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Matthew v. Gail S. (8/28/2015) sp-7037

                                                    NOTICE  

         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,  

                                                                     

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                   THE SUPREME COURT OF THE STATE OF ALASKA  



MATTHEW P.,                                           )  

                                                      )        Supreme Court No. S-15735  

                           Appellant,                 )  

                                                      )        Superior Court No. 1JU-10-00843 CI  

         v.                                           )  

                                                      )        O P I N I O N  

GAIL S.,                                              )                

                                                      )        No. 7037 - August 28, 2015  

                           Appellee.                  )  



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

                                                                                   

                  Judicial District, Juneau, Louis J. Menendez, Judge.
  



                  Appearances: Anthony M. Sholty, Faulkner Banfield, P.C.,
  

                                                                                

                  Juneau, for Appellant.   Notice of nonparticipation filed by
  

                  Paul H. Grant, Juneau, for Appellee.  
 



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

                                                                      

                  Bolger, Justices. 
 



                  BOLGER, Justice.
  

                  FABE, Chief Justice, with whom MAASSEN, Justice, joins
  

                  dissenting in part.
  



I.       INTRODUCTION  



                  Following their separation two parents initially shared physical custody of  

                                                                        



their daughter.  But after a domestic violence incident, the superior court awarded the  

                                                                                             



mother sole legal and primary physical custody, while allowing the father telephone calls  

                                                                         



and supervised visitation. The father subsequently filed a motion to modify custody,  


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

                                                                            

seeking  a  return  to  equal  physical  custody.    The  superior  court  denied  this  request,  



                                                                              

concluding that the daughter's emotional needs and the father's unwillingness to foster  



a strong relationship between the mother and daughter supported the continuation of  



supervised  visitation.    Because  the  superior  court  did  not  abuse  its  discretion  in  



                                                                                                

considering the child's best interests, and because it articulated a plan through which the  



father could achieve unsupervised visitation, we affirm.   



II.       FACTS AND PROCEEDINGS  



                                                      1 

                                                        were married and had one child together, Valerie,  

                    Matthew P. and Gail S. 



                                                            

born in 2002. The couple separated in August 2011, and pursuant to a joint custody  



                                                                                                        

agreement the parents had joint legal custody of Valerie and shared physical custody  



under a "week-on/week-off" arrangement.  



                                                          

                    In March 2012 Matthew broke the windshield of Gail's car with his fist,  



                 

which the superior court found to be an incident of domestic violence. Gail moved to  



                                                                                                                     

modify custody, and after an evidentiary hearing the superior court concluded it was in  



                

Valerie's best interests that Gail be awarded sole legal and primary physical custody.  



                                                                                        

The court required Matthew's visitation with Valerie to be supervised, but allowed him  



                                                                                 

to have unmonitored phone calls with her.  The court expressly ordered that "[n]either  



                                              

parent shall make disparaging comments about the other parent" during phone calls with  



Valerie.  



                                              

                    Matthew moved  to modify custody in March 2014, seeking a return to  

                                    2   He argued that his completion of an intervention program for  

shared physical custody.    



batterers constituted a material change in circumstances and alleged that Valerie had  

                                                                                             



          1         We use pseudonyms for all family members.  



          2         Matthew had also filed an earlier motion to modify custody in April 2013,   



which the superior court denied.  The disposition of this motion is not on appeal.  



                                                              -2-                                                        7037
  


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

"been experiencing significant behavioral problems in school" and was "troubled in her  

                                                                                                     



current situation."  The superior court held an evidentiary hearing in October 2014, at  



                                                                        

which both parties were represented.  The court found that no substantial change in  



                      

circumstances had occurred justifying a change to Valerie's custodial status, and Gail  



              

retained  sole legal and primary physical custody of Valerie.  Nonetheless, the court  



                                                                                 3  

proceeded to consider the statutory best-interests factors.   



                   The superior court concluded that tightening the restrictions on Matthew's  



interactions with Valerie was in her best interests.  The court ordered that phone calls  

                                                                                         



between Matthew and Valerie be limited to one call per day, not to exceed 10 minutes  



                                                                                                         

in  length,  on  days  when  Matthew  did  not  have  visitation.    The  court  granted  Gail  



permission  to  monitor  these  calls  so  long  as  she  did  not  tape-record,  memorialize,  



"negatively  impact,"  or  "unnecessarily  intrude"  on  Valerie's  conversations  with  



Matthew.  Finally the court ordered Matthew to "obtain a full and complete independent  



psychological evaluation by a licensed clinical psychologist."  



