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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Co v. Matson (11/29/2013) sp-6846

Co v. Matson (11/29/2013) sp-6846

         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  



KEVIN CO,                                            )  

                                                     )        Supreme Court No. S-14248  

                          Appellant,                 )  

                                                     )        Superior Court No. 3HO-09-00265 CI  

         v.                                          )  

                                                     )        O P I N I O N  

KELLY MATSON,                                        )  

                                                     )       No. 6846 - November 29, 2013  

                          Appellee.                  )  

                                                     )  



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

                                    

                  Judicial  District,  Homer,  Charles  T.  Huguelet,  Judge,  and  

                  Peter G. Ashman, Judge pro tem.  



                  Appearances:        Rhonda       F.    Butterfield,      Anchorage,        for  

                  Appellant.        Michelle      S.   Nesbett,   Nesbett   &   Nesbett,  

                  Anchorage, for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                              

                  Bolger, Justices.  



                  FABE, Chief Justice.  



I.       INTRODUCTION  



                  In a divorce proceeding between Kevin Co and Kelly Matson, the superior  



court awarded Matson sole legal custody and primary physical custody of the couple's  

                                                              



two minor children.  Co challenges the legal and physical custody awards as well as the  



visitation  schedule.    Because  we  conclude  that  the  superior  court  engaged  in  a  


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

                                                                                            

comprehensive review of the statutory best-interests factors, made clear and thoughtful  



                                                     

findings of fact, and did not abuse its discretion, we affirm the superior court's custody  



decision in all respects.  



II.       FACTS AND PROCEEDINGS  



                                    

                    Kevin Co and Kelly Matson live in Homer and have two children, Spencer  



                                                                                                            

and Marina.  Spencer is seven years old; Marina is five. Co and Matson were married in  



2007 and separated in 2009.  In September 2009 Co filed for divorce.  



                                                                                                    

                    In a motion for interim custody, Co sought joint legal and physical custody  



                                                                                                                   

of both children.  Matson opposed the motion and sought primary physical custody of  



the children.  



                                                                                                                    

                    In a hearing before Superior Court Judge Charles T. Huguelet, the parties  



                                                                                                           

agreed on an interim custody arrangement, under which they were to share joint legal  



                                                  

custody of both children. Under the agreement, Matson was to assume primary physical  



custody of Marina, and Matson and Co were to share physical custody of Spencer.  The  



custody arrangement called for a gradual increase in the time the children would spend  



with Co, eventually leading to an even division of custodial time between the parents.  



                                                           

In addition to the parties' agreed upon custody arrangement, the superior court ordered  



both parents not to use marijuana while the children were in their custody.  



                                                   

                    A few months later, Matson filed an emergency motion to modify custody.  



                                                                         

In her supporting affidavit, Matson claimed that Spencer was becoming violent, that Co  



                                                  

was becoming unpredictable and verbally abusive, and that their lawyers had to be called  



                                                                      

in to resolve an incident in which Marina was sick and the parents could not determine  



                                                                                        

who should take her to the doctor.  Matson concluded that cooperative co-parenting had  



become impossible.  Judge Huguelet declined to modify the original interim custody  



                                                       

arrangement but scheduled another hearing for the end of the month.  At that second  



                                                               -2-                                                         6846
  


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

hearing, Judge Huguelet again declined to alter the custody arrangement, but he did halt  



the gradual increase in Co's custody time with the children.  



                   Pro tem Superior Court Judge Peter G. Ashman conducted the divorce trial.  

                                                                                                          



As of the date of trial, Co had custody of Spencer for three overnights each week and of  

                                



Marina for one overnight each week.  At trial, Matson sought sole legal and primary  



physical custody of the children.  Co  sought joint legal and physical custody of the  

                                                        



children, with delayed implementation of the equal custody schedule for Marina.  



