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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Rego v. Rego (8/12/2011) sp-6587

Rego v. Rego (8/12/2011) sp-6587, 259 P3d 447

        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,   email 


MICHAEL P. REGO,                                ) 
                                                )       Supreme Court No. S-13650 
                        Appellant,              ) 
                                                )       Superior Court No. 4FA-08-02185 CI 
        v.                                      ) 
                                                )       O P I N I O N 
JOANNA M. REGO,                                 ) 
                                                )       No. 6587 - August 12, 2011 
                        Appellee.               ) 

                Appeal from the Superior Court of the State of Alaska, Fourth 
                Judicial District, Fairbanks, Michael A. MacDonald, Judge. 

                Appearances:   Bonnie   J.   Coghlan,   Law   Office   of   Rita   T. 
                Allee, P.C., Fairbanks, for Appellant.         Joanna Rego, pro se, 
                Fairbanks, Appellee. 

                Before:      Carpeneti,     Chief    Justice,   Fabe,   Winfree,     and 
                Stowers, Justices. [Christen, Justice, not participating.] 

                CARPENETI, Chief Justice. 


                A child lived with both of his parents for the first two years of his life.  His 

parents then separated, and they shared custody of the child for about a year, first under 

an informal agreement and later under the terms of the divorce decree. Less than a month 

after the divorce decree was entered, the father notified the mother that he intended to 

relocate to his former home state.  Following a hearing, the superior court ruled that the 

planned move constituted a change of circumstances that justified custody modification. 

----------------------- Page 2-----------------------

Applying a best interests analysis, the superior court awarded custody to the mother if 

the   father   moved.    Because   the   superior   court   applied   the   correct   legal   standard 

concerning the planned move, and did not abuse its discretion in weighing the best 

interest factors, we affirm. 


                Joanna and Michael Rego married in Fairbanks on September 18, 2004. 

Michael   had   moved   to   Alaska   from   New   Jersey,   where   he   had   worked   as   a   gas 

technician. He has family in both New Jersey and the Fairbanks area. Since high school, 

Joanna has lived primarily in the area around Fairbanks and Nenana; she has an extended 

network of family and friends around Fairbanks. 

                Joanna and Michael had one child together, a son, Dante, who was born in 

April 2006.      The parties agree that Dante has the ordinary needs of a child his age. 

Joanna's three daughters from prior relationships lived with Michael and Joanna during 

their marriage.    Joanna, Michael, the custody investigator, and several other witnesses 

agreed that Dante has a close relationship with his half-sisters, especially with the middle 


                Michael has stated that during their marriage he was "primarily responsible 

for Dante's day to day care while [Joanna] worked nights."               By contrast, Joanna has 

asserted that she "was primarily responsible for Dante's day to day care" during their 

marriage, including staying home with Dante during his first year of life.  When Dante 

turned one, Michael and Joanna agreed that she would begin to work a late shift at Fred 

Meyer and stay with Dante until Michael got home from work. Joanna testified that after 

Dante turned two, she and Michael agreed that she should increase her hours at work to 

raise the family income.      Michael testified that he watched Dante during the evenings 

when Joanna was at work. 

                A.     Divorce And Initial Custody Agreement 

                                                 -2-                                            6587

----------------------- Page 3-----------------------

                Joanna filed for divorce in July 2008.  When the parties separated, Joanna 

and her daughters moved out.  Michael remained in the Moose Creek home that he and 

Joanna had purchased together. 

                After the separation, Dante spent time with each parent.              During the first 

five months, a formal visitation schedule was not yet in place.  On December 19, 2008, 

the parties filed a child custody, visitation, and support agreement with the court. 

                The   agreement   detailed   how   Michael   and   Joanna   would   cooperate   on 

various child-rearing issues including child support, health insurance, tax deductions, and 

permanent fund dividends.         The agreement provided for shared physical custody on a 

70/30 schedule where Michael would have five overnights with Dante each week and 

Joanna would have two overnights with Dante each week on days when she was not 

working.      The agreement set out a special schedule for holidays.              It provided for the 

possibility of relocation as follows: 

                Neither   party   plans   to   move   from   the   greater   Fairbanks, 
                Alaska area at this time.      If a party plans to move from this 
                area, that party shall give the other party 180 days notice 
                prior to the move.  This notice is for the purpose of allowing 
                enough   time   to   attempt   to   reach   an   agreement   regarding 
                custody and visitation or to allow one of the parties to file a 
                motion for the court to determine the custody and visitation 
                arrangement   that   is   in   the   child's   best   interests   under   the 
                circumstances that will exist after the party's move.           Unless 
                otherwise ordered by the court, the child will remain with the 
                parent living in the Fairbanks community until further court 

The parties agreed to "work together in rearing the child."              Joanna and Michael each 

cared for Dante and contributed to his continued development between December 2008, 

when the agreement was reached, and September 2009, when the case went to trial. 

Under the agreement, Michael had custody of Dante from 6 p.m. on Saturdays to 2:30 

p.m. on Thursdays, while Joanna had Dante for the remainder. 

                                                  -3-                                             6587

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        B.      Motion For Modification 

                Michael lost his job in Alaska in December 2008, the same month that the 

divorce decree was entered.   Michael testified that because he had been tardy and absent 

from work several times during the final months of his marriage, he was "the easiest one 

to let go" during the recent economic decline.  Michael later found a job and "prospects 
for career advancement" in New Jersey, his former home state.1 

                In   January    2009,    Michael    notified   Joanna    of   his  intent  to  leave   the 

Fairbanks area. The parties sought to reach a new agreement regarding ongoing custody 

and visitation, but were unsuccessful. 

                In   March,   Michael   filed   a   motion   requesting   that   the   court   award   him 

primary   custody,   allow   Dante   to   move   with   him   to   New   Jersey,   and   provide   for 

reasonable visitation with Joanna.         Joanna opposed the modification. She, too, sought 

primary custody of Dante with reasonable visitation for the other parent. 

        1       Michael testified that he looked for work in the Fairbanks area, including 

looking for work at the University of Alaska at Fairbanks, the Alaska Railroad, and union 
halls.   In response to questioning from the court, Michael stated that he decided to move 
to New Jersey three or four months after he was let go from his job.                 Michael testified 
that in New Jersey, there are more employment opportunities to work in his field as a 
small-appliance gas technician.          He testified that he secured interim employment at 
Vanguard Pest Control and hopes that after passing a journeyman test, he will be able to 
secure a job with a New Jersey utility company where he once worked. 

