowing court to award custody to non-party
upon appropriate proof that parent was unfit was sound rule which
allows  the trial court the necessary flexibility to do  what  is
necessary in the best interest of the child.) (internal quotation
omitted).

     42     Alaska  Marine Pilots v. Hendsch, 950  P.2d  98,  112
(Alaska 1997).

     43    E.g., T.S. v. M.C.S., 747 A.2d 159, 163-64 (D.C. 2000);
Bonne v. Bonne, 174 S.E.2d 833, 835 (N.C. App. 1970).

     44    See supra Part IV.A.

     45     We have held that those relationships that affect the
child  which are based upon psychological rather than  biological
parentage may be important enough to protect through custody  and
visitation,  to ensure that the childs best interests  are  being
served.   Buness  v. Gillen, 781 P.2d 985, 987-88 (Alaska  1989).
For  when a non-parent can be considered a psychological  parent,
see Kinnard v. Kinnard, 43 P.3d 150, 153-54 (Alaska 2002).

     46    See Todd v. Todd, 989 P.2d 141, 142 (Alaska 1999).

     47    This temptation should be extinguished by the parental
preference.   However, this requirement emphasizes  that  a  best
interests  analysis  cannot be substituted  for  the  test  under
Evans.

     48    353 So. 2d 515 (Ala. 1977).

     49    Id. at 519.

     50    Id.