                                                                                              

                   In  his  written  findings  of  fact  and  conclusions  of  law,  Judge  Ashman  



concluded  that  while  both  parents  possessed  "considerable  talent  and  ability,"  the  



                                                        

inability of the parents to communicate necessitated an award of sole legal custody to one  



parent.  Both parents agreed at trial that communication and agreement on important  



                                                                 

issues, such as medical care, was not possible.  In awarding sole legal custody to Matson,  



Judge Ashman concluded that Matson "demonstrated a more mature parenting approach"  



                                                    

and would be "more likely to foster a strong relationship between the children and the  



other parent than Mr. Co would be able to do if the situation were reversed."  Judge  



Ashman also found that Matson should be awarded primary physical custody due to "the  



young age of the children and the need for stability as they approach school age."  



                   Judge Ashman specifically considered all of the statutory best-interests  



                                    

factors and found that a majority of the nine factors favored Matson.  He found that the  



other factors favored neither Co nor Matson.  Accordingly, Judge Ashman awarded  



Matson sole legal custody and primary physical custody of the children and Co visitation  



        

with  both children on three weekends a month.  Co was also to have visitation with  



Spencer on all Wednesday evenings and with Marina two Wednesday evenings a month.  



                                                                                               

The order also provided vacation and summer visitation schedules.  Co now appeals the  



superior court's custody determination.  



                                                           -3-                                                     6846
  


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

III.       STANDARD OF REVIEW  



                      "We will not 'reverse a trial court's resolution of custody issues unless,  



after a review of the entire record,' we are 'convinced that the trial court abused its  



                                                                                                                       1  

                                                                                                                          An abuse of  

discretion or that its controlling factual findings are clearly erroneous.' "  



discretion will be found if the trial court "considered improper factors, or improperly   



                                                                                         2  

weighted certain factors in making its determination."                                      Clear error will be found only  



when a review of the entire record leaves us with "a definite and firm conviction . . . that  

                                                                                                                                       



                                             3  

a mistake has been made."   Particular deference is given 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."4  



IV.        DISCUSSION  



                      In his appeal Co challenges the superior court's decisions on both legal and  

                                                                    



physical custody.  Physical and legal custody are two distinct concepts that must be  

                                                                



                                 5  

analyzed separately.   " 'Legal custody' refers to the responsibility for making 'major  

                                                                                   



decisions affecting the child's welfare' and is a status that may be held by a parent who  

                                                                            



           1          Michele  M.  v.  Richard  R. ,  177  P.3d  830,  834  (Alaska  2008)  (citing  



 Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000)).  



           2          Millette v. Millette , 177 P.3d 258, 261 (Alaska 2008) (quoting Gratrix v.  



Gratrix, 652 P.2d 76, 80 (Alaska 1982)).  



           3          Ebertz  v.  Ebertz ,  113  P.3d  643,  646  (Alaska  2005)  (alteration  in  the  



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



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



           5          Collier v. Harris, 261 P.3d 397, 403 (Alaska 2011).  



                                                                     -4-                                                              6846
  


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

                                                      

does not have 'physical custody,' which refers to the responsibility for physical care and  



                                                         6  

immediate supervision of the child."   



                                                                                                                  

                     In a divorce proceeding both legal and physical custody are analyzed using  



                                                                                 7  

the best-interests factors found in AS 25.24.150(c).   Those factors are:  



                     (1)       the physical, emotional, mental, religious, and social  

                     needs of the child;  



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

                     needs;  



                     (3)       the 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 parent;  



                     (5)       the  length  of  time  the  child  has  lived  in  a  stable,  

                                                                

                     satisfactory environment and the desirability of maintaining  

                                                              

                     continuity;  



                     (6)       the willingness and ability of each parent to facilitate  

                                                                

                     and encourage a close and continuing relationship between  

                     the other parent and the child, except that the court may not  

                                                                                                       

                     consider this willingness and ability if one parent shows that  

                     the   other  parent  has  sexually  assaulted   or  engaged   in  

                                                                                          

                     domestic violence against the parent or a child, and that a  

                                                                                  

                     continuing relationship with the other parent will endanger  

                     the health or safety of either the parent or the child;  



           6         D.J.  v.  P.C. ,  36  P.3d  663,  670  n.26  (Alaska  2001)  (citing  Bennett  v.  



Bennett , 6 P.3d 724, 726 (Alaska 2000)).  



