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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nelson v. Nelson (10/28/2011) sp-6615

Nelson v. Nelson (10/28/2011) sp-6615, 263 P3d 49

        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 
        corrections@appellate.courts.state.ak.us. 

                 THE SUPREME COURT OF THE STATE OF ALASKA 

JUSTIN L. NELSON,                               ) 
                                                )       Supreme Court No. S-13928 
                        Appellant,              ) 
                                                )       Superior Court No. 4FA-07-02361 CI 
        v.                                      ) 
                                                )       O P I N I O N 
ERICA R. NELSON,                                ) 
                                                )      No. 6615 - October 28, 2011 
                        Appellee.               ) 
                                                ) 

                Appeal   from     the  Superior    Court   of   the  State  of   Alaska,
 
                Fourth Judicial District, Fairbanks, Randy M. Olsen, Judge.
 

                Appearances:       Bonnie   J.   Coghlan,   Law   Office   of   Rita   T.
 
                Allee, P.C., Fairbanks, for Appellant.        Shannon T. Morgan,
 
                Gazewood & Weiner, Attorneys at Law, P.C., Fairbanks, for
 
                Appellee.
 

                Before:    Carpeneti, Chief Justice, Fabe, Winfree, Christen,
 
                and Stowers, Justices.      
 

                CARPENETI, Chief Justice.
 
                STOWERS, Justice, with whom WINFREE, Justice, joins, dissenting in
 
                part.
 

I.      INTRODUCTION 

                An Alaskan military couple divorced in 2008.  Their agreement for custody 

of their two children was incorporated into the divorce decree.   The following year, the 

father, who anticipated relocating with the military, sought modification of the custody 

arrangement.  In its order denying modification, the superior court tried to give effect to 

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

the parties' custody agreement but did not independently analyze the best interests of the 

children. Because a substantial change in circumstances occurred, and because a custody 

decision must be based on an independent best-interests analysis, we remand this case 

for the superior court to undertake a full best-interests inquiry.   We also remand for the 

superior court to resolve a dispute concerning payment of a custody investigator. 

II.     FACTS AND PROCEEDINGS 

                Justin Nelson and Erica Nelson  married in 2000 while both were stationed 

in England with the U.S. Air Force.   Together they had two children, a daughter born in 

2001 and a son born in 2005.          In 2006, they moved to Eielson Air Force Base near 

Fairbanks.    The couple separated in 2007 and divorced in 2008. 

                At a settlement conference in January 2008, Justin and Erica - neither of 

whom was represented by counsel at the time - established a Parenting Agreement. 

The superior court adopted the terms of the Parenting Agreement in the findings and 

conclusions that accompanied their divorce decree.            The superior court noted that the 

parties had worked "amicably" to resolve some disputes that arose from the divorce. 

                The Parenting Agreement provided for shared legal custody and equally 

divided physical custody on alternate weeks "until one or both parents move from the 

Fairbanks area."     The agreement further provided: 

                If  in  the   future   the  parents   don't   reside   in  the   same 
                community, they agree one parent will have the children for 
                the school year and other parent will have the children for 
                summers and some school breaks . . . .  They agree they will 
                leave open the possibility if a child asks to live with the other 
                parent, to consider that request, but no changes of custody 
                between parents' homes will occur during a school year. 

And: 

                If a parent moves in the future, which the parents agree will 
                occur    eventually,    they  will   have   to  create   a  parenting 

                                                 -2-                                           6615
 

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

              agreement for different communities.       Until they have that 
              agreement the children cannot be moved from their current 
              community.      But   the  children  will  have  visits  with  the 
              moving parent during breaks from school . . . . 

The record suggests that the parents at first adhered substantially to the terms of their 

agreement     and  resolved   minor    disputes  without   court  intervention.    But   some 

disagreements required the court's intervention. 

              In June 2008 Erica lost her job as a surgical technician.    About six weeks 

later, Erica filed a motion for modification of custody.  She proposed moving with both 

children to Iowa before the academic year began on August 20, 2008; Erica sought 

primary custody with summer visitation for Justin.         The court denied this motion on 

February 9, 2009.    Erica did not appeal this order and apparently abandoned, at least 

temporarily, her plan to move to Iowa. 