                When questioned by the court, Michael testified that he decided to move 
to New Jersey "about three or four months after [he] was let go from [his] job."                  There 
was also evidence in the record that Michael made this decision earlier:  In a January 5 
filing, Joanna asked the court to prevent Michael from taking Dante to New Jersey at the 
end of the month. 

                The     court  found    that  Michael's     reasons    for  moving     were   legitimate 
"[a]lthough his testimony regarding the timing of the decision [was] not credible."                    In 
particular,   the   court   found   that   "as   of   January   2009[,]   Michael   intended   to   leave 

                                                   -4-                                             6587

----------------------- Page 5-----------------------

        C.      Custody Investigator's Report 

                On   Michael's   motion,   the   superior   court   appointed   Ted   Sponsel   as   a 

custody investigator.   The investigator concluded that each parent was "in serious need 

of parenting training," but "both parents clearly love Dante and . . . he is unlikely to be 

harmed when in the care of either         parent."    The investigator added, "in fact, [Dante's] 

precociousness,   assertiveness   and   generally  genial   temperament   are   a   testament   to 

[Joanna and Michael's] good parenting thus far." 

                Sponsel made the following recommendations:                 If Michael remained in 

Fairbanks, Dante should stay with Michael four nights per week and Joanna's custody 

should   be   increased   to   three   nights   per   week.  If  Michael   relocated   to   New   Jersey, 

Michael should have primary custody of Dante while Joanna should have summers and 

vacations with Dante.   At trial, the investigator clarified that, if Michael moved to New 

Jersey and was awarded primary custody, Dante should stay with Joanna for the entire 
summer rather than following a customary graduated schedule.2 

        D.      Superior Court Trial And Post-Trial Orders 

                Superior Court Judge Michael A. MacDonald conducted a three-day trial 

in September 2009 and heard extensive testimony about Dante's needs, Michael's and 

Joanna's parenting behaviors, and other circumstances affecting Dante's development. 

In   addition   to   the   facts   discussed   above,   the   court   heard   testimony   about   Joanna's 

relationship history; problems at the end of Joanna's and Michael's marriage; Joanna's 

close relationships with her daughters' paternal grandmothers; and Michael's plans to 

enroll in parenting classes. 

                Following the trial, the superior court awarded Joanna primary physical 

custody during the school year, setting out a schedule for summer and holiday visitation 

        2       A customary graduated schedule gives the non-custodial parent one week 

of summer visitation for every year of the child's age. 

                                                  -5-                                               6587 

----------------------- Page 6-----------------------

with Michael.      The court concluded that Michael had legitimate reasons for moving to 

New Jersey. But the court did not accept the custody investigator's recommendation that 

Dante should move to New Jersey with Michael, noting "both the father and the custody 

investigator overstate the relationship between the father and son when they characterize 

it as primary and the mother's as secondary." According to the court, Dante had primary 

bonds of love and affection with both parents, each parent was able to care for him, and 

it   would   be   desirable   to   maintain   custody   with   either   parent. In   awarding   primary 

custody to Joanna, the court reasoned that Joanna was the more experienced parent, 

better able to provide for Dante's needs (particularly his need to maintain his sibling 

relationships) and more willing to facilitate Dante's relationship with Michael. 

                Michael appeals the superior court's custody modification order.               He has 

stayed in the Fairbanks area pending this appeal and filed a motion for interim custody. 
On December 28, 2009, Judge MacDonald held a hearing on this motion.3  He concluded 

that as long as Michael lives in Fairbanks, there has been no change of circumstances that 

requires modification and the pre-modification custody arrangement will remain in effect. 


                Whether the superior court applied the correct legal standard is a question 

of law that we review de novo, "adopting the rule of law that is most persuasive in light 
of precedent, reason and policy."4         Trial courts have broad discretion in determining 

whether a proposed child-custody modification is in the child's best interests.5             We will 

        3       Pursuant to our order of  February 11, 2010, the transcript of this post-trial 

hearing is included in the record before us. 

        4       McQuade v. McQuade, 901 P.2d 421, 423 n.3 (Alaska 1995) (citing Cox 

v. Cox, 882 P.2d 909, 913 (Alaska 1994)) (internal quotation marks omitted). 

        5       See Ebertz v. Ebertz, 113 P.3d 643, 646 (Alaska 2005) (citing Smith v. 


                                                  -6-                                              6587 

----------------------- Page 7-----------------------

set aside the superior court's best interests determination only if the trial court abused its 

discretion   or   if   the   fact   findings   on   which   the   determination   is   based   are   clearly 
erroneous.6  Assigning disproportionate weight to particular factors while ignoring others 

is an abuse of discretion.7      We will conclude that a factual finding is clearly erroneous 

if, based on a review of the entire record, the finding leaves us with a definite and firm 

conviction that a mistake as been made; we may conclude a finding is clearly erroneous 
even if there is some evidence in the record to support the finding.8  "We give 'particular 

deference' to the trial court's factual findings when they are based primarily on oral 

testimony, because the trial court, not this court, performs the function of judging the 
credibility of witnesses and weighing conflicting evidence."9 


                In appealing the custody modification order that grants Joanna primary 

physical custody of Dante when Michael moves to New Jersey, Michael argues that the 

superior court committed legal error by holding his decision to move to New Jersey 

against him.  He further argues that the superior court abused its discretion by assigning 

too   much   weight   to   Dante's   sibling   relationships   and   geographical   stability   while 

overlooking      Joanna's    dangerous     behaviors     and   the  stability  offered   in  Michael's 

household. Joanna filed pro se a brief, which defends the superior court's custody award. 

        5       (...continued)

Weekley, 73 P.3d 1219, 1222 (Alaska 2003)).

        6       Id. (citing Hamilton v. Hamilton, 42 P.3d 1107, 1111 (Alaska 2002)). 

        7       Id. (citing Barrett v. Alguire, 35 P.3d 1, 5 n.5 (Alaska 2001)). 

        8       Id. (citing Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000)). 

        9       Id. (citing In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska 2001)). 

                                                   -7-                                            6587

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                Alaska Statute 25.20.110 authorizes courts to modify child-custody and 

visitation    awards    if  (1)  there   has   been   a change     in  circumstances      that   justifies 
modification and (2) the modification is in the best interests of the child.10             The moving 

party is required to show a substantial change in circumstances, as a threshold matter, 
before the court moves on to consider the best interests analysis.11  "We have held that 

a custodial parent's decision to move out-of-state . . . amounts to a [substantial] change 
in circumstances as a matter of law."12  Both parties acknowledge that Michael's decision 

to relocate to New Jersey constitutes a change in circumstances that justifies modification 

under AS 25.20.110. 

