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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Stephanie W. v. Maxwell V. (4/27/2012) sp-6669

Stephanie W. v. Maxwell V. (4/27/2012) sp-6669

        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 

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                 THE SUPREME COURT OF THE STATE OF ALASKA 



STEPHANIE W.,                                  ) 

                                               )       Supreme Court No. S-14183 

                        Appellant,             ) 

                                               )       Superior Court No. 3PA-09-02329 CI 

        v.                                     ) 

                                               )       O P I N I O N 

MAXWELL V.,                                    ) 

                                               )       No. 6669 - April 27, 2012 

                        Appellee.              ) 

                                               ) 



                Appeal from the Superior Court of the State of Alaska, Third 

                Judicial District, Palmer, Eric Smith, Judge. 



                Appearances:      Richard W. Postma, Jr., Law Offices of Dan 

                Allan    &    Associates,    Anchorage,      for   Appellant.       No 

                appearance by Appellee. 



                Before:     Carpeneti,     Chief    Justice,  Fabe,    Winfree,    and 

                Stowers, Justices. [Christen, Justice, not participating.] 



                CARPENETI, Chief Justice. 



I.      INTRODUCTION 



                A couple lived together briefly in New Mexico and then separated, with the 



man moving permanently to Alaska. Shortly after he moved, the woman discovered that 



she was pregnant and gave birth to a son.           The child had no contact with his father for 



the first three years of his life.   At his paternal grandmother's initiative, the child then 



visited his father in Alaska several times over a three-year period, including a year-long 


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

visit during which he attended kindergarten in Alaska.           After the boy returned to New 



Mexico, the boy's father filed for legal and primary physical custody.            After a trial, the 



superior court awarded primary physical custody to the father and summertime visitation 



to the mother. Legal custody as to schooling decisions was awarded to the father.  Legal 



custody as to all other decisions was awarded jointly to the mother and father.  The 



mother appeals. 



II.     FACTS AND PROCEEDINGS 



        A.      Facts 



                Terrance   V.   was   born   in   New   Mexico   in   2002   to   Stephanie   W.   and 

Maxwell V.1     His parents have never married and lived together only briefly, for about 



six months.    Stephanie, a nurse, has a history of childhood sexual trauma and has been 



diagnosed with Post Traumatic Stress Disorder; she claimed that she was raped during 



her pregnancy and that a man broke into her home and attempted to rape her daughter. 



She has two daughters from two previous relationships.              Both girls are in therapy and 



live with their mother.      Maxwell, a plumber, has several prior criminal convictions for 



which he served several years in jail. 



                Before Terrance was born Maxwell left for Alaska and never returned. 



Stephanie testified that "[Maxwell] seemed to disappear" after Terrance was born.  He 



had no contact with Terrance during the first three years of his son's life. 



                Maxwell's mother also lived in New Mexico.              After Terrance was born, 



Stephanie began attending nursing school and occasionally dropped Terrance off at his 



grandmother's for childcare.       In 2005, Terrance's grandmother brought him to Alaska 



to meet his father, with Stephanie's permission. When Terrance first arrived he acted out 



        1       We use pseudonyms throughout this opinion to protect the privacy of the 



persons involved. 



                                                 -2-                                             6669 


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

and required strict parenting.       He responded very well to this regime, transforming, in 



the words of a neighbor, from "an out of control kid" to "a very sweet little boy." 



                Terrance visited his father again in 2006 and 2007.              In 2008, the parties 



arranged for Terrance to spend his first year of school in Alaska.  Shortly after he arrived 



in   Alaska,    school    records   documented       sexual   misbehavior      on   his  part.   During 



Terrance's year in Alaska, his kindergarten teachers noted several incidents, most near 



the beginning of the school year, in which Terrance behaved aggressively toward other 



students.   His behavior improved as the year progressed:              His report card at the end of 



the   year   showed   that   "he   met   all   of   the   criteria   for   being   a   successful   kindergarten 



student" except for counting skills, and his teacher reported that "the rough patches" 



experienced   at   the   beginning   of   the   year   were   "always   handled   appropriately"   by 



Maxwell. 