              On February 6, 2009, Justin filed a motion for custody modification.  (This 

motion was not ripe for consideration as of February 9, 2009, when Erica's motion for 

modification was denied.)     Justin sought primary custody when the parents no longer 

resided in the same community.   He took Erica's proposed move to Iowa as a change of 

circumstances. Justin also suggested that, as a result of his military service, he was likely 

to relocate some time after May 2011.      Erica opposed the motion, requesting primary 

custody regardless of either parent's plans to move; she stated that the "alternate week 

schedule has left our children's lives in a constant state of upheaval and is all in all not 

working for them." 

              On Justin's motion, the superior court ordered appointment of Ted Sponsel 

as custody investigator.   The court reserved for trial the issue of allocating between the 

parties   the  costs  of  Sponsel's    services.  Following     his  investigation,   Sponsel 

recommended that when one parent moved from Fairbanks, Justin be given custody with 

                                             -3-                                        6615
 

----------------------- Page 4-----------------------

the caveat that if Justin were deployed for more than three months, custody would revert 

to Erica until Justin returned. 

                Following a two-day trial, the superior court denied Justin's motion for 

modification.    The order provided: 

                        The court does not find a change   of circumstances, 
                unanticipated by the parties when they signed their Parenting 
                Agreement in 2008.       They anticipated movement by one or 
                both parents, and agreed that the non-moving parent would 
                retain custody for the school year. 

Nevertheless, the court went on to order that if Justin "moves during the school year, 

then [the children] will reside primarily with Erica."          The court also ordered entry of a 

communication        plan   between    the  parties.   Neither    order   mentioned     payment     for 

Sponsel's investigation. 

                Justin appeals the order denying his motion for modification and argues that 

it was error not to address payment for the investigation. 

III.    STANDARD OF REVIEW 

                "We     exercise   our   independent     judgment     when    reviewing     the  legal 

interpretation    of   .   .   .   child  custody  agreements  that   are  incorporated  into  divorce 

decrees."1   Whether the superior court applied the correct legal standard in its custody 

determination 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."2 

        1       Brown v. Brown, 983 P.2d 1264, 1267 (Alaska 1999). 

        2       See McQuade v. McQuade, 901 P.2d 421, 423 n.3 (Alaska 1995) (quoting 

Cox v. Cox, 882 P.2d 909, 913 (Alaska 1994)). 

                                                 -4-                                              6615 

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

IV.    DISCUSSION 

               Justin argues that the superior court:   (1)   incorrectly interpreted the terms 

of the parties' Parenting Agreement, (2) failed to apply the correct legal standard, and 

(3) overlooked the issue of allocating costs for the custody investigation. Justin suggests 

that   the  superior  court   did  not  modify    custody   because   it  found  no   change   in 

circumstances to justify modification.       Erica characterizes the superior court's order 

differently.  She argues that the superior court properly awarded her custody after it 

concluded that a change of circumstances justified modification and that the children's 

best interests justified awarding primary custody to her.       We agree with Justin that the 

decision should be remanded to the superior court for a best-interests determination. 

       A.      There Has Been A Substantial Change Of Circumstances. 

               Alaska Statute 25.20.110 authorizes courts to modify child custody and 

visitation awards if (1) there has been a substantial change in circumstances that justifies 

modification and (2) the modified arrangement is in the best interests of the child.3       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."4      The change in circumstances 

"must be demonstrated relative to the facts and circumstances that existed at the time of 

the prior custody order that the party seeks to modify."5        As we have explained, "the 

change in circumstances requirement is intended to discourage continual relitigation of 

       3       Melendrez     v.  Melendrez,   143   P.3d   957,  960-61,   963   (Alaska   2006) 

(affirming custody modification where both prongs satisfied). 

       4       Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (quotingAcevedo v. Liberty, 

956 P.2d 455, 457 (Alaska 1998)) (internal quotation marks omitted). 

       5       Peterson v. Swarthout, 214 P.3d 332, 341 (Alaska 2009) (quoting Jenkins 

v. Handel, 10 P.3d 586, 589 (Alaska 2000)). 