                Two   statutes   guide   the   superior   court's   best   interests   determination: 
AS     25.20.110,    the   modification     statute   cited   above,   and    AS       The 

modification statute directs courts to consider "the past history of the parents with respect 
to their compliance with . . . agreements relating to the child or to other children."14 

Alaska Statute 25.24.150(c) directs the court to "determine custody in accordance with 

the best interests of the child," considering the following nine factors: 

        10      Melendrez   v.   Melendrez,   143   P.3d   957,   962   (Alaska   2006)   (affirming 

custody modification where both prongs satisfied). 

        11      Maxwell v. Maxwell, 37 P.3d 424, 426 (Alaska 2001) (concluding that 

superior court was not required to make best interests determination where moving party 
failed to show substantial change in circumstances). 

        12      Barrett,   35   P.3d   at   6   (quoting Acevedo   v.   Liberty,   956   P.2d   455,   457 

(Alaska 1998)) (internal quotation marks omitted) (alteration in original). 

        13      Alaska Statute 25.24.150 governs judgments for custody that arise from 

divorce actions and other proceedings.   Under the statute, courts have broad authority to 
make, modify, and vacate custody and visitation orders where necessary or proper.  See 
AS 25.24.150(a). 

        14      AS 25.20.110(b). 

                                                   -8-                                             6587

----------------------- Page 9-----------------------

                (1)   the   physical,   emotional,   mental,   religious,   and   social 
                needs of the child; 

                (2)  the   capability   and   desire   of   each   parent   to   meet   these 

                (3) the child's 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 

                (5)    the  length   of   time   the  child   has   lived   in  a  stable, 
                satisfactory environment and the desirability of maintaining 

                (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 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; and 

                (9) other factors that the court considers pertinent. 

Alaska Statute 25.24.150(d) directs that the court may consider "only those facts that 
directly affect the well-being of the child."15 

        15      AS 25.24.150(d). See also S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 

1985) ("We have often endorsed the requirement that there be a nexus between the 
conduct of the parent relied on by the court and the parent-child relationship."). 

                                                   -9-                                              6587 

----------------------- Page 10-----------------------

              We have decided a number of custody-modification appeals arising from 
parents' plans to relocate.16 As we have explained, in such cases the superior court must 

assess   "whether there are legitimate reasons for the move . . . [and] the impact of the 
move on the child."17  A move is legitimate if it is not primarily motivated by a desire to 

make visitation more difficult.18   In this case, the superior court found that Michael's 

move to New Jersey was "motivated by a desire to seek employment in Newark and to 

return to his hometown where he has extended family." The court added, it was "not 

motivated by a desire to interfere with the relationship between Dante and his mother." 

Thus, the superior court concluded that the reasons for Michael's move were legitimate. 

Joanna does not contest this conclusion on appeal. 

              Once the relocating parent has madethe threshold showing that a legitimate 

move justifies custody modification, there is no presumption favoring either parent when 
the court considers the child's best interests.19  The relocating parent secures primary 

custody by showing that living with that parent in a new environment better serves the 

child's interests than living with the other parent in the current location.  In undertaking 

this analysis, the superior court must assume that the legitimate move will take place and 

       16     See, e.g., Moeller-Prokosch v. Prokosch, 99 P.3d 531, 533 (Alaska 2004) 

[hereinafter Moeller-Prokosch III]. 

       17     Barrett, 35 P.3d at 6 (quotingMoeller-Prokosch v. Prokosch, 27 P.3d 314, 

317 (Alaska 2001) [hereinafterMoeller-Prokosch I]) (internal quotation marks omitted). 

       18     Moeller-Prokosh I, 27 P.3d at 316. 

       19     See McQuade v. McQuade, 901 P.2d 421, 424 (Alaska 1995) (approving 

the proposition that "if parents have joint physical custody and one parent seeks to move 
the child, 'the appropriate standard would be similar to a de novo review that would be 
made at an initial custody determination' "). 

                                            -10-                                       6587

----------------------- Page 11-----------------------

consider the consequences that the move will have on the child - both positive and 

                Michael's briefing draws an analogy between the facts of this case and the 

Moeller-Prokosch v. Prokosch cases.   In those cases, we made it clear that the superior 
court   may   not   hold   a   legitimate   move   against   a   relocating  parent.21   The  Moeller- 

Prokosch  cases   set   the   governing   standard   for   custody   decisions   involving   parental 

relocation. Once a parent has shown that the decision to relocate is a legitimate one, then 

        20      Eniero   v.   Brekke,   192   P.3d   147,   150   (Alaska   2008)   ("[W]e   have   not 

suggested that the best interests analysis cannot take into account how a move would 
exacerbate problems such as a parent's willingness to foster communication between the 
child and the other parent."); Fardig v. Fardig, 56 P.3d 9, 13 n.12 (Alaska 2002) ("[T]he 
impact of any potential move may be taken into consideration by the court in assessing 
the best interests of the child."); and Moeller-Prokosch I, 27 P.3d at 316 ("The best 
interests analysis necessarily will include assessing the impact of the parent's move on 
the child."). 

        21      In Moeller-Prokosch I, we explained that "[n]o Alaska law allows a court 

to require a custodial parent to forego relocation if custody with that parent remains in 
the child's best interests and relocation is not for an illegitimate reason."  27 P.3d at 317. 
In the next case, we added: 

                 [T]he court should not hold the move against the party who 
                proposes   to   move.   The   court   should   not   find   her   to   be, 
                because of the move, "selfish and unwilling to promote an 
                open and loving relationship between" the child and the other 
                parent. Legitimately motivated moves are a common feature 
                of "today's mobile society." Such moves would be unfairly 
                deterred if courts were to hold that the moving parent has 
                demonstrated by her desire to move a parental deficiency or 

Moeller-Prokosch v. Prokosch, 53 P.3d 152, 155 (Alaska 2002) [hereinafter Moeller- 
Prokosch   II].    In Moeller-Prokosch   III,   we   made   clear   that   this   analysis   "requires 
symmetric consideration of the consequences to [the son] both if [his mother] leaves with 
him and if she leaves without him." 99 P.3d at 536. 