                After returning to New Mexico,  Terrance did not want to sleep by himself 



and wet the bed.       Stephanie testified that Terrance told his sister that his father had 



shown him a picture of a naked girl.          Stephanie filed a complaint with the police, who 



interviewed Terrance, Stephanie, and her daughters.   Terrance stated that his father had 



shown him a photo of a naked girl, and that Maxwell had told him that if Terrance 



returned   to   Alaska,   "he   would   get   a   girl   to   show   him   her   privates." Terrance   was 



sexually   aggressive toward his sister and engaged in other age-inappropriate sexual 



behavior. 



                Later, Stephanie made a second complaint to the police.  The police report 



says that Stephanie reported that Terrance said his father had shown him a video of a 



young girl having sex with a man. Terrance confirmed this with the interviewing officer. 



During an interview with a forensic interviewer Terrance said that his father spanked him 



with a belt, leaving marks, and that his father had shown him a picture of a naked girl 



                                                   -3-                                             6669
 


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

and pornographic movies, standing behind him and holding his eyes open during the 



movies. 



                In school, Terrance was aggressive toward other children. His teacher filed 



a   Child   Protective   Services   report   as   his   behavior   indicated   that   he   was   "sexually 



knowledgeable"   and   she   "was   concerned   that   he   might   be   in   trouble."    In   school, 



Terrance was continually disorganized and had problems relating to other students.  His 



reading level was below average, which his teacher attributed in part to not reading at 



home. 



                His teacher tried communicating with Stephanie about Terrance's problems, 



but stopped doing so because of Stephanie's "erratic responses and . . . frightening 



interpretations,   she   just   blew   everything    out   of   proportion."  She   reported     seeing 



Stephanie "pitch fits in the hallway" and hearing her "announce to everyone within 



hearing range that her son ha[d] been sexually abused," and she feared that Stephanie 



"was not stable." 



                In January 2010, due to Terrance's behavioral issues and his problems at 



school,   Stephanie   brought   Terrance   to   a   child   and   family   therapist.  The   therapist 



concluded that Terrance had Attention Deficit Hyperactivity Disorder (ADHD) and that 



he had been exposed to pornography, which contributed to Terrance's inappropriate 



sexual behavior.   Terrance told the therapist that Maxwell had shown him pornographic 



pictures and touched him in a questionable manner while bathing him. The therapist was 



uncertain as to whether Terrance had ever been inappropriately touched.                   During one 



counseling session, Maxwell called Terrance and the call was placed on speakerphone. 



Though his conversation with Terrance was appropriate, Maxwell told Stephanie he was 



going to send something in the mail that would "hurt her and her family," a statement 



Stephanie interpreted as a threat. 



                                                  -4-                                            6669
 


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

               Terrance also underwent a neuropsychological evaluation. The evaluation 



concluded that there were "no major 'red flags' in terms of emotional or even behavioral 



functioning" but suggested family therapy so that Stephanie could "function at her best 



as a parent," and mentioned that "high-quality social work seems essential," in particular 



a social worker who "will [] get along with [Terrance's] mother." 



        B.     Proceedings 



               In November 2009, Maxwell filed in Alaska for sole legal and primary 



physical custody of Terrance.  Stephanie asked for the same.  Superior Court Judge Eric 



Smith held a three-day hearing in November and December 2010.                 Judge Smith heard 



from   both   parents;   Terrance's   teacher;   Maxwell's   girlfriend,   employer,   and   former 



landlord; and the child therapist who had treated Terrance.            During the proceedings, 



Stephanie testified that she felt "Terrance was sexually abused, that he has had sex . . . 



and I think his dad is responsible."  Terrance's teacher testified that Maxwell dealt with 



Terrance   well.   Maxwell's   landlord   reported   that   Maxwell   was   a   conscientious   and 



loving parent who dealt well with situations in which he had to discipline and care for 



Terrance.  A small portion of the testimony from Stephanie and Maxwell covered child 



support, with the parties generally agreeing that Maxwell had sent approximately $3,000 



since Terrance's birth. 



