Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Bruce H. v. Jennifer L. (10/6/2017) sp-7204

Bruce H. v. Jennifer L. (10/6/2017) sp-7204

           Notice:   This opinion is subject to correction before publication in the P                     ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

BRUCE  H.,                                                            )  

                                                                      )     Supreme  Court  No.  S-16360  

                                 Appellant,                           )  


                                                                      )     Superior Court No. 3UN-12-00025 CI  

           v.                                                         )  


                                                                      )     O P I N I O N  


JENNIFER L.,                                                          )  


                                                                      )     No. 7204 - October 6, 2017  

                                 Appellee.                            )  



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


                      Judicial District, Unalaska, Pat L. Douglass, Judge.  


                      Appearances:              Justin  Eschbacher,  Law  Offices  of  G.R.  


                      Eschbacher, Anchorage, for Appellant.  Kris O. Jensen, Law  


                      Offices of Dan Allan & Associates, Anchorage, for Appellee.  


                      Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  


                      and Carney, Justices.  


                      WINFREE, Justice.  



                      Following a divorce a mother and father reached a custody settlement  


giving the mother sole legal and primary physical custody of their son; the father had  


visitation at the mother's discretion.   After the father later requested joint legal and  


shared physical custody, the mother sought authorization to relocate with the child out  


of state.  At a combined hearing on both issues the father presented evidence that the  


mother may have committed domestic violence against a former boyfriend. The superior  

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

court   denied   the father's                                                     custody   modification   request   for   failure to                                                                                         demonstrate   a  

substantial change in circumstances.                                                                                   The court granted the mother authorization to                                                                                                  

move, finding her reasons for relocating legitimate and determining that the child's best                                                                                                                                                                       

interests were served by staying with the mother. Under the court's subsequent order the                                                                                                                                                                           

mother maintained sole legal and primary physical custody, with limited visitation by the                                                                                                                                                                           

father.     The   father   appeals   the   court's   denial   of   his   custody   modification   motion,  

determination that the mother's move was legitimate, best interests determination, and                                                                                                                                                                           

visitation award. We affirm the determination that the mother's move was for legitimate                                                                                                                                                       

purposes; however, because we vacate the underlying finding that no domestic violence                                                                                                                                                             

occurred   between   the   mother   and   her   former   boyfriend   and   remand  that   issue   for  

renewed consideration, we also must remand the ultimate custody decision for renewed                                                                                                                                                              

consideration.    The visitation decision necessarily follows the custody decision and                                                                                                                                                                          

should include findings sufficient for appellate review.                                                                                           

II.                  FACTS AND PROCEEDINGS                         

                     A.                   Facts  

                                                                                                                      1  married in Kentucky in 2010.  Their  only child  

                                          Jennifer L. and Bruce H.                                                                                                                                                                                           

was born in September of that year.  Shortly after their son's birth the family moved to  


Unalaska.  When Jennifer and Bruce divorced in 2012 they agreed Jennifer would have  


primary physical and sole legal custody of their son.  


                                          In the years immediately following the divorce, the son was in Jennifer's  


care full time; Bruce visited only sporadically.  But for at least two years prior to trial,  


the son stayed overnight with Bruce - who lived with his girlfriend and their daughter,  


the son's half-sister - about three nights per week.  




                                         We use initials for privacy protection.  

                                                                                                                                  -2-                                                                                                                                     7204  

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

          B.        Proceedings  


                    In February 2016, when their son was five years old, Bruce requested a  


modification to joint legal and shared physical custody.  In an accompanying affidavit  


Bruce accused Jennifer of exposing their son to tumultuous and violent relationships and  


failing  to  provide  him  proper  care.                   While  Bruce's  motion  was  pending,  Jennifer  


indicated that she intended to move with their son to Kentucky to live with her mother  


and that she already had arranged their transportation.   Jennifer then filed a motion  


seeking the court's authorization for her relocation with the child to Kentucky.  


                    The superior court ordered a joint evidentiary hearing on the motions.  


Bruce testified about his stable family life and his relationship with his son, and he called  


several witnesses who attested to his parenting abilities.   Jennifer testified about her  


motives for moving to Kentucky, including her resignation from her job in Unalaska, a  


difficult relationship breakup, a desire to be near family, and the opportunity to further  


her education in Kentucky.  Jennifer said that she had been planning to move for some  


time and had not realized she needed court permission to do so.  


                    Jennifer, Bruce, and Jennifer's mother testified that in Kentucky Jennifer  


and the child would be near Jennifer's family members, as well as Bruce's other son and  


Bruce's parents in Tennessee.  Jennifer and her mother described the area and nearby  


attractions, such as cities, parks, and museums. Jennifer testified that she had supported  


visitation between Bruce and their son in the past and that she intended to continue  


supporting their relationship after the move.  