           7         See, e.g., Hunter v. Conwell , 219 P.3d 191, 196 (Alaska 2009) (considering            



the AS 25.24.150(c) best-interests factors in a request for modification of both legal and       

physical custody); Ebertz , 113 P.3d at 646, 647 (considering the AS 25.24.150(c) best- 

interests factors in an initial determination of both legal and physical custody).  



                                                                  -5-                                                           6846
  


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

                    (7)       any  evidence  of  domestic  violence,  child  abuse,  or  

                    child neglect in the proposed custodial household or a history  

                                                                               

                    of violence between the parents;  



                    (8)       evidence that substance abuse by either parent or other  

                                                                                 

                    members of the household directly affects the emotional or  

                                        

                    physical well-being of the child;  



                    (9)	      other factors that the court considers pertinent.   



                    Co argues that the superior court erred in several respects.  We address each  



of his arguments in turn.  



          A.	       The Trial Court Did Not Err In Awarding  Sole Legal Custody To  

                                                                                              

                    Matson.  

                    The preference of the legislature is for parents to share joint legal custody.8  

                                                                                          



                                                                                                                         9  

"[A] court may award joint legal custody if it is in the best interests of the child."   Joint  



legal  custody,  however,  is  "only  appropriate  when  the  parents  can  cooperate  and  



                                                               10  

communicate in the child's best interest."                         Here the superior court found that Co and  



Matson were incapable of communicating or cooperating with regard to "the most basic  



kinds of issues involving the children's schedule, school or medical needs."  Thus, the  



                                                                                                                  

superior court concluded that an award of sole legal custody was necessary. Both Co and  



                                                                                                                         

Matson concede that constructive communication was no longer possible at the time of  



       11  

trial.     



          8         Farrell v. Farrell , 819 P.2d 896, 898 n.1 (Alaska 1991) (citing ch. 88,                             



 1(a), SLA 1982).  



          9         Jaymot  v.  Skillings-Donat ,  216  P.3d  534,  540  (Alaska  2009)  (citing  



AS 25.20.060(c)).  



          10        Id. (quoting Farrell , 819 P.2d at 899).  



          11  

                           

                    Co faults Matson for the breakdown in communication and suggests that  

Matson's communication style should have weighed against her in the legal custody  

                                                                                                               (continued...)  



                                                               -6-	                                                        6846
  


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

                   Co  contends,  however,  that  the  court  should  have  awarded  sole  legal  



                                                     

custody to him instead of Matson in light of these communication difficulties.  Co also  



                       

claims that the superior court erred in its consideration of the statutory best-interests  



                                                                12  

                                                                    Specifically, he challenges the superior  

factors in awarding Matson sole legal custody. 



                                              

court's findings regarding "the physical, emotional, mental, religious, and social needs  

                          13 and the ability of the parents to foster a relationship between the  

of the child[ren],"                                                         

children and the other parent.14  



                   The  first  best-interests  factor  requires  the  trial  court  to  examine  "the  



                                                                                                    15  

physical, emotional, mental, religious, and social needs of the child."                                 The superior  



court found that Matson would best be able to meet the physical needs of the children  



because of her attentiveness to their health, despite some concern regarding her failure  

                                                               



to have the children vaccinated.  Co maintains that he should have been awarded sole  



                                                                                                  

legal custody of the children because he would use legal custody  more wisely than  



Matson with regard to medical decision-making.  



                   Co also contends that the superior court disregarded his testimony regarding  



                                                                                                            

medical decisions.  At trial, Co testified that his first choice for medical care was for the  



children to be seen by a doctor at Homer Medical and that he believed that the children  



          11(...continued)  



determination.    The  trial  court's  award  to  Matson,  however,  is  grounded  in  its  

                                                                                                                  

determination that Matson is favored by the statutory best-interests factors.  We conclude  

                                                                                                         

that the trial court did not abuse its discretion in this determination.  