               The child and family therapist testified that Stephanie was a fretful and 



overprotective mother, whose history of sexual abuse engendered anxiety over certain 



behaviors. While feeling that it is "unusual that pornography would result in th[is] level" 



of inappropriate behavior, he did not believe that Terrance's story was coached as it 



remained consistent throughout his sessions. 



               On January 5, 2011, the superior court issued its findings as to the "best 



interests of the child" factors in accordance with AS 25.24.150(c).            While finding the 



allegations of sexual abuse "very troubling," the superior court found that Stephanie had 



                                                -5-                                           6669
 


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

not proven this abuse and believed instead that "to a large extent, the behavior is the 



result of the many changes and pressures [Terrance] felt upon his return to his mother's 



house, not the least of which was the fact that . . . [Stephanie] often badly overreacts to 



stressful or difficult situations." 



                The superior court found that the factor of continuity favored Maxwell, as 



Stephanie's circumstances were "more fluid" while Maxwell's home and lifestyle were 



"relatively stable."    The court noted that Stephanie's intense work schedule and long 



daily   commute   was   very   hard   on    the   family   and  could   be   a   roadblock   to   proper 



parenting.    The   court   also   found   that   Maxwell's   comment   to   Stephanie   during   the 



conference call with Terrance and his therapist referred to a legal action rather than a 



threat of physical harm.  The court concluded that Stephanie was "very unlikely to foster 



a relationship with [Maxwell]" due to her anxiety relating to alleged sexual abuse and 



threats. 



                Overall, the superior court found that "[Maxwell] was better able to meet 



[Terrance]'s needs" and that it was in Terrance's best interests for Maxwell to have 



primary physical custody.        However, the court awarded sole legal custody to Maxwell 



only as to school issues and granted joint legal custody as to all other matters.  The 



superior court denied Stephanie's motion for reconsideration. 



                Stephanie appeals, asserting the superior court (1) committed clear error in 



finding that Terrance had not been sexually abused; (2) improperly used Stephanie's 



good faith assertion of sexual abuse and her response to Maxwell's threat against her in 



awarding custody to Maxwell; (3) did not properly weigh   the sibling bond between 



Terrance and his half-sisters; and (4) failed to properly consider the fact that Maxwell 



had not paid child support for most of Terrance's life. 



                                                  -6-                                           6669
 


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

III.	   STANDARD OF REVIEW 

                "The trial court has broad discretion in deciding child custody disputes."2 



 We will not set aside a custody determination unless a review of the entire record shows 



that the controlling findings of fact are clearly erroneous or the trial court has abused its 

discretion.3    "A finding of fact is clearly erroneous only when a review of the entire 



record   leaves   us   with   a   definite   and   firm   conviction   that   the   trial   court   has   made   a 

mistake."4    "An abuse of discretion has occurred if the trial court considered improper 



factors   in   making   its   custody   determination,   failed   to   consider   statutorily   mandated 

factors, or assigned disproportionate weight to particular factors while ignoring others."5 



IV.	    DISCUSSION 



        A.	     The Superior Court Did Not Clearly Err In Finding That Terrance 

                Was Not Sexually Abused By His Father. 



                After considering the conflicting evidence, the superior court found that 



Stephanie   had   not   proven   that   Maxwell   had   sexually   abused   Terrance.       As   to   the 



allegations   of   sexual   abuse,   we   agree   with   the   superior   court   that   "[t]his   is   a   very 



troubling situation."  However, a review of the record does not indicate that the superior 



court's findings are clearly erroneous. 