                                               -5-                                         6615
 

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

custody   decisions,   a   policy   motivated   by   the   judicial   assumption   that   finality   and 

certainty in custody matters are critical to the child's emotional welfare."6 

                When      Justin   filed  his  motion    for  modification     in  February     2009,   he 

suggested     that, as a result of his military service, he was likely to relocate some time 

after May 2011.  Although Justin's relocation may have seemed far away when he filed 

the motion for the modification, his anticipated move grew nearer as the superior court 

proceedings   progressed.        By   the   time   the   case   went   to   trial,   in   May   2010,   Justin's 

relocation constituted a change of circumstances "relative to the facts and circumstances 

that existed" at the time the prior custody order was entered.               Though the change-of- 

circumstances rule is "designed to discourage discontented parents from continually 

renewing custody proceedings,"7 parents should not be discouraged from planning ahead 

and seeking to modify custody arrangements in advance of an anticipated move.  In 

numerous cases, we have concluded that an anticipated move satisfied the change-of- 

circumstances       requirement.8      Indeed,    to  do   otherwise     could   result  in  very   harsh 

consequences for children (for example, if the non-moving parent is actually unfit). 

        6       Id.  at   340-41   (quoting  Gratrix   v.   Gratrix,   652   P.2d   76,   82-83   (Alaska 

1982)). 

        7       Nichols v. Mandelin, 790 P.2d 1367, 1372 (Alaska 1990) (quoting King v. 

King, 477 P.2d 356, 360 (Alaska 1970)) (internal quotation marks omitted). 

        8       See, e.g.,Eniero v. Brekke, 192 P.3d 147, 149-50 (Alaska 2008) (affirming 

superior   court's   decision   to   modify   custody   in   light   of   mother's   proposed   move   to 
Oregon);     Moeller-Prokosch         v.  Prokosch,     53   P.3d   152,   153,   155    (Alaska    2002) 
(instructing courts in custody modification cases to assume a legitimately motivated 
move would take place when considering best interests of the child); House v. House, 
779   P.2d   1204,   1207-08   (Alaska   1989)   (concluding   that   father's   proposed   move   to 
California constituted substantial change of circumstances). 

                                                   -6-                                              6615
 

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

Justin's    anticipated    relocation,   like  Erica's   proposed     move    to  Iowa,   constituted    a 

substantial change of circumstances in this case. 

        B.	     The     Superior     Court     Must    Consider      The    Best   Interests    Of   The 
                Children Under AS 25.24.150(c). 

                Justin demonstrated that a substantial change in circumstances would occur 

when he moved out of state. Thus, he has met the threshold requirement for modification 
of custody.9    And the superior court must give full consideration to the best interests of 

the children before entering an order modifying custody.               Alaska Statute 25.20.110(g) 

and AS 25.24.150(c) identify nine factors that the superior court must consider in its 

best-interests inquiry.   The superior court has some leeway in determining what factors 
it "considers pertinent."10  Nevertheless, the statute requires the superior court to consider 

each of the enumerated factors unless the court   concludes, in light of the facts of a 
particular case, that certain factors have no bearing on the child's well-being.11                When 

we review a custody modification order, we must determine whether the superior court 

gave due consideration to each of the pertinent statutory factors.              Because the superior 

        9          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.     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). 

        10	     AS 25.24.150(c)(9). 

        11      See AS 25.24.150(d) ("In awarding custody the court may consider only 

those facts that directly affect the well-being of the child."); S.N.E. v. R.L.B., 699 P.2d 
875, 878 (Alaska 1985) ("When a court determines the best interests of the child under 
the   changed   circumstances   doctrine,   the   scope   of   judicial   inquiry   is   limited   to   facts 
directly affecting the child's well-being." (citing AS 25.24.150(d))); Craig v. McBride, 
639   P.2d   303,   306   (Alaska   1982)   (instructing   superior   court   to   consider   mother's 
relationship instability only to extent that it adversely affects child or otherwise affects 
mother's parenting abilities). 

                                                   -7-	                                            6615
 

----------------------- Page 8-----------------------

court in this case found no change of circumstances, it did not address certain statutory 

factors, such as the children's needs, each parent's ability to meet those needs, and the 

love and affection existing between the children and each parent.   Thus, we remand this 

case for the superior court to address the statutory best-interests factors, as it deems 

necessary, in light of the facts of this case. 