                    Bruce called Jennifer's ex-boyfriend, Jose L., to testify about Jennifer's  


conduct  as  a  parent,  her  history  of  drinking,  and  an  allegation  that  she  committed  


domestic violence against Jose.  Jose testified that during an argument "she tried to hit  


me, and I threw her to the ground and held her until the cops came."  Jose stated that he  


held Jennifer down by her neck.  He stated that the incident probably occurred in 2013,  

                                                               -3-                                                         7204

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


but he was not certain.  Jose testified that Jennifer was "fairly intoxicated" at the time,  


that they argued often, and that  there  may have been other violent episodes.   Jose  


admitted that Jennifer's attempt to hit him could be seen as self-defense.  


                    Jennifer also testified about the incident, saying that she did not remember  


what exactly caused their argument, but "I do know that [Jose] shoved me, trying to  


make me leave," and "the argument progressed from there and . . . [he] ended up holding  


me down on the ground, and when I stood up is when I swung at him."  Neither witness  


testified that Jennifer actually hit Jose.  They disagreed only about timing, with Jose  


testifying that Jennifer tried to hit him before he pinned her to the ground and Jennifer  


testifying that she tried to hit him when she stood up afterward.  


                    After the hearing the superior court issued a modified child support and  


custody order and an accompanying order addressing both parties' arguments. The court  


denied Bruce's motion to modify custody, ruling that he had failed to show a substantial  


change in circumstances.  Responding to Bruce's argument that the alleged domestic  


violence constituted a substantial change in circumstances, the court stated that "there  


is no time frame associated with this alleged incident and no testimony in support of the  


allegation, nor is there a report that this incident resulted in judicial proceedings or has  


occurred on multiple occasions."  But because Jennifer was planning to relocate with  


their son, the court determined she had alleged a substantial change in circumstances.  


The court found Jennifer's motives for moving to Kentucky -employment, family, and  


educational and extracurricular opportunities for the child - were legitimate.  


                    The court next addressed whether physical custody with Bruce in Unalaska  


or with Jennifer in Kentucky would better serve their son's interests.  Analyzing each  

                                                                -4-                                                         7204

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


best interests factor individually,                                                                                    the court found that the stability factor slightly favored                                                                                                         

Jennifer because, although moving away from the son's father and childhood home                                                                                                                                                                                                                  

would be disruptive, separating the child from Jennifer, his "primary parent," could be                                                                                                                                                                                                                      

more harmful.                                        The court addressed the domestic violence incident again in the context                                                                                                                                                               

 of the best interests factors, concluding that it "does not rise to the level of domestic                                                                                                                                                                                          

violence as defined by AS 25.24.150(g)."                                                                                                                      After weighing all the factors, the court                                                                                           

 determined that Jennifer should have primary physical custody; she also retained sole                                                                                                                                                                                                                

 legal   custody   without   comment   by   the   court.     The   court   awarded   Bruce   visitation  

 consisting   of   one   30-minute   phone   call   per   week,   a   two-week  summer   visit,   and  

 alternating Christmas and spring break visits.                                                                                                                      

                                                Bruce appeals a number of the court's decisions, including its finding that                                                                                                                                                                             

Jennifer's move was legitimate; its best interests determination; its implicit legal custody                                                                                                                                                                                              

 award; and its visitation order.                                                                               

III.                     STANDARD OF REVIEW                                                

                                                "Whether the court's findings on domestic violence are supported by the                                                                                                                                                                                   

                                                                                                                                                                                                                             3       "Whether the superior  

record is a question of fact which we review for clear error."                                                                                                                                                                                                                         

 court applied the correct legal standard is a question of law that we review de novo,  


 'adopting the rule of law that is most persuasive in light of precedent, reason[,] and  


policy.' "4                              The superior court has broad discretion in determining "whether, following  


                        2                       See  AS 25.24.150(c)(1)-(9) (enumerating factors to be considered in child                                                                                                                                                                          

 custody best interests determinations).                                       

                        3                        Caroline J. v. Theodore J., 354 P.3d 1085, 1090 (Alaska 2015) (quoting  


 Yelena R. v. George R., 326 P.3d 989, 998 (Alaska 2014)).  


                        4                       Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (quoting McQuade v.  