                Stephanie relies heavily on the testimony of Terrance's therapist to support 



her argument. The therapist testified that it was his belief that Terrance had "experienced 



        2	      Melendrez v. Melendrez , 143 P.3d 957, 959 (Alaska 2006). 



        3       Id. (citing Chesser-Witmer v. Chesser, 117 P.3d 711, 715 (Alaska 2005)). 



        4       Evans v. Evans , 869 P.2d 478, 479 (Alaska 1994) (citing Money v. Money , 



852 P.2d 1158, 1161 (Alaska 1993)). 



        5       Id. at 479-80 (citing McDanold v. McDanold , 718 P.2d 467, 468 (Alaska 



1986)). 



                                                  -7-	                                            6669
 


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

sexual abuse resulting in inappropriate sexual behavior," and he concluded that the abuse 



"happened in Alaska" based on "reports from the school in Alaska." 



                 In reaching its conclusion, the superior court considered testimony from 



multiple sources in Alaska and New Mexico.                 Importantly, the superior court carefully 



weighed the testimony of Terrance's therapist, noting inconsistencies in the testimony 

and the therapist's failure to connect           Maxwell to Terrance's behavior.6          The court also 



found credible both Maxwell's and his girlfriend's testimony regarding sexual materials 



and behavior in their household. 



                 The superior court elaborated on its deliberations during the proceedings:
 



                 I take this stuff really seriously.   I have way too many sexual
 

                 abuse   of   a   minor   cases   to   ever,   ever,   ever   minimize   the
 

                 possible   impact   on   an   eight   year   old   kid   of   sexual   abuse.
 

                 This is really serious.
 

                 . . . .
 



                 And they're serious allegations and I just want to make it
 

                 clear to both parents that I'm not messing around here and if
 

                 there's an issue I'm going to make sure I do something about
 

                 it. I just have too many cases like this and I see too many
 

                 kids get too badly messed up by this stuff.  So I don't want to
 

                 mess around here at all but I need to be really clear because
 

                 the severity of the allegations is sufficient that I need to know
 

                 exactly what is going on here.         All right?    
 



                 Facing a difficult factual issue, and having considered all of the testimony 



and evidence on both sides of the issue, the superior court concluded that "[Stephanie] 



has not proven by a preponderance of the evidence that [Maxwell] sexually abused [their 



        6        For example, Terrance never told his therapist that Maxwell forced him to 



look   at   pornography.        The   therapist   "did   not   seem   to   give   much   credence   to   the 

allegation of inappropriate touching during a bath."                The therapist testified that "it was 

very unusual for a child to exhibit the type of behavior exhibited by Terrance based on 

only being exposed to pornographic materials three times over the course of a year." 



                                                     -8-                                               6669
 


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

child]" and that "neither party was able to prove by a preponderance of the evidence just 



what has led [Terrance] to act out as he has." 



                 The superior court did not clearly err in declining to rule in Stephanie's 



favor.   It is not our role to reweigh the evidence, and credibility determinations are the 

province of the trial court.7       The superior court is in the best position to evaluate the 



evidence before it, taking due account of the demeanor and credibility of witnesses. 



While this is a difficult case, we are not left with a definite and firm conviction that a 



mistake has been made. The superior court took great pains to explain its reasoning, 



which was supported by the record. Accordingly, we affirm the superior court's findings 



regarding the alleged sexual abuse. 



        B.	      The   Superior   Court   Must   Reconsider   The   "Close   And   Continuing 

                 Relationship" Factor. 



                 Stephanie      asserts  that   the  superior    court   erroneously     considered     her 



unwillingness to encourage a close and continuing relationship with Maxwell in violation 

of AS 25.24.150(c)(6).8        She argues that   "good faith" reporting of a threat and possible 



child sexual abuse should not be used to punish her. She argues that her claim, although 



ultimately   rejected   by     the   superior   court,   was   made   in   good   faith   and  that   under 



        7	      Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008). 



        8	       AS 25.24.150(c)(6) provides, in relevant part: 



                 In determining the best interests of the child the court shall 

                 consider   .   .   .   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; . . . 



                                                    -9-	                                             6669
 


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

AS     25.24.150(c)(6)      the  court   is  precluded    from    considering     her  unwillingness      to 



facilitate a relationship between Maxwell and Terrance. 