                                                                                                           4  

                   Matthew appeals this order, seeking a return to equal custody.   



III.      STANDARD OF REVIEW  

                   "The [superior] court has broad discretion in child custody decisions."5  



"We  will  reverse  the  superior  court's  decision  when  'the  record  shows  an  abuse  of  



         3         See  AS  25.24.150(c)  (requiring  the  court  to  "determine  custody  in  



accordance with the best interests of the child" and providing nine factors the court must  

                                                    

consider).  



         4         Gail did not participate in the appeal.  



         5         Frackman v. Enzor , 327 P.3d 878, 882 (Alaska 2014) (quoting Veselsky v.  



Veselsky, 113 P.3d 629, 632 (Alaska 2005)) (internal quotation marks omitted).  



                                                           -3-                                                     7037
  


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

                                                                                                          6  

discretion  or  if  controlling  factual  findings  are  clearly  erroneous.'  "     "An  abuse  of  



                                                                                                    

discretion exists where the superior court 'considered improper factors in making its  



custody  determination,  failed  to  consider  statutorily  mandated  factors,  or  assigned  



                                                                                                      7 

                                                                                                         "A factual finding  

disproportionate weight to particular factors while ignoring others.' " 



                                                          

is clearly erroneous when a review of the record leaves the court with a definite and firm  

conviction that the superior court has made a mistake."8  



IV.       DISCUSSION  



                                                                                                             

                    As an initial matter, Matthew argues that the superior court erred by finding  



"that there [had] not been a significant change of circumstances which would justify a  



                                                                

review or change of [Valerie's] custodial status."  It is indeed true that "modification of  



                                                                                                                                  9  

                                                                                                       

custody requires a showing that there has been a substantial change in circumstances." 



                                                                                               

But such a change is merely a threshold requirement, and the superior court must still  

consider the ultimate question of the child's best interests before modifying custody.10  



Here, despite finding no substantial change in circumstances, the court nevertheless  



analyzed the statutory best-interests factors.  The court ultimately concluded that the  



                                                                                                            

requested change in custody was not in Valerie's best interests, so it is unnecessary for  



          6         Id. (quoting J.F.E. v. J.A.S. , 930 P.2d 409, 411 (Alaska 1996)).  



          7         Id . (quoting Siekawitch v. Siekawitch, 956 P.2d 44                          7,  449 (Alaska 1998)).  



          8         Id.  (quoting  Fardig  v.  Fardig ,  56  P.3d  9,  11  (Alaska  2002))  (internal  



quotation marks omitted).  



          9  

                                                                               

                    Bagby   v.   Bagby ,   250   P.3d   1127,   1129   (Alaska   2011);   see   also  

AS 25.20.110(a).  



          10  

                                                     

                    See AS 25.20.110(a) ("An award of custody of a child or visitation with the  

                                                                                         

                                      

child may be modified if the court determines that a change in circumstances requires the  

                          

modification of the award  and the modification is in the best interests of the child."  

(emphasis added)).  



                                                               -4-                                                         7037
  


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

                                                                               

us to determine whether there was a substantial change in circumstances.  The dispositive  



issue was Valerie's best interests - not the alleged change in circumstances.  



                                                                                

          A.	       The Superior Court Did Not Abuse Its Discretion By Concluding That  

                    Shared Physical Custody Was Not In Valerie's Best Interests.  



                                                                                                         

                    "The court shall determine custody in accordance with the best interests of  



                                                                                                                   11  

                                                                                                                       Here  

the child," taking into account the statutory factors detailed in AS 25.24.150(c). 



the superior court addressed each of the statutory factors, but it focused primarily on  



Valerie's  emotional  needs  and  each  parent's  respective  willingness  and  ability  to  



                                                  

facilitate a close and continuing  relationship between Valerie and the other parent.  



Matthew's appeal likewise focuses on these two factors.  



                    1.	      Valerie's emotional needs  



                    The  superior  court  found  that  Matthew  was  neglectful  of  Valerie's  



                           

emotional needs. The court was particularly concerned about statements Matthew made  



                          

to  Valerie  about  Gail  and  the  custody  dispute  and  the  effect  of  these  statements  on  



                                             12  

                                                                  

Valerie's "emotional welfare."                   The court also credited the testimony of Dr. Joanne  



Solchany, an expert on child psychology and parental alienation.  