          12       AS 25.24.150(c).  



          13       AS 25.24.150(c)(1).  



          14       AS 25.24.150(c)(6).  



          15       AS 25.24.150(c)(1).  



                                                           -7-                                                     6846
  


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

should  be  vaccinated.    Co  challenged  Matson's  medical  decisions,  including  her  



preference  to  refrain  from  vaccinating  the  children.    Co  also  described  Matson's  



                     

attentiveness to the children's health as an "obsess[ion]," evidenced by her preparation  



                                     

of  a  food  journal,  her  insistence  that  the  children  experienced  allergies,  and  her  



requirement  that  the  children  adhere  to  strict  diets,  including  a  gluten-free  diet  for  



Spencer.  



                                                                                                       

                    But Matson testified at trial that she would be "happy to immunize the  



                       

kids," and she pointed out that Co had previously agreed that the children would not be  



                                                                      

vaccinated.  She also noted that Co had agreed that the children should be seen by both  



licensed  medical  doctors  and  naturopaths.    In  Matson's  view,  Co  was  not  as  well  



                        

informed about the children's medical needs and had failed to attend important medical  



appointments.  



                    Judge  Ashman  considered  Co's  concerns.  He  acknowledged  Matson's  



choice  to  pursue  alternative  medical  care  and  expressed  some  reservation  over  her  



                                                                    

opposition  to having the children vaccinated.  But Judge Ashman ultimately found that  



                                                                                                  

Matson "demonstrates a higher degree of attention to the children's physical and medical  



                                                                                                            

needs than does [Co]."  In light of the particular deference we give to a trial court's  

                                                                           16   we  cannot  conclude  that  Judge  

                                                                                                                

assessment  of  the  parties'  oral  testimony  at  trial,  



Ashman clearly erred in this finding.  



                    The  sixth  best-interests  factor  requires  the  trial  court  to  consider  "the  



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

                                                                         

                                                                                    17  Co questions the relevance  

relationship between the other parent and the child[ren]."  

                                                                                              



of this factor to the determination of legal custody and contends that it was an abuse of  

                                                                                                               



          16       Ebertz v. Ebertz , 113 P.3d 643, 646 (Alaska 2005).  



          17        AS 25.24.150(c)(6).  



                                                             -8-                                                           6846  


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

discretion  to  find  that  it  favored  Matson.    But  as  one  of  the  best-interests  factors  

enumerated in AS 25.24.150(c), its consideration by the superior court was relevant.18  



                                                                           

                   We next turn to Co's contention that the superior court erred in awarding  



                                                      19  

primary physical custody to Matson.                       



                                                                                                   

          B.	       The  Superior  Court  Did  Not  Err  By  Awarding  Primary  Physical  

                    Custody To Matson.  



                                                                                                             

                    Co alleges many errors by the superior court with regard to the award of  



                                                       

primary physical custody to Matson. Specifically he alleges that the superior court erred  



                                                                                                               

(1) in its consideration of the statutory best-interests factors, (2) by applying the "tender  



years doctrine," and (3) by failing to maintain the interim custody agreement.  



                    1.	      The  superior  court  did  not  err  in  its  consideration  of  the  

                             statutory best-interests factors.  



                    The superior court made thoughtful, detailed findings with regard to the  



                                                      

nine statutory best-interests factors, expressly discussing each factor.  It found that five  



                                                                                                         

of the factors favored Matson, while the rest favored neither parent.  Co challenges only  



the assessment of factors that the superior court found favored Matson.    



          18	      See supra note 7.  



          19        Co  suggests  that  the  superior  court  conflated  its  analyses  of  legal  and  



physical custody based upon the proximity of these topics in its written findings.  While  

                                                                                         

Co is correct that a superior court must consider physical and legal custody separately,  

                                                           

Collier v. Harris, 261 P.3d 397, 403 (Alaska 2011), there is no evidence that Judge  

                                                                                

Ashman  conflated  his  analyses  of  these  types  of  custody.    To  the  contrary,  Judge  

Ashman's findings included separate reasoning for his decisions on legal and physical  

custody.  



                                                             -9-	                                                      6846
  


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

                             a.	       The superior court did not err in concluding that Matson  

                                       was more likely to facilitate and encourage a close and  

                                       continuing relationship between Co and the children.  



