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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Cusack v. Cusack (03/13/2009) sp-6345

Cusack v. Cusack (03/13/2009) sp-6345, 202 P3d 1156

     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,


) Supreme Court No. S- 13089
) Superior Court No. 3AN-98- 3212 CI
v. )
) O P I N I O N
JOHN P. CUSACK, ) No. 6345 - March 13, 2009

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   G.  R. Eschbacher,  Anchorage,
          for Appellant.  Kathleen A. Weeks, Anchorage,
          for Appellee.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, and Winfree, Justices.  [Carpeneti,
          Justice, not participating.]

          WINFREE, Justice.

          Divorced  parents  dispute custody of  their  daughter.
The  mother  appeals  the  most recent  superior  court  decision
(1)  awarding  sole  legal and primary physical  custody  to  the
father,  (2)  authorizing  the father to  send  the  daughter  to
boarding school, and (3) rejecting the mothers request for court-
ordered  family  therapy.  Because the courts  findings  are  not
clearly erroneous and the court did not abuse its discretion,  we
          John and Gretchen Cusack married in May 1988, and their
daughter was born in October 1993.  John and Gretchen divorced in
December 1998.  The post-divorce custody order issued in 2000  by
Superior Court Judge Sen K. Tan provided for joint legal  custody
and  for  primary physical custody with Gretchen,  who  was  then
living in Colorado.  The custody order also provided John regular
visitation in Alaska.
          In   August   2003   Judge  Tan  entered   an   interim
modification order for the daughter to remain in Alaska with John
as the primary physical custodian,  providing for visitation with
Gretchen  only in the Anchorage area.  The order was precipitated
by  a letter to the State of Alaska, Division of Family and Youth
Services, from two of the daughters therapists in Colorado.   The
letter  described  the  daughters reports  of  Gretchens  violent
outbursts,  often  involving physical altercations.   The  letter
also described physical and verbal outbursts between Gretchen and
John  in the daughters presence and noted that Gretchen continues
to deny to [the daughter] that the couple is divorced.
          Judge  Tan appointed a new custody investigator  and  a
guardian  ad  litem for the daughter.  The custody  investigator,
Susan  Arth, recommended that John be awarded sole legal  custody
and  primary  physical  custody  and  that  Gretchen  be  granted
visitation.  Arth found problems with each parent, but ultimately
concluded  that the daughter desperately wants to be with  Father
and it would be untenable for the child to be forced to remain in
a  situation  where  her  primary relationship  is  fraught  with
stressful  conflict.  In September 2003 Judge  Tan  modified  the
interim  order  to  give  John sole legal  and  primary  physical
custody  of the daughter, with visitation for Gretchen.  After  a
full evidentiary hearing in March 2004, Judge Tan entered a final
order mirroring the September 2003 interim order.
          In  January  2006  Judge Tan appointed  a  new  custody
investigator,  Pamela  Montgomery,  to  determine   whether   the
visitation  schedule  should  be  revised  because  Gretchen  had
returned to Alaska from Colorado.  Judge Tan subsequently ordered
a  full custody investigation.  Montgomerys initial October  2006
report  was  critical  of both parents.  She  reported  that  the
daughter  described  conflicts with Gretchen that  escalate  into
huge  verbal  arguments  and, at times, physical  confrontations.
She  also reported her own observation of a confrontation between
Gretchen  and the daughter that came close to physical  violence.
While   also  critical  of  Johns  loud  and  occasionally  crass
behavior,  she reported that the daughter has done  well  in  her
fathers care.
          Montgomery   filed   another   report   in   May   2007
recommending  that  the  daughter be enrolled  in  a  residential
college-prep  boarding school outside of  Alaska,  and  that  her
in-person  contact  with her parents be limited  to  summers  and
school vacations only.  Montgomery alternatively proposed:
          If the Court and parents dont choose to allow [the
          daughter]  to disengage from this custody  dispute
          by  attending  a boarding school and limiting  her
          contact  with  both  her  parents,  then   it   is
          suggested  that  [she] spend two  weeks  with  her
          mother  and  two weeks with her father during  the
          school  year, half of the summer with each parent,
          alternating  winter breaks and alternating  spring
          breaks.   During that two week time period,  there
          would be no in-person contact at all between  [the
          daughter]  and the other parent, and no  telephone
          contact . . . unless initiated by [the daughter].
          In  April 2008 Judge Tan ordered that John retain  sole
legal  custody  and  primary  physical  custody,  including   the
authority  to  send  [the daughter] to boarding  school  for  the
childs  educational,  emotional,  mental  and  physical  benefit.
Judge  Tan  rejected  Gretchens request for court-ordered  family
therapy  and concluded that Gretchens visitation rights  depended
upon  whether John chose to send the daughter to boarding school.
A visitation schedule was crafted for each alternative.
          Gretchen appeals.
          The   superior  court  has  broad  discretion  in   its
determination of child custody.1  We will not set aside  a  lower
courts  child  custody determination unless its factual  findings
are  clearly  erroneous or unless it abused its discretion.2   We
will  set  aside  a lower courts underlying factual  findings  as
clearly  erroneous  only when our review  of  the  entire  record
leaves us with a definite and firm conviction that a mistake  has
been  made.  3   In a child custody case, abuse of discretion  is
established  if the trial court considered improper  factors,  or
improperly weighted certain factors in making its determination. 4
     A.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Granting  Sole  Legal and Primary Physical  Custody  to
          1.   Consideration of statutory factors and evidence