                 As   written,   the   statute   restricts   the   court   from   considering   a   parent's 



unwillingness to facilitate and encourage a relationship between the child and the other 



parent "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."9               An 



affirmative finding must be made on both the actual existence of abuse and the risk of 

danger.10    Once that finding is made, then the superior court must ignore the factor; that 



is, it must not hold against a parent an unwillingness to encourage a relationship with a 



parent shown to have engaged in sexual abuse or domestic violence.                    But the statute is 



silent on the procedure to be followed if the court finds that abuse has not been shown. 



Here, the superior court found that Stephanie did not "show that the other parent . . . 



sexually assaulted or engaged in domestic violence against the . . . child." 



        9        AS 25.24.150(c)(6). 



        10       As we stated in Puddicombe v. Dreka : 



                 Once the trial court makes an evidence-based finding that 

                 domestic   violence   occurred,   however,   it   should   explicitly 

                 address whether or not the parent is a continuing threat to the 

                 health and safety of the other parent of the children prior to 

                 relying on the parent's willingness to foster a relationship 

                 under AS 25.24.150(c)(6). . . . [T]he superior court should 

                 make     findings    as  to   whether     [the  parent]    represents    a 

                 continuing danger to the health and safety of [the children]. 

                 If   the   court   finds   that   [the   parent]   does   represent   such   a 

                 danger,    then   it  should    revisit  the  custody    issue   without 

                 relying on AS 25.24.150(c)(6). 



                Puddicombe v. Dreka , 167 P.3d 73, 77 (Alaska 2007); accord Williams v. 

Barbee , 243 P.3d 995, 999 n.5 & 6 (Alaska 2010). 



                                                   -10-                                              6669
 


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

                How a superior court should analyze the "willingness to allow a close and 



continuing relationship" factor once it decides the factual dispute concerning sexual 



abuse or domestic violence against the reporting parent is an issue that we have not 



previously confronted.       Stephanie argues that it would be bad policy to hold her good 



faith   belief  that  Maxwell     sexually    abused    Terrance    against   her,  in  analyzing   her 



willingness to allow a close and continuing relationship between Terrance and Maxwell. 



She argues that "no parent in their right mind would ever make a good faith report of 



domestic violence or sexual abuse, because that . . . report would be used to remove a 



child from the reporting parent's custody and to place the child with the . . . parent who 



was accused of wrongdoing." Here, the superior court acknowledged that the allegations 



of sexual abuse were "troubling" and that neither party had been able to demonstrate 



what   had   caused   Terrance   to   act   out   sexually. The   superior   court   also   noted   that 



Stephanie had adduced expert opinion testimony from "a highly experienced forensic 



interviewer of children" and from a children's counselor who were generally supportive 



of Stephanie's suspicions. 



                In light of the apparent good-faith basis of Stephanie's allegations, we 



conclude that the superior court should re-weigh the "willingness to allow a close and 



continuing relationship" factor.        On remand, the court should not consider this factor 



against   Stephanie     unless   she  has   continued    her  unwillingness      to  facilitate  such  a 



relationship in the period after the superior court made its evidence-based finding that 



Maxwell had not abused Terrance. 



        C.	     The     Superior     Court    Did    Not   Err    In  Its  Consideration       Of The 

                Importance Of Maintaining Sibling Bonds. 



                In considering Terrance's best interests the superior court mentioned that 



Terrance had two half-sisters with whom he "unquestionably" had a bond, but did not 



find that bond to be an overriding factor in the best interests analysis. Stephanie disputes 



                                                 -11-	                                           6669
 


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

the superior court's handling of sibling bonds on two grounds.                  First, Stephanie argues 



that once the superior court found that there was a bond between Terrance and his sisters, 

McQuade v. McQuade 11 requires that the court "make clear findings that separating these 



siblings was 'clearly required' or 'necessary.' " 



                 But McQuade does not go this far.            In McQuade , the appellant argued in 



a custody dispute that the superior court gave too much weight to sibling bonds and not 

enough weight to parental bonds.12           In that case we "declined to adopt a rigid standard 



for weighing the importance of maintaining sibling bonds in custody disputes, and . . . 