                   Based on an in-person psychological evaluation, Dr. Solchany diagnosed  



Valerie with traumatic stress disorder, which she described as occurring when a person  



is "exposed to an actual or . . . threatened trauma."  Dr. Solchany opined that for Valerie,  



          11	      AS 25.24.150(c).  



          12        The court highlighted a text message that Matthew appears to have sent  



Valerie in August 2013 that read, "[Valerie], [I] was driving home when you called and  

                                                                             

couldn[']t answer the phone.  I don[']t like the message you left me.  It shows exactly  

                                                                                          

what a negative influence your mother has on you.  I don[']t need [a] message like that."  

                                                                             

As  the  judge  noted,  the  court  had  already  issued  an  order  expressly  prohibiting  the  

parties  from  disparaging  the  other  parent.    Matthew  does  not  mention  this  issue  on  

                                                                                              

appeal.  



                                                             -5-	                                                      7037
  


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

this trauma was her parents' conflict, which caused an incongruence between Valerie's  

                                                          



perceptions and reality.  Dr. Solchany also thought Valerie was at risk for borderline  



personality disorder.  



                    Dr.  Solchany  expressed  concern  that  Valerie  "idolized  her  dad"  and  



"villainized" her mother.  Dr. Solchany testified that Valerie "sees her mom as the bad     



guy" and   "that's mostly because that's what Dad tells her in one way or another."  



According to Dr. Solchany, Valerie blamed Gail for the broken windshield incident;  



                                                                                                                    

Valerie told Dr. Solchany that "it was her mom who caused the problem, that her dad just  



                                                                                                         

did everything accidentally[,] and [that] her mom threw her dad in jail."  But besides  



                                       

generally characterizing her mother as "mean" and not giving her what she wanted,  



                            

Valerie could not articulate specific examples of Gail's behavior that were objectionable.  



                                                                                                           

And  notably,  Dr.  Solchany  reported,  when  Valerie  returned  to  the  waiting  room  to  



reunite      with   Gail   after   the           evaluation,         Valerie       "was      extremely   affectionate."  



                                                                                    

Dr. Solchany characterized Valerie's statements about and behavior toward Gail as "red  



flags."  



                    Accordingly, Dr. Solchany recommended against a return to split physical  



                                                                                                             

custody, stating that such an arrangement would be "extremely difficult, if not damaging,  



to [Valerie]."  Dr. Solchany also suggested that text messaging between Matthew and  



                                                                              

Valerie be monitored and that the court place time and length limitations on their phone  



                                                                                                  

calls.  Dr. Solchany testified that overly long phone calls create the danger that a parent  



will use his or her child "as a peer."  



                                                             

                    Matthew takes issue with the superior court's reliance on Dr. Solchany's  



testimony.  He asserts that Dr. Solchany's failure to observe his interactions with Valerie  



                        

casts doubt on the credibility of her opinions and recommendations, claiming that such  



observation was an integral part of her stated protocol.  But Dr. Solchany never stated  



                                                                                                          

that  such  observation  was  necessary  for  her  to  reach  an  informed  assessment.    The  



                                                                -6-                                                         7037
  


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

statement Matthew cites indicated that her typical protocol "includes meeting with the  



                                             

child, each parent, and then observ[ing] . . . each parent-child dyad or the family, as the  



                                                                                                      

situation calls for ." (Emphasis added.) And she repeated during cross-examination that  



her protocol depended on the situation.  



                     Moreover, Dr. Solchany was not concerned about the strength of the bond  



               

between Matthew and Valerie but about Matthew's statements to Valerie about Gail.  



                                                                                                       

And to the extent that Matthew spoke inappropriately about Gail or otherwise involved  



Valerie  in  the  custody  dispute,  it  seems  unlikely  that  he  would  have  made  such  



                                                                              

comments in the presence of a third party such as Dr. Solchany.  As a result, we see little  



relevance  in  Dr.  Solchany's  failure  to  personally  observe  Matthew  and  Valerie's  



interactions.  



                                                                                                           

                     Matthew also faults the superior court for crediting the testimony of Sylvia  



Kidd,  a licensed professional counselor who provided therapy to Valerie "off and on  



                      

since 2010."  Kidd recommended against returning to split physical custody, suggesting  



                                                                                 

that  the  court  maintain  supervised  visitation  and  allow  monitoring  of  Matthew  and  



                                                                         

Valerie's  phone  calls  and  text  messages.                             Matthew  appears  to  argue  that  Kidd  



                                                                                                   

demonstrated bias against him by previously testifying that she had taken precautions for  



her  safety  out  of  concern  about  Matthew's  potential  reaction  to  court-imposed  



                                                   

restrictions on his custody. But Kidd explained in her testimony that she "encounter[ed]  



                                                                                                       

a lot of people who . . . could possibly be a threat to [her]" in her professional capacity,  



                                                                                 

and that these precautions did not demonstrate bias against Matthew.  Matthew presents  



                                                                                                         

no further evidence of Kidd's alleged bias, and in any event, "[i]t is the function of the  

trial court, not of this court, to judge witnesses' credibility . . . ."13  



           13        James R. v. Kylie R.            , 320 P.3d 273, 279 (Alaska 2014) (quoting                            Williams  



v. Barbee , 243 P.3d 995, 1000 (Alaska 2010)) (internal quotation marks omitted).  