          The  superior court considered the modification  of  an
existing  award of custody and visitation, an action governed  by
AS  25.20.110(a).5   Modification of  child  custody  requires  a
determination of the best interests of the child by weighing nine
factors set out in AS 25.24.150(c).6  Gretchen concedes that  the
court  considered the eight expressly identified factors  in  the
statute, but argues that the court abused its discretion  by  not
considering other evidence under the ninth catch-all provision of
the statute.
          Gretchen specifically argues that the court should have
considered  the  need  for the mother and child  to  reunite  and
related testimony from Gretchens family therapist and the custody
investigator.   Gretchen points to evidence  of:   (1)  the  rift
between  Gretchen  and her daughter; (2) the  likelihood  that  a
rotating  physical custody schedule combined with  therapy  would
help  the  relationship; and (3) Gretchens commitment to therapy.
Gretchen argues that by not considering this evidence, the  court
abused its discretion in reaching its determinations.
          The superior courts determination of the daughters best
          interests included a discussion of each of the factors specified
in  the  statute.  In its discussion of the second  factor  (each
parents capability and desire to meet the childs needs) the court
noted  the  rift between Gretchen and her daughter, but concluded
the  testimony  of  both the custody investigator  and  Gretchens
therapist  suggested  that Gretchen and  her  daughter  would  be
unlikely to achieve a normal, healthy relationship.  The  custody
investigator testified she was concerned about the potential  for
conflict  including physical conflict  between Gretchen  and  her
daughter  and  that conflict might be exacerbated by  a  rotating
physical  custody schedule.  Gretchens family therapist testified
at  length about relationship problems between Gretchen  and  her
daughter.  He testified that a two-week rotating physical custody
schedule  would benefit the relationship, but also  testified  to
maybe a fifty-percent chance of success with therapy over a  two-
to  three-year period.  Contrary to Gretchens argument, the court
expressly  considered the issue Gretchen has raised and therefore
did  not  abuse its discretion by failing to separately  consider
that issue under the catch-all provision of AS 25.24.150(c)(9).
          Gretchen  also argues that the superior court erred  by
considering  the  daughters  custody  preference  without   first
determining  that  the  daughter  had  the  capacity  to  form  a
preference  or  specifying  how much weight  it  was  giving  the
daughters  preference.   The  court did  consider  the  daughters
capacity  to form a preference, expressing some doubt  about  the
independence  and integrity of the daughters judgment.   But  the
custody investigator concluded the daughter was mature enough  to
express  a  preference,  and in 2004  the  court  had  found  the
daughter  was  sufficiently mature to express a  preference.   If
anything,  the courts expression of doubt regarding the daughters
judgment suggests that it gave her preference less weight than it
otherwise  might have.  Given the courts previous assessment  and
the  custody investigators conclusion that the daughter  had  the
capacity to express a preference, it was not error for the  court
to consider the daughters preference.
          Gretchen  argues that the superior court gave too  much
weight  to  the  custody investigators testimony  and  failed  to
consider  the  testimony  of the family therapist  who  had  been
seeing  both  Gretchen and her daughter.  Gretchen suggests  that
when  [the  custody investigators] testimony  is  viewed  in  the
context of the entire trial record, the trial courts reliance  on
that  testimony  is erroneous and ignores the basic  needs  of  a
child-parent relationship and its importance.  But Gretchen  also
argues that the superior court did not follow the recommendations
of  [the]  custody  investigator.  It is unclear  from  Gretchens
briefing  whether she believes the court gave too much weight  to
the  custody  investigators report and testimony, or insufficient
          The  court  did rely heavily upon the findings  of  the
custody  investigator, but the record does not suggest the  court
gave  the custody investigators findings more deference than they
were  due.  The custody investigator spent significant  time  and
energy  compiling thorough reports on this family, and the  court
relied  upon  these reports because they were the  product  of  a
lengthy and impartial investigation.  We have noted that a  trial
court  need not credit every witnesss testimony equally, provided
that  the  evidence  as a whole supports the courts  decision.  7
Because the evidence supports the courts conclusions, reliance on
the custody investigators findings was not erroneous.
          2.   Legal and primary physical custody
          Gretchen  argues that the superior court erred  in  not
awarding  joint  legal custody and that this case  should  be  an
exception  to  the  general  rule that  joint  legal  custody  is
inappropriate if the parents cannot communicate effectively.  The
exception  is  warranted, Gretchen argues, because  much  of  the
fault for the parents inability to communicate lies with John and
because  she  would  otherwise  have  no  input  about  parenting
          Gretchen  claims the court simply ignored the issue  of
custody and focused on visitation.  In fact the court found  that
changed  circumstances supported consideration of a  modification
to  the custody award as well as to the visitation schedule,  but
ultimately  decided that a change of custody  was  not  warranted
because  [t]he parents still do not communicate well  enough  for
this court to revisit the issue of legal custody.