                                                  -11-                                             6587

----------------------- Page 12-----------------------

that parent is not required to defend the move a second time by showing that life with 
that parent is superior to life with both parents in the same city.22  As Michael's argument 

recognizes, we take seriously the alleged infringement on a custodial parent's right to 

relocate.   However, Michael's position in the present case would require us to treat the 

superior court's decision with considerable and unwarranted skepticism.  Based on our 

review of the record in this case, we are satisfied that the superior court did not hold a 

legitimate move against Michael.  We address Michael's arguments below. 

       A.	     The   Superior   Court   Did   Not  Commit   Legal   Error   By   Improperly 
               Conditioning Michael's Custody Award On Staying In Alaska. 

               Michael argues that the superior court applied an improper standard by 

failing to assume that the move to New Jersey would take place.  According to Michael, 

"the trial court compared the life Dante had with both parents in one community to the 

life he would have if Michael relocated." This kind of analysis places the moving parent 

at a prohibited disadvantage; it requires the moving parent to compensate for the benefits 

of more regular contact with both parents.  Had the superior court in this case required 

Michael to bear the undue burden that he suggests, its order would not stand.  However, 

having scrutinized the record before us in its entirety, we cannot conclude, as Michael 

suggests, that the superior court "misunderstood" the proper legal standard. 

                When it undertakes a best interests analysis, the superior court is required 
to assume that a parent's legitimate proposed move will take place.23  We have directed 

trial courts to undertake "symmetric consideration" of  the child's experience living with 

       22      Moeller-Prokosch II, 53 P.3d at 156 (directing the superior court to "take 

the move as a given and determine whether it would be in the best interests of [the son] 
to be in the custody of his father in Alaska or of his mother in Florida"). 

       23	     See id. at 156. 

                                              -12-	                                          6587 

----------------------- Page 13-----------------------

each parent, assuming the proposed relocation will take place.24  In this case, the superior 

court acknowledged that it was bound by these rules; it identified the proper analysis and 

cited the governing case law extensively. 

                The superior court compared Dante's life with Michael in New Jersey (and 

Joanna in Fairbanks), to Dante's life with Joanna in Fairbanks (and Michael in New 

Jersey).   In particular, the superior court determined that if Dante moved to New Jersey 

with Michael, "[t]here will be few . . . positive interactions with his mother and sisters." 

In   contrast,   the   court   identified   "Joanna's   patience   and   respect   for   her   daughters' 

relationships with their fathers" and concluded that Joanna would do a "better job" than 

Michael   of   facilitating   Dante's   contact  with   his   non-custodial   parent.      Contrary   to 

Michael's assertion, the superior court did not "disregard[] the fact that Michael will be 

moving from Fairbanks."  Nor did the superior court disregard Michael's important role 

in Dante's life.    Rather, the court concluded that while maintaining contact with each 

parent would serve Dante's needs, non-parental relationships tipped the balance in favor 

of awarding Joanna primary custody. While the superior court's analysis does not detail 

every aspect of Dante's future in Alaska and in New Jersey, the court gives sufficiently 

detailed and "symmetric consideration" to Dante's experience if Michael took him to 

New Jersey or relocated to New Jersey without him. 

                Michael   also   appears   to   argue   that   even   if   the   superior   court   formally 

applied the proper rules, its analysis was "improperly colored by the court's wish to 

prevent the move."  He points to the court's "confrontational tone" during the hearing in 

asserting that the court directed a "degree of hostility toward Michael based on his 

        24      Moeller-Prokosch III, 99 P.3d at 535-36.             See also Silvan v. Alcina, 105 

P.3d 117, 121-22 (Alaska 2005) ("Unlike Moeller-Prokosch III, there is no evidence to 
indicate that the superior court did not individually address and consider both parents' 
situations." ). 

                                                   -13-                                               6587 

----------------------- Page 14-----------------------

decision to leave Fairbanks." We have previously examined a custody-hearing transcript 

- to determine if the court's analysis was colored by a desire to prevent a move - and 

concluded       that  the   superior    court's   "line   of  questioning      .  .  .  suggests   possible 

preoccupation with the irrelevant question whether [a parent] should be permitted to 
relocate, rather than the impact of [the] assumed move."25               We similarly scrutinized the 

record before us in this case.  We conclude that Michael's position is not supported by 

the   record   and   would   require   us   to   apply   undue   skepticism   to   the   superior   court's 

                 Like Michael, we are concerned by the superior court's suggestion at a pre- 

trial conference that Dante's best interests would be maximized if Michael remained in 

Fairbanks.      However, these suspect comments do not outweigh the evidence that the 

superior court took time to carefully consider the governing rules before deciding the 

case.   Despite its apparent suspicions about Michael's move at the beginning of the trial, 

the superior court was convinced by the close of the trial that Michael's decision to 

relocate   was   legitimate;   the   court   issued   an   oral   finding   to   that   effect   after   closing 

arguments.      Although the court acknowledged its persistent concerns about separating 

Dante from his sisters, it affirmed that it would "take no inference from the move against 

Mr. Rego."   At the conclusion of the trial, the court made clear that it would deliberate 

and review the applicable cases.           The court's written decision in this case confirms the 

care with which the court approached the issues before it. 

                 Michael points out that at trial, the superior court questioned him about his 

decision to move and was particularly interested in the detrimental effect of relocation 

        25       Moeller-Prokosch III, 99 P.3d at 536 n.18. 

        26       See, e.g.,McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986) ("We 

will   not   substitute   our   judgment  or   hypothesize   on   what   unstated   factors   may   have 
influenced the trial court."). 