                                                                  -7-                                                                7037  


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

                                                                                                    

                    In addition to criticizing the superior court's reliance on the testimony of  



Dr. Solchany and Kidd, Matthew presents a number of other arguments regarding the  



                                                                                     

superior court's analysis of Valerie's emotional needs.   None compels a decision in  



Matthew's favor.   



                             

                    First  Matthew  asserts  that  the  court  ignored  favorable  testimony  about  



Matthew's interactions with Valerie from witnesses with "first-hand knowledge of [their]  



                                                                                                           

relationship."  He points out that three individuals who supervised his visitation with  



Valerie all praised Matthew's parenting skills and testified that he never made negative  



comments about Gail in Valerie's presence.  But by Matthew's  own admission, the  



visitation supervisors were his personal friends, and it was within the superior court's  



                                                                       14  

                                                                                                     

discretion  to  weigh  each  witness's  credibility.                         Moreover,  even  assuming  that  the  



visitation  supervisors  testified  accurately  about  their  observations  of  Matthew  and  



                                                                            

Valerie's interactions, the court could reasonably have concluded that Matthew made  



negative  comments  about  Gail  to  Valerie  in  private  telephone  conversations  or  text  



               15  

messages. 



          14        Id. ("It is the function of the trial court, not of this court, to judge witnesses'     



credibility and to weigh conflicting evidence.").  On appeal Matthew takes issue with a  

statement made by the guardian ad litem (GAL) in cross-examining one of the visitation   

supervisors.  According to the GAL, this supervisor had previously relayed to her an  

incident in which "[Valerie] began to tell [Matthew] something she had done with her  

                                                                                

mother[,] and [Matthew] cut her off stating that he didn't want to hear her talk about her  

                                                                                                        

mother on his time."  Matthew contends that this was a misstatement and that he was  

                                                                                  

merely  cutting  off  Valerie's  negative  comments  about  her  mother.    But  it  was  the  

superior court's role to evaluate the witness's credibility in light of the GAL's questions  

                                                                    

during cross-examination.  



          15        Under the terms of the prior court order, Matthew's telephone conversations  



with Valerie were unmonitored, and according to Gail, Valerie would sometimes delete  

her text messages.   



                                                              -8-                                                        7037
  


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

                                                                                                                           

                    Next Matthew  claims  the  superior  court gave  insufficient weight to  an  



                       

affidavit from Rachel Woods, a licensed clinical social worker who provided Valerie  



with  family  and  group  therapy.    Woods  attested  that,  based  on  her  observations  of  



                                   

Valerie and Matthew, there was no need for visitation to be supervised, and she opined  



                                

that the supervision requirement had harmed Valerie by making her "more resistant to  



                      

talking about painful feelings [and] very restrained about what she shares concerning  



sadness  and  anger."    But  Matthew  did  not  call  Woods  to  testify  at  the  evidentiary  



                                                                      

hearing.  And even if Woods had testified, the superior court would have had discretion  



                                                                                                                                16  

                                                                             

to weigh her opinion against the conflicting expert testimony offered by Dr. Solchany. 



                    Matthew likewise claims that the court gave inadequate consideration to the  



custody investigator's report, which recommended that Matthew and Gail share physical  



                                                                                          

custody of Valerie under a "week on week off schedule."  But as we have previously  



                  

explained,   "custody   investigators   are   simply   expert   witnesses   and   .   .   .   their  



recommendations should be evaluated on a case-by-case basis, in the same manner as  



                                                                      17  

                                                                                              

testimony         presented        by     other      witnesses."              "Because         custody       investigators'  



                                                                                         

recommendations are granted no particular deference, trial courts are free to reject those  



                                                                                                                      18 

                                                                                                                          It was  

opinions provided that 'the evidence as a whole supports the court's decision.' " 



within the superior court's discretion to reject the custody investigator's recommendation  



in light of Dr. Solchany's expert testimony.  



          16        See  Ebertz v. Ebertz , 113 P.3d 643, 647 n.13 (Alaska 2005) ("The weight  



to be given to expert testimony is within the province of the trier of fact." (alteration  

omitted) (quoting State v. Phillips, 470 P.2d 266, 272 (Alaska 1970)) (internal quotation  

                                                     

marks omitted)).  