       C.	     The Parenting Agreement Does Not Dictate The Terms Of The Post- 
               Relocation Custody Arrangement. 

               In determining what custody arrangement is in the children's best interests, 

the superior court may properly take account of a custody agreement entered into by the 
parents.12 However, a custody agreement cannot be enforced in the face of changed 

circumstances, unless the court independently determines, at the time of enforcement, 
that its terms are consistent with the best interests of the child.13 

               The superior court must undertake a new   best-interests analysis   before 

modifying custody in this case.  As we understand the order on appeal, the superior court 

granted Erica custody "during the school year" in order to give effect to the terms of the 

Parenting Agreement.     Because this custody modification was not based on a full best- 

interests inquiry, we vacate the order granting Erica custody.  At most, the terms of the 

Parenting Agreement identify the agreed-upon status quo until a final court-approved 

arrangement takes effect. 

       12      See, e.g., McClain v. McClain, 716 P.2d 381, 385 (Alaska 1986) ("The 

custody agreement is a pertinent factor because it demonstrates that cooperation between 
the parents is possible."). 

       13      See id.; see also Crane v. Crane, 986 P.2d 881, 887 (Alaska 1999) ("In 

making any custody determination - whether following a contested trial or upon the 
parties' agreement - the superior court must base its decision on the best interests of the 
child."). 

                                              -8-	                                       6615
 

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

                In   our  view,14   Justin  and   Erica   did  not   agree  upon    a  final  custody 

arrangement in the event that one parent relocates.           Instead, the agreement states that a 

new agreement will need to be reached "[i]f a parent moves in the future."  The terms of 

the Parenting Agreement provide an interim custody arrangement - that the children 

remain with the non-moving parent in Fairbanks - until a final arrangement takes effect. 

It will be up to the superior court to determine the permanent custody arrangement that 

will be in the children's best interests.       If that interim arrangement is not in the best 

interests of the children, then the superior court will determine what arrangement is in 

the best interests of the children for the duration of the school year and until a substantial 

change in circumstances occurs. 

        D.	     The     Superior     Court    Must     Address     Payment      Of    The   Custody 
                Investigator. 

                Because we see no indication that the superior court resolved the issue of 

allocating the custody-investigation costs, it must decide this issue on remand. 

V.	     CONCLUSION 

                We VACATE the custody modification order and REMAND the case for 

the superior court to consider the best interests of the children and the allocation of 

custody investigation costs. 

        14      Interpretation of a custody agreement presents a question of law, which we 

review   de   novo.   See   Brown   v.   Brown,   983   P.2d   1264,   1267   (Alaska   1999)   (citing 
Cedergreen v. Cedergreen, 811 P.2d 784, 786 n.2 (Alaska 1991)). 

                                                 -9-	                                             6615 

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

STOWERS, Justice, with whom WINFREE, Justice, joins, dissenting in part. 

                Justin and Erica Nelson divorced in 2008 and entered into a Parenting 

Agreement governing their two children.            Their agreement, which was adopted by the 

superior court, provided for shared legal and physical custody while both parents lived 

near Fairbanks. The agreement also expressly anticipated a move from Fairbanks by one 

or both parents, and set forth custody arrangements for that eventuality. 

                In February 2009, Justin sought modification of custody on the grounds that 

he would soon relocate to the continental United States. A hearing was held, after which 

the superior court denied Justin's motion to modify custody.            The superior court found 

that the parties' Parenting Agreement contemplated the upcoming move, and interpreted 

the agreement to provide school-year custody to Erica, the non-moving parent.  The 

court    today   vacates   the  superior    court's  order   and   remands     for  a  best-interests 

assessment.    Because I would affirm the superior court's decision, I dissent in part.1 

        A.	     The   Parties   Agreed   Upon,   And   The   Superior   Court   Adopted, The 
                Parenting   Agreement   Dictating   The   Custody   Arrangement   In   The 
                Event That One Parent Relocates. 

                In its opinion, the court concludes that "[i]n our view, Justin and Erica did 

not agree upon a final custody arrangement in the event that one parent relocates." 

                In  my   view,   the   Nelsons   agreed   upon   precisely   this.   The   Parenting 

Agreement anticipated that a parent would move away from Fairbanks and detailed 

custody arrangements to take effect in that case.         Paragraph 11 of the Agreement states 

that "[i]f in the future the parents don't reside in the same community, they agree one 

parent will have the children for the school year  and the other   parent will have the 

        1        I   agree   with   the  court   that  the  issue   of  payment     of  the  custody 

investigator's fees must be remanded for consideration. 