                                                   -14-                                                 6587 

----------------------- Page 15-----------------------

on Dante's relationship with his siblings.               Michael suggests that the superior court's 

questioning   indicates   unwarranted   concerns   about   his   decision   to   relocate,   but   this 

questioning bore on relevant issues around which there may have been uncertainty before 

the   trial.   Although   the   court   is   prohibited   from   holding   a   legitimate   move   against 

Michael, the court is required to determine whether the move was, in fact, for a legitimate 

purpose.       The   pre-trial   briefing   was   evasive   about   the   circumstances   under   which 

Michael   lost   his   job,   stating   only   that   his   "employment   ended."       Considering   that 

Michael notified Joanna of his intent to leave Fairbanks less than a month after they 

formalized the custody agreement, it is unsurprising that at its earliest opportunity, the 

court sought clarification about Michael's decision to relocate. Questioning the custody 

investigator about how the move would affect Dante's relationship with his sisters is also 

relevant   under   our   law;   this   line   of   inquiry  fits   squarely   within the   "best   interests" 

analysis.      Michael's claim that the trial court "expressed the view that both parents 

should reside in the same community" exaggerates the trial court's expressed concerns 

about the effects of the move on Dante.  After reviewing the record in this case, we are 

not convinced that the court's ultimate conclusions were "improperly colored" by a view 

that both Dante's parents should remain in Fairbanks. 

                 Michael next argues that the superior court's "decision is crafted to prevent 

[him] from relocating away from Fairbanks."                  Michael correctly points out that if he 

remains in Fairbanks, Dante will continue to live primarily with his father, but if Michael 

leaves Fairbanks, Joanna will get custody.   We have made clear that "the trial court does 
not have the authority to place restrictions on a parent's ability to relocate."28  However, 

        27       See, e.g., Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) ("[T]he court must 

. . . assess[] whether there are legitimate reasons for the move."). 

        28       Moeller-Prokosch I, 27 P.3d 314, 317 (Alaska 2001). 

                                                    -15-                                                  6587 

----------------------- Page 16-----------------------

the superior court is authorized to order "alternative custody arrangements dependent on 
whether the move occur[s]."29   We have recognized: 

                Often   the   definiteness   of   a   parent's   move   is   uncertain   or 
                unclear,     especially   where    the  move     may   depend     on  the 
                court's custody determination itself.         A court may be faced 
                with a situation where, before an initial custody determination 
                has been made, a parent seeking custody will condition his or 
                her move plans on obtaining custody.            Or the court may be 
                confronted with a custodial parent who would choose not to 
                move if he or she cannot maintain custody.[30] 

Michael testified convincingly that he intends to move to New Jersey and the court 

appears to have credited this testimony.  Nevertheless, there is a possibility that Michael 

will decide to stay in Fairbanks and an attendant possibility that Michael's decision will 

be   influenced   by   the   court's   custody   orders.   The   chance   that   the   superior   court's 

decision will influence Michael's decision to move does not justify reversing the superior 

court's order. 

                Michael argues that "[t]he effect of the trial court's decision would be to 

require every parent to remain in the community where that parent's child was born, or 

relinquish primary custody." Michael's argument exaggerates the effect of affirming the 

superior court. Michael is right that in some cases where a parent undertakes a legitimate 

move, the child's best interests are met by keeping the child in the custody of the moving 

        29      Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005) (citingMoeller-Prokosch 

I, 27 P.3d at 317 n. 8);see also Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157 (Alaska 
2008) (affirming a one-year custody order because "we decline to undo the current 
arrangement and interrupt a perhaps more gradual process") (citing Chesser-Witmer v. 
Chesser, 117 P.3d 711, 720 (Alaska 2005)). 

        30      Moeller-Prokosch I, 27 P.3d at 316. 

                                                  -16-                                             6587

----------------------- Page 17-----------------------

parent.31  However, the law does not guarantee that a relocating parent can maintain (or 

obtain) primary custody.32       A parent's decision to relocate - including a legitimate 

decision to relocate - changes the best interests calculus.33             We have "consistently 

avoided mandating rigid rules for making custody determinations."34                 Instead, "such 

determinations are based upon the facts and circumstances of each particular case."35              In 

the present case, important evidence is contested.            The superior court analyzed this 

evidence with due consideration for the statutory best interest factors and governing 

standards.   The fact that the court's ultimate order is not favorable to Michael and may 

        31      See,   e.g., Veselsky   v.   Veselsky,   113   P.3d   629,   632-36   (Alaska   2005) 

(affirming custody award to relocating mother);Moeller-Prokosch III, 99 P.3d 531, 535 
(Alaska   2004)   ("[O]ur   decisions   recognize that   courts   may   properly   award   primary 
custody to the relocating parent when that parent offers superior emotional stability."); 
Vachon v. Pugliese, 931 P.2d 371, 380 (Alaska 1996) (concluding that custody belonged 
with "primary caregiver" who relocated to Massachusetts); House v. House, 779 P.2d 
1204, 1207-08 (Alaska 1989) (affirming custody award to relocating father). 

        32      Blanton v. Yourkowski, 180 P.3d 948, 953-55 (Alaska 2008) (affirming 

grant of custody to father where mother planned possible move to Texas); Silvan, 105 
P.3d at 120-23 (Alaska 2005) (affirming grant of custody to parent who remained in 

        33      Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) ("The court is to assess the 

best interests in light of all of the relevant factors, including the impact of the move on 
the child."). 

        34     McQuade v. McQuade, 901 P.2d 421, 425 (Alaska 1995) ("[I]n custody 

matters, 'there is no hard and fast rule[.]' ") (quoting Nichols v. Nichols, 516 P.2d 732, 
736 (Alaska 1973)). 

        35     Id.; see also Chesser v. Chesser-Witmer, 178 P.3d 1154, 1157 (Alaska 

2008) (recognizing that superior court has "discretion to fashion custody awards designed 
to meet the unique needs of the individuals involved") (quoting Deininger v. Deininger, 
835 P.2d 449, 451 (Alaska 1992) (internal quotation marks omitted)). 

                                                -17-                                            6587

----------------------- Page 18-----------------------

complicate his decision to move does not disrupt this conclusion. The superior court did 

not improperly condition an award of custody to Michael upon him staying in Alaska. 

        B.	     The Superior Court Did Not Abuse Its Discretion In Determining That 
                Placing Dante With Joanna Would Be In Dante's Best Interests. 

                Michael argues that the trial court incorrectly analyzed the best interests 

criteria in awarding Joanna custody of Dante. He further argues that the trial court made 

clearly erroneous factual findings in the course of its best interests analysis.  We address 

the challenged factual errors as they arise in our discussion of the statutory best interests 


                1.	     The superior court did not place undue emphasis on protecting 
                        the relationship between Dante and his half-sisters. 