          17        Id. at 647.  



          18  

                                                                                       

                    Chesser v. Chesser-Witmer, 178 P.3d 1154, 1159 (Alaska 2008) (quoting  

Ebertz , 113 P.3d at 648).  



                                                               -9-                                                         7037
  


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

                                                                                       

                   Finally Matthew argues that Valerie's mental health issues arose after the  



                                                                                                        

imposition  of  supervised  visitation  and  were  caused  by  his  "sudden  removal"  from  



                                                                                                

Valerie's life.  But besides his own testimony, Matthew offered no other evidence for this  



                                                                                              

claim, and Dr. Solchany's expert testimony directly rebutted it.  Although Dr. Solchany  



admitted  that  she  did  not  know  exactly  when  Valerie's  mental  health  problems  



developed, Dr. Solchany testified that the institution of supervised visitation "would not  



have that kind of an impact on a child" unless the visitation supervisor was "terrible."  



                   For these reasons, the superior court's evaluation of Valerie's emotional  



needs was not an abuse of discretion.  



                   2.	       Each  parent's  respective  willingness  to  allow  a  "close  and  

                             continuing" relationship between Valerie and the other parent  



                    The  superior  court  found  that  an  additional  factor  also  favored  Gail's  



                                           

continued primary custody:  "the willingness and ability of each parent to facilitate and  

encourage a close and continuing relationship between the other parent and the child."19  



                                                                           

The court observed that Gail "recognizes the need that [Valerie] . . . have contact with  



                                                                                                              

her  dad"  and  would  take  steps  to  ensure  that  happened.    But  the  court  found  "the  

                                                                                                                    20  The  

contrary" was true for Matthew, citing his August 2013 text message to Valerie. 



court also noted Kidd's testimony that one of the parents had told Valerie about the court  

                                                                  



proceedings, and reasoned that based on the way the statement was delivered, it was  



                                                   21  

more likely to have been Matthew.                       



          19       See AS 25.24.150(c)(6).  



          20       See supra note 12.  



          21       According to Kidd, "[Valerie]  said she  should be  able  to use her cell phone  



whenever she wants because her dad said the judge said that [her] mother can't ever take       

                                                                           

her phone away . . . ."  



                                                            -10-	                                                      7037
  


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

                    Matthew argues that this factor favored a return to shared physical custody,  



                                                               

claiming that Gail had failed to encourage a relationship between him and Valerie.  For  



                              

instance,  Matthew   alleges  that  Gail  monitored  Valerie's  phone  calls  with  him,  



                                                                    

confiscated Valerie's phone, and "refus[ed] to let [Valerie] call her father."  But the only  



support for these allegations in the record is Matthew's own testimony, and in light of  



such scant evidence, the superior court could reasonably have discounted this claim.  



                                                                                  

                    Matthew also notes that Gail replaced the locks on her home after Valerie  



                                                                                                         

accidentally took Gail's keys to Matthew's home on a supervised visit.  Gail confirmed  



                                                                                                                   

this, explaining that she changed the locks to protect herself.  But the superior court did  



                                                                                       

not abuse its discretion by concluding that the evidence of Matthew's communications  



                                            

to Valerie about her mother and the court proceedings outweighed Gail's conduct in  



                                       

response to this incident.  Given Matthew's past incidence of domestic violence, it was  



not unreasonable to give little weight to the change in locks.  



                             

                    After  evaluating  the  record,  we  conclude  that  the  superior  court's  



assessment  of  each  parent's  respective  willingness  to  foster  a  relationship  between  



                                                                       

Valerie  and  the  other  parent  was  reasonable.    The  superior  court  did  not  abuse  its  



discretion  by  determining  that  a  return  to  shared  custody  was  not  in  Valerie's  best  



interests.  



          B.	       The Superior Court Adequately Articulated A Plan Through Which  

                    Matthew Could Achieve Unsupervised Visitation.  



                                                                                                           

                    We  have  previously  indicated  that  "absent  a  compelling  reason  to  the  



contrary that is supported by the record, the court must establish a plan or criteria for  

                                                      22   Matthew argues that the superior court erred by  

ending the supervision requirement."                                                                        



failing  to  establish  such  a  plan.    We  disagree.    The  superior  court  fulfilled  this  



          22        Yelena R. v. George R., 326 P.3d 989, 1003 (Alaska 2014).  



                                                            -11-                                                           7037  


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

requirement by outlining three conditions that need to occur before  the court would  

                                                                                                       



consider unsupervised visitation:  (1) that Matthew "engage[] with a therapist and show[]  

                                                                                                



[the court] . . . that in fact he . . . is getting or has gotten better"; (2) that there be no  

                   



further reports of Matthew conveying "negative information" about Gail to Valerie; and  

            



(3) that supervised visitation in fact occur.   