          Both  parties  acknowledge  that  joint  legal  custody
requires  the  parents to be able to cooperate in the  making  of
decisions regarding a minor child.8  The parties agree that  they
do  not  have  good communication, a conclusion with  substantial
support  in  the  record.  In light of the parents  inability  to
communicate  or  to act appropriately with one another  and  with
professionals involved in the daughters care, awarding sole legal
custody to John was not error.9
     B.   The  Superior  Court Did Not Abuse  Its  Discretion  by
          Refusing To Order Family Therapy.
          Gretchen  argues  that the superior  court  abused  its
discretion when it did not order additional family counseling and
instead  left  the  decision to John.  The  consequence  of  this
decision,  Gretchen argues, will be a de facto severance  between
mother and child.
          We  first  note  there  is nothing  in  the  record  to
indicate  that  John  intends  to discontinue  or  interrupt  the
daughters  counseling sessions.  But there is ample  evidence  in
the  record to support a conclusion that family therapy  sessions
were not working and had minimal chance of success.  There is  no
significant   factual  support  in  the  record   for   Gretchens
proposition that failure to order counseling will result  in  the
severance  of  her relationship with her daughter.   Instead  the
record supports Johns assertions that family therapy sessions had
not  been  very successful and, specifically, that nine years  of
counseling had not much improved Gretchens relationship with  the
daughter.  The family therapist estimated that there was maybe  a
fifty-percent  chance  of  success,  but  others,  including  the
daughter and the prior therapists who had worked with the family,
          were less optimistic.  On this record, it was not an abuse of
discretion  for  the  court to conclude that ordering  additional
family counseling sessions was not advisable.
     C.   The  Superior Court Did Not Err or Abuse Its Discretion
          when It Authorized John To Enroll the Child in Boarding
          Gretchen argues that the superior court erred  when  it
entered an order allowing John to send the daughter to an out-of-
state    boarding   school,   per   the   custody   investigators
recommendation.  Gretchen makes many arguments, but her  position
can  be  condensed  to  these points:  (1)  the  court  erred  by
allowing  a  third  party (a boarding school)  to  have  physical
custody  of  the  daughter; and (2) the court erred  by  limiting
Gretchens  access to the daughter.  Gretchen also challenges  the
custody  investigators testimony and recommendation to  send  the
daughter to boarding school.
          The  superior  court identified the  primary  issue  as
whether giving Mr. Cusack the option of sending [the daughter] to
boarding  school  implicates the non-party analysis  set  out  in
[Alaska  precedent].  (Emphasis in original.)  The court observed
that this was a question of first impression in Alaska and looked
to decisions from other jurisdictions.  The court noted that:
          In the course of daily affairs, parents leave
          their children with various caretakers,  such
          as  daycare, schools, sports programs, summer
          camps,    babysitters,   and   friends    and
          relatives.   Although such persons  have  the
          child and stand in loco parentis, they do not
          have any claim of custody.
The  court then concluded that the decision to send the  daughter
to  boarding school should rest with the sole legal custodian and
primary  physical  custodian  John  and issued  a  custody  order
providing alternative visitation guidelines if the daughter  went
to a boarding school or if she remained in Anchorage.
          The first question presented to us is whether placing a
child in boarding school is the equivalent of giving custody to a
third  party.  In Evans v. McTaggart we emphasized that  a  court
must not grant custody to a non-parent absent clear evidence that
a  parent  is  unfit  or  that  his or  her  custody  is  clearly
detrimental.10   We  agree with the superior  court  that  merely
sending  a  child  to boarding school does not  confer  legal  or
physical  custody  on  the  school and  does  not  implicate  the
considerations of Evans.
          This  does not end the inquiry, as Gretchen also claims
that  allowing  John  to  send the daughter  to  an  out-of-state
boarding school imposes an other than normal and usual visitation
schedule with the child that is severely restrictive and close to
supervised visitation.  Although Gretchen would see less  of  her
daughter if she goes to a boarding school, half of her summer and
other  vacations would still be spent with Gretchen.  Other  than
the  opinion of a single therapist, Gretchen offered no  evidence
that  this schedule would be detrimental to her relationship with
          her daughter.  On the other hand, the record is filled with
evidence  suggesting that time spent apart from her parents  will
benefit  the  daughter  and will ease  the  way  to  a  healthier
relationship  with  both parents.  The court did  not  abuse  its
discretion by determining that the separation imposed by boarding
school would be in the best interests of the child and fashioning
an accommodating visitation schedule.
          For  the  reasons stated above, we AFFIRM the  superior
courts decision in its entirety.
     1     Blanton v. Yourkowski, 180 P.3d 948, 951 (Alaska 2008)
(citing  Borchgrevink v. Borchgrevink, 941 P.2d 132, 134  (Alaska