                Michael argues that the court "placed undue emphasis on protecting the 

relationship between Dante and his elder half-sisters and ignored Dante's other needs, 

in particular his need to maintain the relationship with his primary parent and his need 

for continuing stability."      We have recognized that while it is often desirable not to 

separate siblings in the course of custody disputes, there is no rigid standard for weighing 
the importance of maintaining sibling bonds against other factors.36  In this case, the court 

heard   testimony   about   Dante's   close   relationship   with   his   half-sisters   from   Joanna, 

Michael, and other witnesses, including the custody investigator who stated, "[i]t is 

absolutely a horrible thing that he won't - that he's not around his siblings as much." 

This evidence supports the superior court's findings that Dante has a particular social 

need to maintain his sibling relationships and that "in Joanna's care, Dante can continue 

his relationship with his sisters and be spared a significant negative impact that would 

necessarily result from the move." 

        36        McQuade,       901   P.2d   at  425-26    (concluding     superior    court   did  not 

impermissibly favor sibling bonds over parental bonds). 

                                                  -18-	                                             6587 

----------------------- Page 19-----------------------

                 Michael   challenges   the   court's   reasoning   by   suggesting   that   Dante's 

relationships with his sisters could be maintained even if Dante were in New Jersey. 

Michael criticizes the superior court's reliance on the custody investigator's conclusion 
that "severing these relationships would not be in Dante's best interests"37 and draws 

attention to evidence that suggests Michael would help foster Dante's relationships with 

his   sisters.    Michael   points   out   that   the   record   could   have   supported   a   different 

conclusion about Dante's needs and his parents' ability to meet those needs.  However, 

that possibility does not compel reversal.           The record supports the court's conclusion. 

                 Michael contends that it was inappropriate to place so much weight on 

Dante's relationships with his sisters in part because these sisters may not stay in the 

same household, or even in Fairbanks, as Dante grows up.  The court's assessment in a 
child custody case is necessarily somewhat prospective;38 the trial court considers which 

living arrangement is likely to be in the child's best interests in the future.                While the 

court cannot be certain about how Dante's relationships with his half-sisters and other 

        37       Michael correctly points out that the superior court may have improperly 

attributed   the   word   "sever"   to   the   custody   investigator   when   it   stated,   "[t]he   child 
custody   investigator   testified   that   moving   from  Fairbanks   and   severing   these   bonds 
[between Dante and his sisters] would be 'horrible' for Dante." Michael does not appear 
to challenge this as a clearly erroneous factual finding.  In any case, this mis-attribution 
is, at most, harmless error.  The custody investigator testified that being separated from 
his sisters would be "horrible" for Dante.  The overall thrust of the court's sentence - 
that moving away from his sisters and not maintaining very regular contact with them 
would be horrible for Dante - does not misrepresent the evidence in the record. 

        38       See,   e.g.,  Meier   v.   Cloud,   34   P.3d   1274,   1279   (Alaska   2001)   ("The 

[custody] statute's plain language requires the court to view continuity and stability both 
prospectively and retrospectively: the court must examine both the time that a child 'has 
lived' in a stable environment and 'the desirability of maintaining [that] continuity.' " 
(quoting AS 25.24.150(c)). 

                                                   -19-                                              6587

----------------------- Page 20-----------------------

family members will develop, that is not enough to disturb the trial court's conclusion 

that granting Joanna custody will best serve Dante's social needs. 

              Michael     criticizes  the  superior  court's  invocation   of Melendrez     v. 
Melendrez,39 Rhodes v. Rhodes,40 and Nichols v.   Nichols41     "to support the premise that 

siblings should not be separated."   Michael misconstrues the superior court's treatment 

of these cases.  The trial court did not apply this "premise" as an absolute rule; rather, it 

acknowledged that courts have considered sibling bonds among other considerations. 

              Nevertheless, Michael distinguishes his case from Melendrez,Rhodes, and 
Nichols because those cases involved full siblings rather than half-siblings.42   Joanna 

rejects the relevance of this distinction.   We agree with Joanna:      As noted above, the 

inquiry into the importance of sibling bonds depends on the particular circumstances of 

each case.   While there may be a higher likelihood that Dante's half-siblings could end 

up living in a different household from Dante and Joanna, the difference between full- 

and half-siblings is not determinative.    The superior court assessed Dante's needs and 

best interests and, in light of the record, we defer to that determination unless it falls 

outside the range of what is reasonable. 

       39      143 P.3d 957 (Alaska 2006) (affirming superior court decision to place four 

children in custody of father where mother sought custody of two children). 

       40      370 P.2d 902, 903 (Alaska 1962) (noting "the desirability of keeping the 

children of the family together so that they may enjoy the normal condition of childhood 
of growing up together as brothers and sisters"). 

       41      516 P.2d 732, 736 (Alaska 1990) ("The question of whether or not it is 

necessary to separate children must depend upon the facts and circumstances of each 
particular case."). 

       42     Melendrez, 143 P.3d at 958;Nichols, 516 P.2d at 732-34;Rhodes, 370 P.3d 

at 903. 

                                             -20-                                       6587

----------------------- Page 21-----------------------

                 Michael also distinguishes his case fromMelendrez because in that case the 

children had always lived together in the same household, whereas here Dante spent a 

significant amount of time in his father's household without his sisters.  Again, whether 

the siblings in Melendrez spent more or less time together than Dante and his siblings is 

not the relevant inquiry.         What matters is whether the superior court's findings and 

conclusions are supported by the particular facts of this case. As noted above, they are. 

                 Finally, Michael challenges the finding that "[f]or his entire life Dante has 

lived with his three half-sisters."  He argues that this is clearly erroneous because Dante 

had   lived   primarily   with   his   father   and   apart   from   his   sisters   for   more   than   a   year 

immediately preceding the hearing on Michael's motion for modification.                       The parties 

do not contest that since the divorce, Dante has spent five nights per week at his father's 

home.  However, as Joanna points out, the evidence also supports finding that Dante has 

lived in the same community with his half-sisters and had regular contact with them, 

including living in the same household for at least two days each week almost every 

week of his life.     In fact, the sentences immediately following the challenged sentence 

in the superior court's decision are: 

                 There     are  strong    bond[s]    of  love   and   affection    existing 
                 between   Dante   and   his   sisters.    He   had   an   intimate,   daily 
                 relationship   with   his   sisters   during   the   marriage.    He   has 
                 continued   in   that   close   relationship   with   his   sisters   since 
                 separation and lives with them when he is in his mother's 

From this, it is clear that the trial court understood that Michael and Joanna's separation 

reduced the amount of time Dante spent in the same household as his half-sisters. While 

the court could have been more precise in describing Dante's lifelong relationship with 

his sisters, we do not accept Michael's narrow reading of the phrase "lived with his three 

half-sisters."  In turn, we conclude that this finding was not clearly erroneous. 