                   The  sixth  best-interests  factor  requires  the  trial  court  to  consider  "the  



                                                                         

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



                                                                                            20  

relationship  between  the  other  parent  and  the  child[ren]."                               The  superior  court  



                                                                              

acknowledged  that  "[t]his  is  a  difficult  factor  to  assess"  but  found  that  Matson  



                                                                                                              

"demonstrated  the  more  thoughtful  approach  to  this  issue"  and  that  this  factor  



significantly favored Matson.  Specifically, the superior court found that (1) Matson  



                                                                                                  

referred appropriately to Co in the children's presence while Co was sarcastic when  



testifying about his relationship with Matson; (2) Matson was more interested in what  



                                                                                  

happened to the children while they were in Co's care than he was when the children  



were with Matson; and (3) Co told Matson to "mind her own business" when Matson  



sought a piece of medical information about one of the children.  



                                           

                    Co asserts that Judge Ashman erred in his consideration of this evidence.  



But 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  



                                                                                                           21 

                                                                                                               Given that  

of judging the credibility of witnesses and weighing conflicting evidence." 



                                                          

the superior court's finding was based upon Co's "responses to questions . . . [which]  



were sometimes sarcastic" and Co's demeanor on the stand, it would be inappropriate  



to substitute our judgment for that of the superior court.  



                            

                    Co's   argument   that   the   court   ignored   Matson's   own   inappropriate  



                 

comments and behavior is not persuasive in light of this deferential standard.  There is  



                                                                                                       

no showing that the superior court failed to consider Co's testimony or to give sufficient  



          20	      AS 25.24.150(c)(6).  



          21       Ebertz , 113 P.3d at 646 (internal quotation marks and citations omitted).  



                                                            -10-                                                          6846  


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

weight  to  the  evidence  he  presented.    In  fact,  the  trial  court  acknowledged  Co's  



                                                                                                                   

testimony by adding that it was "mindful that Mr. Co believes that Ms. Matson is overly  



                                                                               

inquisitive and perhaps even hyper-vigilant."  There is no indication that the superior  



court erred in finding that this factor favored Matson.    



                                                  

                    Co also alleges that it was clearly erroneous for the superior court  to find  



                                                                                                               

that Co "stated that [Matson] should have minded her own business" with regard to a  



                                                                                               

piece of medical information.  Both parties agree that the finding was derived from Co's  



                                                                 

testimony on re-cross examination.  Co was being questioned about his communication  



over Marina's whereabouts at a book fair:  



                    Q:       You  mentioned  the  book  fair  time  where  Spencer  

                                                

                             came  back  with  a  book  and  you  said  [Matson]  

                                                  

                             assumed that you had left Marina with somebody else?  



                   A:        Well, that's what she testified.  



                    Q:       Okay.  Did you tell her?  



                   A:        No.  



                                      

                    Q:       So if you don't tell her, what other option does she  

                             have but to assume?  



                   A:        She can keep her - she can mind her own business.  



The                                            

       questioning then changed focus to a medical incident involving Marina.  Matson  



concedes that Co's comment that  "she can mind her own business" was unrelated to any  



medical issue.  



                                                                   

                   Although the superior court was incorrect in describing the context of Co's  



                                                                    

"mind her own business" comment as relating to a piece of medical information, this fact  



                                                                               

was used to support the finding that Matson was more willing to communicate about the  



                                              

children than Co. The thrust of the finding remains unaltered despite the superior court's  



contextual  error.    The  superior  court  concluded  that  Matson  was  interested  in  the  



                                                                                                      

children's well-being when they were with Co and that Co withheld information from  



                                                            -11-                                                       6846
  


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

her.  In order to reverse a custody determination, "the entire record [must] demonstrate[]         



                                                                                                            22  

that  the  controlling  findings  of  fact  are  clearly   erroneous."                                            The  superior  court's  



mistake on this minor contextual point does not warrant reversal.  



                                            

                       Finally, in  his reply brief, Co argues for the first time that his sarcastic  



                                                                                                                                     

comments regarding Matson should not be considered because they were not made in the  



                                                                                                                      

presence of the children.  This point does not alter the fact that the record supports the  



superior court's finding.  The superior court did not err in considering Co's attitude on  



the stand in assessing his ability to foster effective communication between Matson and  



the children.  