                   Matthew argues that this plan was "vague at best."  Specifically he contends  



that because he has never received a mental health diagnosis, it is unclear what must be  

                                                                                                            



resolved through therapy.  But in its written order, the court explicitly required Matthew  



to  "obtain  a  full  and  complete  independent  psychological  evaluation   by  a  licensed  



clinical psychologist."   



                   In  her  dissent,  Chief  Justice  Fabe  observes  that  the  superior  court's  



instructions that Matthew obtain a psychological evaluation and show that he "has gotten  



                                                                            

better" lacks clear benchmarks.  It may be true that the superior court could have been  



more precise in articulating what it expected  Matthew to do in order to remove the  



                    

requirement for supervised visitation, but a solution to this problem is for Matthew to  



actually obtain a psychological assessment, and if the psychologist is unclear about what  



                                                               

issues the court wants addressed, Matthew should move the court for clarification.  And,  



of  course,  if  the  assessment  reveals  Matthew  has  no  mental  health  issues  requiring  



                                                      

treatment  or  counseling,  then   -   assuming  he  complies  with  the  court's  other  



requirements - he can move the court for unsupervised visitation.  



                                                                                            

                   Matthew also claims the court ordered him to do "whatever he can to see  



his daughter" - a requirement he finds unreasonable because prior visitation supervisors  



                                                                                                                   

are no longer available.  But Matthew misconstrues the court's instruction.  The court did  



not order Matthew to take advantage of each available window for supervised visitation.  



Instead,  the  court  merely  expressed  concern  that  Matthew  "ha[d]  not  had  visitation  



                                                                                                              

[during the] six weeks" leading up to the custody hearing and instructed Matthew to  



                                                            -12-                                                       7037
  


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

resume  visitation.    Furthermore,  a  parent's  difficulty  in  arranging  for  visitation  



                                                                                  

supervisors would not compel a superior court to lift a supervision requirement, as the  

best interests of the child may nonetheless justify such a condition.23  



                    Finally Matthew asserts that any reports of him giving Valerie "negative  



                              

information" about her mother will merely be third-parties' interpretations of Valerie's  



                                                                      

own  comments.    While  this  may  be  true,  it  would  be  within  the  superior  court's  



                 

discretion  to  weigh  this  evidence  as  part  of  a  subsequent  custody  modification  

proceeding.24  



                    For  these  reasons,  we  conclude  that  the  superior  court  adequately  



articulated a plan through which Matthew could achieve unsupervised visitation.  



V.        CONCLUSION  



                                                                                               

                    We  AFFIRM  the  superior  court's  order  denying  Matthew's  motion  to  



modify custody.  



          23        See,  e.g., Fardig  v.  Fardig ,  56  P.3d  9,  14  (Alaska  2002)  (upholding  a  



superior court's decision to order supervised visitation as supported by evidence in the  

                                                  

record, including testimony regarding the children's best interests); see also Limeres v.  

                                                              

Limeres , 320 P.3d 291, 300 (Alaska 2014) ("An order requiring supervised visitation  

'must be supported by findings that specify how unsupervised visitation will adversely  

                                                                                            

affect' the child's best interests." (quoting J.F.E. v. J.A.S., 930 P.2d 409, 413-14 (Alaska  

                           

 1996))).  



          24  

                                                                     

                    See Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) ("The trial court  

has broad discretion in child custody decisions." (quoting Veselsky v. Veselsky, 113 P.3d  

629, 632 (Alaska 2005)) (internal quotation marks omitted)); Knutson v. Knutson, 973  

               

P.2d 596, 599-600 (Alaska 1999) ("It is the function of the trial court, not of this court,  

                                                                                       

to judge witnesses' credibility and to weigh conflicting evidence.").  



                                                            -13-                                                       7037
  


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

FABE, Chief Justice, with whom MAASSEN, Justice, joins, dissenting in part.  



                   We have long held that it is "the norm" for a parent to have unrestricted,  



                                               1  

unsupervised visits with his child.   Only last year we held that even where supervised  



                                                                                              

visitation is temporarily required, "absent a compelling reason to the contrary that is  



supported  by  the  record,  the  court  must  establish  a  plan  or  criteria  for  ending  the  



                                    2  

                                       But for almost two and one-half years, Matthew P. has only  

supervision requirement." 



been  able  to  visit  his  daughter  Valerie  if  they  are  accompanied  by  a  supervisor  



                                                                                                                       3  

                                                                                   

"acceptable to both parties," which has interfered with and reduced his parenting time. 