     2     Id.;  Millette v. Millette, 177 P.3d 258, 261  (Alaska

     3      Millette,  177  P.3d  at  261  (quoting  Dingeman  v.
Dingeman, 865 P.2d 94, 96 (Alaska 1993)).

     4     Id.  (quoting  Gratrix v. Gratrix,  652  P.2d  76,  80
(Alaska 1982)).

     5    AS 25.20.110(a) provides:

          An  award of custody of a child or visitation with
          the  child may be modified if the court determines
          that  a  change  in  circumstances  requires   the
          modification of the award and the modification  is
          in  the  best interests of the child.  If a parent
          opposes  the modification of the award of  custody
          or  visitation with the child and the modification
          is  granted, the court shall enter on  the  record
          its reason for the modification.
     6    Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (holding
that  after  a  threshold finding of changed  circumstances,  the
trial  court should determine the best interests of the child  in
deciding  whether  to modify a custody award).   AS  25.24.150(c)
sets out the factors to be considered in that determination:

          (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 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;
          (7)  any  evidence  of  domestic  violence,  child
          abuse,  or child neglect in the proposed custodial
          household  or  a history of violence  between  the
          (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
     7     Chesser v. Chesser-Witmer, 178 P.3d 1154, 1159 (Alaska
2008)  (quoting  Ebertz  v. Ebertz, 113  P.3d  643,  648  (Alaska

     8     See, e.g., Lone Wolf v. Lone Wolf, 741 P.2d 1187, 1189
(Alaska  1987)  ([C]ooperation between parents  is  essential  if
joint custody is to be in the childs best interest.); Farrell  v.
Farrell,  819 P.2d 896, 899 (Alaska 1991) ([J]oint legal  custody
is   only   appropriate  when  the  parents  can  cooperate   and
communicate in the childs best interest.).

     9    Gretchen alternatively argues that she should have been
awarded sole legal custody, at least during the periods in  which
she  is to have physical custody.  But as noted above, the record
supports the decision to maintain full legal custody with John.

     10    Evans v. McTaggart, 88 P.3d 1078, 1085 (Alaska 2004).

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