                                                                                   

                                   b.	         The superior court did not err in finding that Co's use of  

                                               marijuana  limits  his  emotional  availability  and  could  

                                               affect the children's schedules.  



                       The eighth best-interests factor focuses on the role of parental substance  



                                                                                                                   

abuse and any "evidence that substance abuse by either parent or other members of the  

household directly affects the emotional or physical well-being of the child[ren]."23   Co  



argues  that  the  superior  court  erred  by  finding  that  Co's  regular  use  of  marijuana  



weighed against awarding him custody of the children.  



                                                  

                       Co admits that he smoked marijuana recreationally up to three times a week  



             

during his marriage and currently smokes "once or twice a week."  Matson testified that  



                                                                                                    

Co's drug use was "wildly disruptive" to their home life because Co stayed up late and  



                                                                         

was unavailable to help with the children.  Matson also alleged in an affidavit supporting  



                                                

her motion for custody that Co almost set fire to the house after smoking marijuana when  



                                                                                                                                  

he left a pan on the stove.  The superior court found that Co's regular use of marijuana  



                                                                                            

weighed against Co.  Co maintains that this finding was erroneous for several reasons.  



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



            23         AS 25.24.150(c)(8).  



                                                                        -12-                                                                       6846  


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

                    First, Co argues that there is no evidence that he violated a 2010 court order  

                                                                                      



forbidding him from smoking marijuana while the children are in his custody.  But the  

                                                                                                                      



superior court acknowledged that "Mr. Co continues to use marijuana but claims not to  

                                                                                                                         



do so when the children are around."  Thus, the superior court relied on the general  



presence and role of marijuana use in Co's life, rather than any allegation that Co was  



smoking in the presence of the children in violation of the court order.  



                                                                                     

                    Second, Co argues that there is no evidence that his marijuana use amounts  



to "substance abuse" that "directly affects the emotional or physical well-being of the  



                                                                              24  

                                                                                  But the trial court is required to  

child" as required by the eighth best-interests factor. 

consider all relevant factors,25  which may include whether the use of illicit substances  

                                                                                                        



generally affects the well-being of the children.  And it was reasonable to conclude that  

                                                                                         



Co's admitted marijuana use had an effect on the emotional well-being of the children  

         



in light of the evidence of how Co's marijuana use affected the children in the past.  In  

                                                       



combination  with  evidence  that  Co  continues  to  use  marijuana,  the  superior  court  



                                                                                              

concluded that it could not "control the effect that the presence of drugs in Mr. Co's life  



ultimately will have on the children."  The  superior court's finding that this factor favors  

Matson over Co was not clearly erroneous.26  



          24        AS 25.24.150(c)(8).  



          25        AS 25.24.150(c)(9).  



          26        Co also argues that the superior court's finding that "[r]egular use of drugs                    



is a choice that limits a parent's emotional availability to a child" conflicts with its earlier  

statement that "[e]ach parent is equally capable of meeting the children's emotional and  

                                                                       

social needs."  But these statements do not present an inherent conflict.  



                                                             -13-                                                        6846
  


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

                               c.	       The superior court did not err in finding that Matson's  

                                         focus  on  the  children's  schedules  weighed  in  favor  of  

                                                                                                                        

                                         awarding her custody.  



                     Analyzing  the  ninth  best-interests  factor  ("other  factors  that  the  court  

                                                                                       



                               27 

considers pertinent"   ), the superior court concluded that Co seemed more focused on his 

                                                                                                                              



own schedule, while Matson was more likely to arrange her schedule around the needs  

                                                                                        



of  the children.  Co argues that this finding was clearly erroneous because the superior  

                                                                            



court gave undue weight to Matson's testimony while ignoring his own.  But the trial  



                                                                                              

court had evidence before it that Co was not focused on the children's schedules.  The  



                                                                                                                    

superior court heard evidence that Co did not enforce bedtimes or keep a consistent  



                                                                                                                    

bedtime routine; that Co was late - and sometimes very late - in taking the children  



                                                                                                  

to school; and that Co often slept late and didn't take care of the children in the morning.  