instead articulated a more flexible approach,"13 which is that 



                 [c]onsideration   should   be   given   to   the   desirability   of   not 

                 separating the children unless their welfare clearly requires 

                 such a course. As in other facets of the difficult problems 

                 confronting a trial judge in custody matters, there is no hard 

                 and fast rule. The question of whether or not it is necessary 

                 to   separate    children     must    depend     upon    the   facts   and 

                 circumstances of each particular case.[14] 



In short, McQuade does not require that the superior court make any findings, rather, 



McQuade establishes that the trial court has substantial discretion when considering and 

weighing sibling bonds.         Another case, Craig v. McBride,15 makes this clear: 



                 [The] standard does not require a showing of "necessary" or 

                 "compelling"   reasons   in   order   for   a   trial   court   to   separate 

                 siblings.    Rather,     we   prefer    to  accord     trial  judges    the 



         11      901 P.2d 421 (Alaska 1995). 



         12      Id . at 425. 



         13      Id. 



         14      Id. (quoting Nichols v. Nichols , 516 P.2d 732, 736 (Alaska 1973)). 



         15      639 P.2d 303 (Alaska 1982). 



                                                    -12-                                              6669
 


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

                necessary discretion to best respond to the myriad of factual 

                settings which will invariably arise in custody matters, at all 

                times cognizant that it is the best interests of the child which 

                is the paramount consideration. Though maintaining sibling 

                relationships will typically be in the best interests of the child, 

                cases will undoubtedly arise where the best interests of the 

                child dictate otherwise.[16] 



The superior court was required to consider the best interests of the child, including any 



sibling bonds.     It was not required to make the specific findings urged by Stephanie. 



                Relatedly, she argues that the superior court failed to accord proper weight 



to the sibling bonds while focusing on and giving great weight to the "the willingness 



and ability of each parent to facilitate and encourage a close and continuing relationship 

between the other parent and the child."17 



                We     have    already   considered     in  the  previous     section   the  "close    and 



continuing relationship" factor.        With regard to Stephanie's argument that the superior 



court gave too little weight to the importance of sibling bonds, her argument is not 



persuasive.  Craig v. McBride is again instructive: 



                Were   our   policy   in   regard   to   keeping   siblings   together   to 

                override all other indications of the child's best interest, a 

                parent with a child who is either a step- or half-sibling of the 

                child   in   dispute   would   invariably   obtain   custody.   Such   a 

                result does not comport with the fundamental premise that 

                trial courts enjoy wide discretion in ascertaining, by reference 

                to AS 25.25.150, the best interests of the child.[18] 



The superior court has wide discretion to ascertain a child's best interests and to weigh 



the best interests factors.      Here, the superior court acknowledged Terrance's sibling 



        16       Craig, 639 P.2d at 306. 



        17      AS 25.24.150(c)(6). 



        18       Craig, 639 P.2d at 307. 



                                                   -13-                                               6669 


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

bonds but found them to be "of lesser importance than the other custody factors."                    A 



review of the record reveals little evidence that sibling bonds were of overwhelming 



importance to Terrance or to his well-being.   Accordingly, weighting sibling bonds less 



than other factors was not an abuse of discretion. 



        D.	     The     Superior     Court    Did    Not   Award      Custody      In  Violation     Of 

                AS 25.20.110(b) But Did Fail To Consider Maxwell's Failure To Pay 

                Child Support Under The Continuity And Stability Factor. 



                Stephanie argues that the superior court erred by not considering Maxwell's 



failure to pay child support before awarding him primary physical custody as required 

by   AS   25.20.110(b).19     In   support   of   her  argument   she    (1)  points   to  excerpts   of 



Maxwell's statement that he had sent only about $3,300 in support since Terrance's 



birth, (2) points to trouble paying the bills, and (3) points to the fact that her nursing 



degree took longer than anticipated because she had to support her children.                 But even 



accepted as true, these facts do not establish a violation of AS 25.20.110(b). 