                                                -10-	                                            6615 

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

children   for   summers   and   some   school   breaks   .   .   .   .   [Also,]   no   changes   of   custody 

between parents' homes will occur during a school year."2                  Paragraph 12 goes on to 

provide that: 

                If a parent moves in the future, which the parents  agree will 
                occur     eventually,    they   will   have   to  create   a   parenting 
                agreement for different communities.             Until they have that 
                agreement the children cannot be moved from their current 
                community. But the children will have visits with the moving 
                parent     during   breaks    from   school,    as  follows,   until   an 
                updated agreement is reached: 
                        a.       Summers, starting from a week after school is 
                                out until two weeks before school resumes; 
                        b.      Alternate winter breaks . . . . 
                        c.       Alternate spring breaks . . . . 

(Emphasis added.) 

                The Nelsons contemplated and, in the Parenting Agreement, specifically 

prepared for the eventuality that one of the parties would move from Fairbanks.  I would 

construe their Agreement as the superior court did, namely to provide that in the event 

of a move, Justin and Erica "agreed that the non-moving parent would retain custody for 

the school year."3 

        2       Paragraph   11   also   references   a   "#6."   Paragraph   6   concerns   travel   for 

church or school activities.        Justin asserts that "#6" in fact references a nonexistent 
section.   In either event, it does not modify the meaning of paragraph 11 as executed. 

        3       The court relies on the fact that the Parenting Agreement stipulates that a 

new agreement will need   to   be   reached if a parent moves from Fairbanks.                   But the 
language in paragraph 12 seems limited to logistical modifications, not to the underlying 
premise that custody would stay with the parent in Fairbanks.  But even if paragraph 12 
is not so limited, the fact that the parents agreed that they would at some point have to 
create a new parenting agreement in the future in no way invalidates their agreement that 
the nonmoving parent would retain principal custody of the children during the school 
                                                                                         (continued...) 

                                                  -11-                                             6615
 

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

        B.	     There Has Been No Change In Circumstances Warranting Custody 
                Modification. 

                The superior court found no change in circumstances because one parent's 

move from Fairbanks was not only anticipated but explicitly planned for in the custody 

             4 
agreement.      I would affirm the superior court's decision in this regard. 

                To modify a custody award, "[t]he parent seeking modification must first 

establish that there has been a 'significant change in circumstances affecting the child's 

best interests.' "5   We have held that as a matter of law, one parent's relocation out of 

Alaska constitutes a significant change in circumstances.6            This triggers a hearing on the 

children's best interests.7 

                But    we   also   have   stated   that  a  change     in  circumstances     "must    be 

demonstrated relative to the facts and circumstances that existed at the time of the prior 

        3       (...continued) 

year. 

        4       The superior court characterized the Agreement as providing that Justin and 

Erica "anticipated movement by one or both parents, and agreed that the non-moving 
parent would retain custody for the school year." 

        5       Williams v. Barbee, 243 P.3d 995, 1000 (Alaska 2010) (quoting Ebertz v. 

Ebertz, 113 P.3d 643, 647 (Alaska 2005));see also Peterson v. Swarthout, 214 P.3d 332, 
340 (Alaska 2009) (quoting J.L.P. v. V.L.A., 30 P.3d 590, 595 (Alaska 2001)) ("Under 
AS 25.20.110(a), a court may modify custody only if it finds 'a change in circumstances' 
that is 'significant or substantial.' "); House v. House, 779 P.2d 1204, 1207 (Alaska 
1989). 

        6       Barbee, 243 P.3d at 1000 (citing Chesser-Witmer v. Chesser, 117 P.3d 711, 

717 (Alaska 2005) (explaining that a change of circumstances "exists as a matter of law 
when a custodial parent [including a parent with joint custody] moves out of state")). 

        7       McQuade v. McQuade, 901 P.2d 421, 424 n.6 (Alaska 1995). 

                                                  -12-	                                           6615
 

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

custody order that the party seeks to modify."8          Here, both parties clearly contemplated 

and planned for one parent's move. 