                                      

                     Co argues that the superior court placed undue weight on his request for a  



                                                                                             

noon exchange of the children when it found that "Mr. Co demonstrated less concern  



                                         

about [arriving at school on time] and even in his custody proposal seeks a noontime  



                                                                                                       

exchange  so  that  his  morning  with  the  children  will  be  more  'relaxed.'  "    While  



admitting  that  he  sought  a  noon  exchange  on  Saturdays,  Co  argues  that  he  never  



                                                                                          

expressed a desire for a late exchange on school days. But when Co was asked about the  



                                                                                            

10:00 a.m. transition time on weekdays, he responded that the 10:00 a.m. time resulted  



                       

in "a rush out the door" and that "it might be better in the future just to sort of do all the  



                                                                                                                    

drop offs and pickups at noon." And the superior court concluded only that Co's request  



was indicative of a general reluctance to keep the children on a regular schedule.  



                                                    

                     Co also argues that the judge was "hyper-focused" on Co's admission that  



                                                                                                                           

he often brought Spencer to preschool 10 to15 minutes late and was sometimes an hour  



                                       

late.  Co argues that this is unimportant because "this was pre-school, not school."  But  



          27         AS 25.24.150(c)(9).  



                                                                -14-	                                                             6846  


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

Co's failure to bring the children to preschool on time was just one piece of evidence   



considered by the superior court in its decision.  We cannot conclude that the superior  



court weighed this fact inappropriately or that it erred by considering this evidence in  



reaching its decision.  



                     Finally, Co contends that Matson herself was habitually late to exchange  



                                                                                                          

the children.  But the superior court has considerable discretion to weigh conflicting  

evidence.28  The mere fact that the court credited Matson's testimony over Co's does not  



                                29 

                                                                                                                      

indicate a clear error.             There was ample evidence to support the finding that Co did not  



                                                              

keep the children on a consistent, stable schedule, and the superior court did not err with  



respect to this factor.  



                     2.        The court did not apply the "tender years" doctrine.  



                     The  tender  years  doctrine  is  the  presumption  that  "a  mother  of  young  



                                                                           

children will generally be given preference for custody if the other factors are evenly  



                30  

                                                    

balanced."          We have concluded that "the doctrine of tender years is not an appropriate  

criterion for determination of the best interests of the child" under Alaska law.31  



                                                                                                             

                     Co argues that the superior court erroneously relied on the tender years  



                              

doctrine  to  award  primary  physical  custody  to  Matson.    As  evidence,  Co  cites  the  



following passage from the superior court's decision:  



                                     

                     Given the young age of the children and the need for stability  

                     as they approach school age, the court finds that it is in the  



          28        Ebertz v. Ebertz , 113 P.3d 643, 647 (Alaska 2005).
  



          29        Id.
  



          30
       Johnson v. Johnson , 564 P.2d 71, 73 (Alaska 1977).  



          31        Id. at 75.  See also AS 25.20.060(b) (providing that "[n]either parent . . .  



is entitled to preference in the awarding of custody").  



                                                               -15-                                                          6846
  


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

                    children's  best  interests  that  Ms.  Matson  also  be  awarded  

                    primary physical custody.  



Co argues that the two reasons specified in this passage - the age of the children and  



                                                                                             

the need for stability - "are clearly within the definition of the 'tender years' doctrine."  



                                                                       

But nothing in the superior court's observation suggests that it  applied the tender years  



doctrine.  The tender years doctrine refers to a "mechanistic application" of a custody  



rule "that children of tender years will generally be awarded to the mother when other  



                                                    32  

                                                        In this case the factors were not evenly balanced.  

factors are fairly evenly balanced." 



                                                                        

                    Far from applying the mechanistic, bright-line approach of the tender years  



                                                                        

doctrine rejected in Johnson , the superior court expressly considered and balanced the  



                                                                

statutory  best-interests  factors.    And  Co  has  presented  no  evidence  to  support  any  



assertion that the superior court's order reflected gender bias. Indeed, the  superior court  



                 

found that Co was a capable parent possessing "considerable talent and ability."  It is true  



                                                                                                          

that  the  superior  court  ultimately  awarded  primary  physical  custody  to  Matson,  but  

"judicial bias should not be inferred merely from [an] adverse ruling[]."33  



                    3.	       The  superior  court  was  under  no  obligation  to  maintain the  

                        

                              interim custody agreement.  