And because the superior court has never identified any benchmarks by which Matthew  



          

might achieve unsupervised visits, there is no end in sight.  In my view, the superior  



court's failure to establish a concrete "plan by which unsupervised visitation can be  

achieved"4 amounts to an abuse of discretion.  



                   Our cases demonstrate that courts can only deviate from establishing a  



concrete plan by which a parent can achieve unsupervised visits for truly compelling  



                                                                              5  

reasons.  Last year's decision in  Yelena R. v. George R.  proves the point.  There, we  



held that the superior court abused its discretion when it did not provide a plan toward  



unsupervised visits for a mother even after she improperly removed the children from  



         1        J.F.E. v. J.A.S. , 930 P.2d 409, 409 (Alaska 1996).  



         2         Yelena R. v. George R., 326 P.3d 989, 1003 (Alaska 2014).  



         3         Matthew  testified  that  he  has  had  difficulty  identifying  a  consistently  



available supervisor since Gail  removed Valerie from the Catholic Community Services  

program, and as a res        ult  he has not been      able to see Valerie as often as the visitation plan  

anticipates.  



         4        Rodvik v. Rodvik , 151 P.3d 338, 345 (Alaska 2006) (quoting Fardig v.  



Fardig , 56 P.3d 9, 14-15 (Alaska 2002)).  



         5         326 P.3d 989 (Alaska 2014).  



                                                         -14-                                                    7037
  


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

                                                               6  

             

Alaska and took them to Massachusetts.   If it was an abuse of discretion not to create  



                                                                   

a plan for unsupervised visits for a mother who improperly took her children across the  



                                               

continent, it was all the more so an abuse of discretion not to create a plan here, where  



                                                                                                                                     7  

                                                                                               

the superior court's dissatisfaction with Matthew's parenting was much more nebulous. 



                     A survey of our prior cases indicates that trial judges have accompanied the  

                                                      



requirement of supervised visitation with concrete plans for achieving unsupervised  



                                                                           

visits for parents who have displayed behavior much more troubling than Matthew's.  



                               

We have approved a superior court's plan toward unsupervised visits for a father who  



"was  verbally  abusive,  drank  heavily,  struck  the  children,"  assaulted  his  wife,  and  



                                                        

"refused to return the children after his visitations on multiple occasions"; the plan was  



                                                                   

based on "the findings of [a psychological] evaluation and [the parent's] follow-through  



                                          8  

on any recommendations."   We have also approved a plan for achieving unsupervised  



visits for a mother who refused to enter addiction treatment and whose daughter testified  

                                                                                            



that she used drugs, noting that such a plan "provided [the mother] with a means for  

                                                                       



regaining unsupervised and summer visitation of [her daughter] should she wish to do  

                                                                                     



so"; the plan required that the mother complete "a rigorous clinical assessment showing  

                                                           



                                       9  

she was clean and sober."   And even when we did not initially require "a specific plan"  

              



          6          See id. at 1000, 1002-03.  



          7          The superior court faulted Matthew for being "very self-contained," a trait  



the court worried Valerie "thinks she should be portraying."  The superior court was also  

"convinced that [Matthew was] giving [Valerie] information he shouldn't be giving her"  

                                                                                                                  

and "somehow offering negative information about her mother to her."  And the court  

believed that the relationship between Matthew and Valerie was "not healthy" because  

                                                                                                             

"she sees herself as a care giver for her father."  



          8          Rodvik , 151 P.3d at 341, 345.  



          9          Fardig , 56 P.3d at 15.  



                                                                -15-                                                          7037
  


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

toward regaining unsupervised visits for a mother with a "history of secreting away her  



                                                                         

daughter from [the daughter's father], as well as . . .  not telling [the father] exactly where  

the child was here in Alaska for a period of time,"10 we directed that when she had  



                                                                                                         

participated in counseling and classes to eliminate her risk of harming or abducting her  



                                   

child, "she [could] ask the court to revisit the requirement of supervision and to create  

a plan for eventually eliminating that restriction."11  



                                                                                                            

                    Here, Matthew has not exhibited any behavior as extreme as the parents  



                                     

above who received the benefit of a concrete plan toward unsupervised visits.  There is  



                                                

no evidence that Matthew  has  a problem with substance abuse.  The superior court  



acknowledged  that  Matthew  had  completed  a  state-certified  batterer  intervention  



program after breaking Gail's car window when she was not in the vehicle.  And no  



                                                                                                

party has alleged that Matthew poses a flight or abduction risk.  Yet unlike in our prior  



                                                                                 

cases, the superior court has not told Matthew what he must do to gain the ability to visit  



his daughter without a supervisor.  