                Moreover, courts should "avoid disturbing and upsetting [children] with 

repeated custody changes."9        "[T]he change in circumstances requirement is intended to 

discourage continual relitigation of custody decisions, a policy motivated by the judicial 

assumption   that   finality   and   certainty   in   custody   matters   are   critical   to   the   child's 

emotional welfare."10      In other words, a custody situation that has been settled - such 

as the custody arrangement accompanying an upcoming move - should not be revisited 

unless the situation has notably changed, and the parents' mere belief or agreement that 

relitigation is necessary is insufficient to trigger modification of an award.11 

                I would therefore affirm the superior court's conclusion that no change of 

circumstances exists sufficient to warrant modification of custody. 

        8       Peterson, 214 P.3d at 341 (quoting Jenkins v. Handel, 10 P.3d 586, 589 

(Alaska 2000)) (internal quotation omitted); see also King v. King, 477 P.2d 356, 359 
(Alaska 1970) (quotingHouger v. Houger, 449 P.2d 766, 773 (Alaska 1969) (concluding 
that a superior court is "justified in modifying          . . . custody arrangements only if it had 
been shown that since the date of entry of the judgment changed facts and circumstances 
affecting the welfare of the children required modification for the best interests of the 
children."). 

        9       McLane  v.   Paul,   189   P.3d   1039,   1043   (Alaska   2008)   (citing  S.N.E.   v. 

R.L.B., 699 P.2d 875, 878 (Alaska 1985)). 

        10      Peterson, 214 P.3d at 340-41 (quoting  Gratrix v. Gratrix, 652 P.2d 76, 

82-83 (Alaska 1982) (internal quotation marks omitted)). 

        11      See Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999) (requiring that 

the movant prove a substantial change as a threshold to custody modification). 

                                                  -13-                                            6615
 

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

        C.	     The     Superior      Court    Did    Not    Err   In   Enforcing      The Parenting 
                Agreement. 

                The   court   notes   that   the   superior   court   is   not   bound   by   the   Parenting 

Agreement, and concludes that the superior court erred by modifying custody without 

undertaking a best-interests analysis. 

                But the superior court did not modify custody at all - it simply enforced 

the   parties'   existing,   court-approved   Parenting   Agreement.        The   Nelsons   may   have 

reached their Parenting Agreement by way of settlement and without counsel, but it is 

apparent that they worked with the Fairbanks trial court's child custody negotiators to 

come to their agreement: these kinds of settlements are encouraged by the legislature and 

by   this   court,12 and   the   superior   court   specifically   "approved"   the   Agreement   in   its 

Findings and Conclusions for the divorce.13 

                Stipulated custody arrangements are of course subject to modification under 

the changed circumstances doctrine.14            But in my view it should take more than one 

parent's move from Fairbanks - a specific eventuality that the parties contemplated and 

planned for - to show a substantial change in circumstances to modify the custody 

arrangement set out in this Parenting Agreement. 

                The court today pays little heed to the parties' agreement, and finds instead 

that when parents agree on a custody arrangement that contemplates an upcoming move 

        12	     See Crane v. Crane, 986 P.2d 881, 888-89 (Alaska 1999). 

        13      It was at that point that if questions about the children's best interests were 

raised,   the   superior   court   had   the   discretion   to   inquire   further   before   adopting   and 
approving the Agreement.  Crane, 986 P.2d at 889. 

        14      Crane, 986 P.2d at 889 n.4 (citing Garding v. Garding, 767 P.2d 183, 185 

(Alaska 1989)). 

                                                  -14-	                                              6615 

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

-    even when this agreement has been explicitly adopted by the superior court - one 

parent can still invoke this same upcoming move as a changed circumstance for custody 

modification purposes.       In my view this conclusion is incorrect, and also stretches the 

meaning of "changed circumstance" too far. What is the point of explicitly providing for 

foreseeable changes in a custody agreement if the foreseen move will trigger a new best 

interests analysis? 

        D.      Conclusion 

                The Nelsons' Parenting Agreement reflects careful consideration of the 

children's best interests in stability; it also expressly contemplates a move by one parent 

from Fairbanks and the parties agreed upon custody arrangements when this occurred. 

I agree that remand for determination of the custody investigator fee is appropriate, but 

because   I   would   affirm   the   superior   court's   order   declining   to   modify   custody   and 

enforcing Justin and Erica's Parenting Agreement, I respectfully dissent in part. 
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