                                                    -21-                                              6587

----------------------- Page 22-----------------------

                 We conclude that there is extensive testimony in the record about Dante's 

close relationship with his half-sisters, and that therefore the superior court did not err 

in finding that maintaining contact with his sisters is an important social need that Joanna 

is best able to meet. 

                 2.	     The superior court did not ignore Dante's need to maintain his 
                         relationship with Michael. 

                 Michael   argues   that   the   superior  court   failed   to   give   proper   weight   to 

Dante's   relationship   with   his   father.    Alaska   Statute   25.24.150(c)   directs   courts   to 
consider "the love and affection existing between the child and each parent"43 and "the 

capability and desire of each parent to meet [the child's] needs."44   We have held that 

                 in determining the best interests of a child, the court need not 
                 discuss each statutory factor in detail; the court's findings 
                 will be sufficient if they "give us a clear indication of the 
                 factors which [the court] considered important in exercising 
                 its   discretion   or   allow   us   to   glean   from   the   record   what 
                 considerations were involved."[45] 

In the present case, the superior court found that Dante has primary bonds of love and 

affection with his father and that Michael is able to meet Dante's needs.                    As Michael 

points out, the superior court did not elaborate further on Dante's bond with Michael or 

the stability Dante experiences in Michael's home.  Nevertheless, the court followed the 

statutory mandate in considering Dante's relationship with Michael.                     The absence of 

further elaboration about Dante and Michael's relationship is not error, because the 

superior court's decision clearly indicatesthe factors it considered important in awarding 

        43       AS 25.24.150(c)(4). 

        44       AS 25.24.150(c)(2). 

        45      Ebertz   v.   Ebertz,   113   P.3d   643,   648   (Alaska   2005)   (quoting  Smith   v. 

Weekley, 73 P.2d 1219, 1225 (Alaska 2003)). 

                                                   -22-	                                             6587

----------------------- Page 23-----------------------

primary     custody     to  Joanna,    namely     her  willingness     and   ability   to  foster   Dante's 

relationship with his father, siblings, and extended family. 

                 In the same vein, Michael also argues that the trial court improperly ignored 

Dante's relationships with Michael's extended family and friends in New Jersey. But the 

superior     court   did   make    reference    to  Michael's      New    Jersey    family   in  its  order. 

Moreover, neither AS 25.24.150 nor AS 25.20.110 mandates consideration of the child's 

extended   family   as   part   of   the   best   interests   analysis   in   a   custody   modification. 

                 As noted above, we have directed trial courts to undertake "symmetric 

consideration" of the child's experience living with each parent. Michael does not argue 

specifically that the greater attention to family connections in Fairbanks is a prohibited 

"asymmteric" analysis.         In any case, the superior court's greater attention to Dante's 

family connections in Fairbanks is supported by the record; there was considerably less 

evidence presented about Dante's relationships with family in New Jersey. The superior 

court did not abuse its discretion by failing to discuss Dante's connections to his New 

Jersey family in greater detail. 

                 3.	     The   superior   court   did   not   err   in   evaluating   the   stability   of 
                         Dante's environment. 

                 Michael argues that the superior court "disregarded the stability Dante has 

enjoyed   while   in   the   primary   care   of  his   father."  The   superior   court   is   required   to 

consider "the length of time the child has lived in a stable, satisfactory environment and 

the   desirability   of   maintaining   continuity"   under  AS   25.24.150(c)(5).           The   court   is 

authorized to evaluate "the children's needs, not just in relation to each parent, but in 

relation   to   the   totality   of   the   circumstances   they   were   likely   to   encounter   in   their 
respective parents' homes."46          In the present case, the superior court found that both 

        46       McQuade, 901 P.2d at 426 (Alaska 1995) (quoting Evans v. Evans, 869 


                                                    -23-	                                               6587 

----------------------- Page 24-----------------------

Michael and Joanna do an acceptable job maintaining a stable, satisfactory environment 

for Dante before it concluded that "[i]t is desirable to maintain custody in either parent's 

household." In light of Dante's extended network of family and friends in Fairbanks, the 

court   later   made   the   custody   determination   in   Joanna's   favor.      The   superior   court 

considered circumstances that Dante was likely to encounter in each environment, such 

as   contact   with   extended   family,   and   showed   due   consideration   for   the   statutory 

"stability" factor. 

                Michael highlights that stability was "a factor that the custody investigator 

found significantly favored Dante remaining in Michael's primary custody."  We have 

made clear that "a court may reject a custody investigator's recommendations" and carry 
out   a   sound   analysis   that   relies   on   other  evidence.47  In   the   present   case,   custody 

investigator Sponsel testified: 

                 [T]he best thing a parent can give any child is stability as a 
                foundation for personality growth.  That is that you have one 
                set of rules, you have one way of doing things and that's the 
                foundation upon which everything else is built in life. 

He later noted that Michael's lifestyle was more structured than Joanna's.                       Sponsel 

clarified, "certainly, Ms. Rego's home does have rules and general schedules but it is 

much, much more lax or much, much more casual."  The court also heard testimony that 

both parents lacked stability in their romantic relationships with others following their 

divorce. Faced with inconclusive and conflicting evidence, the superior court ultimately 

granted custody to Joanna. The court was not required to credit Sponsel's testimony, and 

        46      (...continued) 

P.2d 478, 482 (Alaska 1994) (internal quotation marks omitted)). 

        47      Ebertz   v.   Ebertz,   113   P.3d   643,   647   (Alaska   2005)   (affirming   custody 

determination where superior court made reasonable decision based on all the evidence) 
(citing Rooney v. Rooney, 914 P.2d 212, 219 (Alaska 1996)). 

                                                   -24-                                             6587

----------------------- Page 25-----------------------

even if it did credit the testimony, the court was entitled to weigh the stability Michael 

provides against other factors. The superior court resolved the ambiguities in the record, 

and its analysis of Dante's stability was not an abuse of discretion. 