                    Contrary to the court's reading, the superior court did not identify a specific  



plan by which Matthew could move to unsupervised visits - a conundrum which has  



                                                      

existed for nearly two and one-half years.  The superior court's written order did direct  



Matthew  to  "obtain  a  full  and  complete  independent  psychological  evaluation  by  a  



licensed  clinical  psychologist,"  but  it  did  not  indicate  any  connection  between  



                         

completing that requirement and a change in the visitation order.  Similarly, the superior  



                                                    

court referenced the possibility of reconsideration if "there are no longer any reports of  



                                                                                                    

negative information that flow[s] from [Matthew to Valerie]," but it did not explain how  



          10        Monette  v.  Hoff ,  958  P.2d  434,  436  (Alaska   1998)   (first  alteration  in  



original).  



          11        Id. at 437.  



                                                             -16-                                                        7037
  


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

Matthew can meet this goal, given that the last such "report" was more than a year  

                                                                                                                



earlier.  The superior court's spoken directions were vague and explicitly couched in the  

                                                                                       



language of "encouragement":  the superior court noted that it "encouraged [Matthew]  

                                                                           



to enter and engage in therapy," and "to engage in visitation with his daughter, and take  

                                                                                                                     



every minute that he can that's available to him with his daughter," but it specified that  



                                                                                                            

it was "not going to direct him doing it, I'm going to encourage him to do that."  The  



                                                                                                     

superior court also suggested that if Matthew could demonstrate that he "is getting or has  



                                                                                                      

gotten better" then "perhaps  the  [superior] court will take  a  look  at  it."    (Emphasis  



                                                         

added.)  Yet there is no evidence  in  the record that Matthew has any psychological  



                                                                                                            12  

                                                                                                                This is not  

difficulties, so it is unclear what he must address in order to "get better." 

a "plan by which unsupervised visitation can be achieved."13  

                                                                                             



                    The  simple  fact  is  that  nobody  -  not  this  court,  not  Gail,  and  most  



importantly  not  Matthew  -  knows  what  Matthew  needs  to  do  to  move  toward  

                   



unsupervised visitation with Valerie.  Indeed, the superior court's remarks that "a single  

                                                                                                              



parent can raise a child  just as well as two parents" and that "sometimes that has to  

                                                 



happen for the betterment of the child" suggests that the superior court is comfortable  

                                                            



with Matthew  never achieving unsupervised visitation, in direct contradiction of our  

caselaw.14  



          12        The  one  trained  therapist  who  had  personally  observed  Matthew  and  



Valerie  together  testified  by  affidavit  that  "their  interactions  are  very  healthy,"  that  

"[t]hey have very good communication with each other," and that Matthew was not "an  

                                                                                                                       

'alienating parent.' "  This expert also recommended that Matthew be allowed to visit  

Valerie  without  supervision  and  believed  that  "the  supervision  has  been  harmful  to  

[Valerie]."  



          13        Rodvik , 151 P.3d at 345 (quoting Fardig , 56 P.3d at 14-15).  



          14        The superior court's comparison of this situation to one in which "a single  



                                                                                                            (continued...)  



                                                             -17-                                                        7037
  


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

                                                                                                                    

                    Because  the  superior  court  violated  the  requirement  that  "absent  a  



                                                          

compelling reason to the contrary that is supported by the record, the court must establish  



                                                                                           15  

                                                                                                  

a plan or criteria for ending the supervision requirement,"                                   I would hold that in this  



regard it abused its discretion.  Thus I respectfully dissent from the court's conclusion  



                                                                                                                     

that this aspect of the superior court's decision in this case can be affirmed and would  



                                                                                                                  

remand the case for the development and articulation of a concrete plan under which  



Matthew can achieve unsupervised visitation within a relatively short time.  



          14(...continued)  



parent must raise a child and do the best they can, [because] either the other parent has  

                                                                                             

left, or the child's . . . other parent has decided not to take responsibility for raising that  

                                                      

child," is particularly puzzling in the context of rejecting a parent's request for more  

                                                                                                           

involvement with his child.  



          15         Yelena R. v. George R., 326 P.3d 989, 1003 (Alaska 2014).  



                                                               -18-                                                         7037
  

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