        19	     AS 25.20.110(b) provides: 



                When making a determination relating to child custody under 

                (a) of this section, the court shall consider the past history of 

                the parents with respect to their compliance with the child 

                support     payment     provisions    of  temporary     or  permanent 

                support orders or agreements relating to the child or to other 

                children.   Under   this   subsection,   the   court   may   consider   a 

                parent's failure to pay child support only if the parent had 

                actual    knowledge      of  the   amount     of  the   child  support 

                obligation and had funds available for payment of support or 

                could have obtained those funds through reasonable efforts, 

                as determined by the court. 



                                                 -14-	                                           6669
 


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

                 The statute makes clear that "the court shall consider the past history of the 

parents   with   respect to   their   compliance   with   . . . support orders   or   agreements."20 



Stephanie correctly points out that "[w]hether a support order exists or not, '[a] parent 

is obligated both by statute and at common law to support his or her children.' "21                    But 



the purpose of AS 25.20.110(b) is narrow; it counts noncompliance with court orders or 



voluntary agreements against the noncompliant parent who seeks custody.   In this case, 



Maxwell was never subject to a support order   or agreement.                    Therefore, he is not a 



noncompliant parent seeking custody and the issue was not important to the custody 



determination. 



                 Although Maxwell's obligations under AS 25.20.110(b) were not relevant 



to the custody determination, we are troubled by the reliance on Maxwell's more stable 



economic status compared to Stephanie's long commute and hard working hours while 



ignoring Maxwell's failure to pay more than $3,300 in child support over the course of 



his   child's   life. Here,   the   superior   court   weighed   Stephanie's   140-mile   round   trip 



commute and her four weekly 12-hour shifts (from 6:00 a.m. to 6:00 p.m.) against her 



in reviewing the stability factor, determining that her work schedule "[was] very hard on 



all of them, and provide[d] some roadblocks in terms of her working with the kids on 



homework and the like."         Given that Maxwell's failure to pay child support was likely 



a   contributing   factor   to   Stephanie's   grueling   work   schedule,   we   are   puzzled   by   the 



superior   court's   conclusion   that   Stephanie's   "circumstances   are   more   fluid,   as   the 



children     have    to  spend    a  significant    amount     of  time   away     from   their   home    to 



        20	      Id. 



        21       Crayton v. Crayton, 944 P.2d 487, 489 (Alaska 1997) (quoting Matthews 



v. Matthews , 739 P.2d 1298, 1299 (Alaska 1987)). 



                                                   -15-                                                 6669 


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

accommodate [Stephanie's] work schedule" and that the stability factor "therefore favors 



[Maxwell.]" 

                A parent has a general statutory and common law duty to support a child.22 



In light of this obligation, we remand to the superior court to reconsider the continuity 



and   stability   factor   taking   account   of   Maxwell's   failure   to   provide   any   meaningful 



monetary support for Terrance and Stephanie's efforts to provide economically for her 



children. 



V.      CONCLUSION 



                Because Stephanie has not shown that the superior court's findings on the 



sexual abuse issue were clearly erroneous, we AFFIRM the superior court's finding that 



Terrance had not been sexually abused by Maxwell.   Because the superior court did not 



err in its consideration of sibling bonds, we AFFIRM the superior court's conclusion in 



this respect.    But we REMAND the custody issue for a new consideration of the best 



interests of the child in two respects: (1) Because Stephanie brought her allegations of 



sexual abuse against Maxwell in good faith, we REMAND for reconsideration of the 



"close   and   continuing   relationship"   factor   in   accordance   with   this   opinion;   and   (2) 



because the court did not discuss Maxwell's ongoing obligation to support Terrance, we 



REMAND for consideration of the continuity and stability factor in accordance with this 



opinion. 



        22      AS 25.20.030; see, e.g., Benson v. Benson , 977 P.2d 88, 92 (Alaska 1999). 



                                                 -16-                                              6669 

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