                Michael also argues that the court "over-emphasized geographical stability 

and disregarded the stability Dante had experienced living with his father."                  Michael 

correctly points out that we have recognizedtwo components of stability: geographic and 
relational.48    However,   Michael   is   incorrect   in    suggesting   that   the   superior   court 

disregarded relational stability.   The court considered the "extended network of family 

and friends in Fairbanks" an important factor in Dante's stability; a review of the court's 

opinion   suggests   that   the   court   was   more   focused   on   Dante's   relationships   in   the 

Fairbanks community than the geographic location itself.  We perceive no abuse of 

discretion in this regard. 

                4.	     The     superior    court    did  not   err   in  its  analysis   of  domestic 
                        violence, abuse, neglect, and substance abuse. 

                Michael argues that the court failed to apply the correct legal standard 

because it did not address evidence of Joanna's multiple "unsuitable" past relationships, 

use of alcohol, or indicators of potential child abuse and neglect.  Paragraphs (7) and (8) 

of AS 25.24.150(c) direct the court to consider evidence of domestic violence, abuse, 

neglect, and substance abuse.         However, AS 25.24.150(d) limits "the scope of judicial 

inquiry [in a best interests determination during a change of custody proceeding] . . . to 

        48      Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001) ("Because the child will 

no longer be able to spend equal time with each parent in . . . situations [where a parent 
relocates to another state], a court considering the child's need for continuity and stability 
in   this   context   must   examine   not   only   the   desirability   of   maintaining   geographical 
continuity, but also the importance of maximizing relational stability.") (citing West v. 
Lawson, 951 P.2d 1200, 1203-04 (Alaska 1998)). 

                                                  -25-	                                           6587

----------------------- Page 26-----------------------

facts directly affecting the child's well-being."49  We have explained that "instability in 

relationships [does not] warrant a custody change where the parent's conduct does not 
adversely affect the child or the . . . parenting abilities."50        After considering five of the 

statutory best interest factors, the superior court concluded:  "The other statutory factors 

do not have significant bearing on this case.             There is no domestic violence, abuse, 

neglect, or substance abuse that has been shown to affect Dante." 

                Michael draws our attention to evidence that the superior court did not 

address   in   detail.   The   fact   that   the  court   did   not   identify   each   piece   of   evidence 

separately nor consider each in detail is not error because there are other indications that 

the court considered the evidence that could bear on domestic violence, neglect, and 

substance   abuse,   as   required   under   the   statute.     The   court   specifically   mentioned 

"Joanna's history of relationships" and the importance of this information to the custody 

investigator, but the court declined to attribute to this evidence the same significance. 

Also, despite the custody investigator's concern about Joanna's past relationships, the 

investigator recommended granting Joanna physical custody of Dante three nights per 

week and during the summers.  The trial court considered the conflicting evidence and 

purposefully discredited the allegations that there was abuse, neglect, and violence that 

affected Dante.  This is supported by the record, and there is no abuse of discretion. 

                Michael argues that the court "misunderstood the concerns raised" about 

Joanna's past relationships when, at the end of the trial, the court focused its questioning 

        49       West, 951 P.2d at 1203 (remanding for trial court to consider effect of 

alternating six-month custody schedule on child) (quotingS.N.E. v. R.L.B., 699 P.2d 875, 
878 (Alaska 1985) (internal quotation marks omitted)). 

        50      S.N.E., 699 P.2d at 878 (citing Craig v. McBride, 639 P.2d 303, 306 (Alaska 

1982)); see also McDanold v. McDanold, 718 P.2d 467, 470 (Alaska 1986) (affirming 
grant    of  custody    to  father   in  case  where    court   heard    evidence    of  mother's    past 
relationships and did not consider improper or impermissible factors). 

                                                  -26-                                             6587

----------------------- Page 27-----------------------

"on the brief period since Michael and Joanna separated."                  The superior court may 

consider   a   parent's   past   in   evaluating   current   stability   and   parenting   ability,   but   "a 
parent's past is not determinative."51      The superior court's greater attention to the period 

after Dante was born does not necessarily mean that the court failed to consider Joanna's 

earlier relationships.     While Michael argues that Joanna's past relationships indicate a 

risk that presently affects Dante and is likely to subject him to abuse in the future, the 

superior court was not bound to accept this argument, and the court's rejection of this 

argument was not clearly erroneous. 

                5.	     The   superior   court   did   not   err in   finding   that   Joanna   has   a 
                        greater willingness and ability to facilitate Dante's relationship 
                        with Michael than Michael has to facilitate Dante's relationship 
                        with Joanna. 

                According to Michael, the superior court's finding that "Joanna has the 

greater willingness and ability to facilitate a close and continuing relationship between 

Dante and his other parent" is clearly erroneous.               Michael notes that there were no 

allegations at trial that Michael was late for, or obstructed, visits.  Michael also pointed 

to testimony from others who observed him encouraging Dante to speak with Joanna on 

the phone and his own testimony about how he would like to prepare Dante for calls with 

his mother on a more fine-tuned schedule.            There was, indeed, as Michael points out, 

testimony showing "the importance Michael placed on fostering Dante's relationship 

with his mother."      But the court was also exposed to conflicting evidence, including 

evidence that Michael made inappropriate comments about Joanna in front of Dante. 

Further, the court was exposed to evidence about Joanna's willingness to foster Dante's 

relationship with Michael and evidence that she has played an active role in maintaining 

        51      McDanold, 718 P.2d at 470. 

                                                  -27-                                              6587 

----------------------- Page 28-----------------------

family   ties.   In   light   of this   evidence,   the   finding   that   Joanna   was   more   willing   to 

facilitate contact with the other parent is not clearly erroneous. 

                Michael's briefing on appeal contrasts his attitude with "Joanna's decision 

to terminate personal contact between Dante and Michael after she was awarded primary 

custody."      In   making   this   assertion,   Michael   refers   to   extremely   limited   post-trial 

evidence that is part of the record before us.            There was no sworn testimony at the 

hearing that took place on December 28, 2009; as a result, the superior court did not issue 

new factual findings on the basis of the post-trial hearing.            Like the superior court, we 

are unwilling to rely on the post-trial hearing to change our conclusion that the evidence 

at   trial   justified   the   superior   court's   determination   that   Joanna  is   more   willing   than 

Michael to facilitate Dante's contact with the other parent. 


                We AFFIRM the custody-modification order because the superior court 

applied the correct legal standard in assuming Michael's move to New Jersey would take 

place and did not abuse its discretion in weighing the best interest factors. 

                                                  -28-                                             6587
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