                    In January 2010 the parties agreed to an interim shared custody schedule  

                                                                                 



in which Co's time with the children would gradually increase. Matson filed a motion  

                                                                                                



to modify this agreement, and although the court allowed Co to retain joint physical  

                 



custody, the original stair-step provision was eliminated until a further hearing could be  

                                



held.  Co argues that the superior court abused its discretion by reducing his time with  

                                                                                                



the children in its final custody determination and abruptly changing the status quo.  



          32        Johnson , 564 P.2d at 74 (citing               King v. King , 477 P.2d 356, 357 (Alaska  



1970)).  



          33        Tillmon v. Tillmon, 189 P.3d 1022, 1027 n.13 (Alaska 2008).  



                                                             -16-                                                           6846  


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

Additionally, Co argues that in light of the interim agreement it was clearly erroneous  



to find that the children resided primarily with Matson prior to trial.  



                    There is no clear support in our case law for a presumption favoring the  



                                                                                                           

maintenance of a pre-trial interim custody arrangement.   Indeed, in discussing  non- 



                                                                                        

custodial  visitation,  we  have  suggested  that  pre-trial  visitation  arrangements  are  

                                                                                           34  Here, the superior court  

                                                                                                

secondary to a consideration of the best interest of the child.  



complied with the statutory mandate to consider the best-interests factors.  No separate  

                                                                           



consideration of the terms of the interim custody agreement was necessary.  



                                                                                                          

                    Co also argues that the superior court erred in finding that the children  



                                                               

resided primarily with Matson while the interim custody agreement was in place.  The  



superior  court,  however,  used  this  finding  in  assessing  only  the  fifth  best-interests  



          35  

                                                                                                 

factor,      which it determined favored neither parent. Thus, even if it was  erroneous, this  



finding did not affect the ultimate outcome of the trial.   



                                                                                

          C.	       The  Visitation  Schedule  Ordered   By  The  Superior  Court  Was  

                    Reasonable And Was Not An Abuse Of Discretion.  



                                                                      

                    The superior court awarded Co physical custody of the children on most  



                                                                                           

weekends and one day a week.  Co argues that the superior court erred by granting him  



visitation with the children on Saturday nights, when he works as a DJ.  



                    The superior court specifically found that Co had trouble with weekday  



schedules and getting the children to school on time.  As discussed above, the finding  



                        

with respect to Co's ability to observe the children's schedule was not clearly erroneous.  



          34        See Morino v. Swayman, 970 P.2d 426, 429 (Alaska 1999) (discussing the     



availability of an evidentiary hearing to modify visitation in light of de facto changes  

agreed to by the parents).  



          35  

                                                                                                 

                    "[T]he  length  of  time  the  child  has  lived   in   a   stable,  satisfactory  

environment and the desirability of maintaining continuity." AS 25.24.150(c)(5).  



                                                              -17-	                                                        6846
  


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

Thus, it was not an abuse of discretion to determine that weekend custody for Co was in                     



the best interest of the children, despite Co's Saturday late-night work schedule.  



                   Co  also  argues  that  his  proffered  literature  about  shared  custody  was  



                                                     

ignored and that the superior court should have incorporated an automatic increase in  



                                                                                                  

custody time when the children reach kindergarten age, based upon the approval of such  



                                                                                                            

agreements  by  this  court  in  the  past.    But  a  trial  judge  has  substantial  discretion  in  



                                                     36  

implementing  a  visitation  schedule.                     There  is  no  indication  that  the  superior  court  



                                                                                

improperly  weighed  any  evidence,  and  the  detailed  visitation  schedule  it  crafted  in  



                                                                                               

response to specific evidence in the record about the children's schedules and routine  



was well within its broad discretion.  



V.        CONCLUSION  



                   The superior court's custody decision is AFFIRMED in all respects.  



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



                                                            -18-                                                          6846  

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