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


                                                                                                                                                      -5-                                                                                                                                           7204

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

an    evidentiary    hearing,    the    moving  party  has    proven    a    substantial    change    in  

circumstances, meaning one that affects the child's welfare."                                5  

                     "Trial courts have broad discretion in determining whether a proposed  


child-custody modification is in the child's best interests. We will set aside the superior  


court's best interests determination only if the trial court abused its discretion or if the  


fact findings on which the determination is based are clearly erroneous."6                                           A factual  


finding is erroneous if, "based on a review of the entire record, the finding leaves us with  


a definite and firm conviction that a mistake has been made."7  


                    We review visitation awards for abuse of discretion.8  



          A.	        The Superior Court's Denial Of Bruce's Modification Motion Was  


                    Based On Clearly Erroneous Factual Findings And Erroneous Legal  



                    A  parent  seeking  to  modify  custody  bears  the  burden  of  showing  a  


substantial change in circumstances sufficient to justify modifying custody.9  A crime of  


domestic violence is a substantial change of circumstances as a matter of law,10  and for  


          5          Collier  v.  Harris,  377  P.3d  15,  20  (Alaska  2016)  (citing  Heather  W.  v.  Rudy  

R.,  274  P.3d  478,  482  (Alaska  2012)).  

          6         Rego,  259  P.3d  at  452  (citing  Ebertz  v.  Ebertz,  113  P.3d  643,  646  (Alaska  


          7         Id.  (citing  Ebertz,   113  P.3d  at  646).  

          8         Skinner  v.  Hagberg,  183  P.3d  486,  489  (Alaska  2008)  (citing  Lone  Wolf  v.  

Lone   Wolf,  741  P.2d   1187,   1190  (Alaska   1987)).  

          9         Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014).  


          10        AS 25.20.110(c) ("In a proceeding involving the modification of an award  


for custody of a child or visitation with a child, a finding that a crime involving domestic  



                                                                -6-	                                                        7204

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

physical custody purposes an out-of-state move is a substantial change of circumstances                              

as a matter of law.11                                              

                                  In denying Bruce's motion to modify custody, the superior court  


found, "[r]egarding theaccusation that [Jennifer]hit her boyfriend, there is no time frame  


associated with this alleged incident and no testimony in support of the allegation."  


Having found no evidence of domestic violence and no other substantial change, the  


court denied Bruce's motion to modify legal and physical custody.  


                     The superior court's discussion of domestic violence was based on clearly  


erroneous factual findings and erroneous legal conclusions. The court stated that there  


was no time frame associated with the alleged incident, but both Jose and Jennifer  


testified that the incident probably occurred in 2013.   The court found there was no  

                                                          12 but it was the principal issue in Jose's testimony,  


testimony supporting the allegation, 

and Jennifer also testified about it.  The court also noted there was "no report that this  


incident resulted in judicial proceedings or has occurred on multiple occasions," but  


neither separate judicial proceedings nor multiple incidents of domestic violence are  


           10         (...continued)  


violence has occurred since the last custody or visitation determination is a finding of  


change of circumstances . . . .").  

           11        Judd v. Burns, 397 P.3d 331, 341 (Alaska 2017) ("While an out-of-state  


move is a substantial change in circumstances for physical custody purposes, it is not  


necessarily a substantial change for legal custody purposes.").  


           12        Alaska  Statute  25.90.010  defines  domestic  violence  by  reference  to  


AS  18.66.990.              The  latter  definition  includes  "a  crime  against  the  person  under  


AS 11.41," as well as "an attempt to commit the offense." AS 18.66.990(3). Attempted  


assault  in  the  fourth  degree  therefore  qualifies  as  a  domestic  violence  crime.                                            See  


AS 11.41.230(a) ("A person commits the crime of assault in the fourth degree if . . . by  


words or conduct that person recklessly places another person in fear of imminent  


physical injury."); Parks v. Parks, 214 P.3d 295, 300 (Alaska 2009) (holding attempt to  


commit assault in the fourth degree would fall within meaning of domestic violence).  


                                                                   -7-                                                             7204

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

required to find a substantial change of circumstances when there is a finding of a crime                                                              


of domestic violence.                                                                                                        

                                             We must therefore vacate these erroneous determinations.  


                         The posture of this case requires us to remand for the superior court to  


reconsider Bruce's modification motion.  The court determined that Jennifer's move  


amounted to a substantial change in circumstances and proceeded to the best interests  


analysis;  in  some  circumstances  that  would  render  moot  a  competing  modification  


motion alleging a different substantial change in circumstances.   But a move "is not  

                                                                                                                    14    Because only Bruce  


necessarily a substantial change for legal custody purposes." 

sought to modify legal custody, when the court denied Bruce's motion and considered  


only Jennifer's it did not address whether joint legal custody was in the child's best  


interests. It is therefore necessary to remand for the court to revisit its domestic violence  


findings and reconsider Bruce's modification motion.  We note that the superior court  

should separately consider Bruce's stated reasons for modifying legal custody when  


reviewing his substantial change of circumstances allegations.15  


            B.	          The Superior Court's Finding That Jennifer's Move Was Legitimate  


                         Was Not Clearly Erroneous.  


                         In relocation cases the superior court must assess first the legitimacy of the  


move and then the child's best interests under AS 25.24.150(c).16  


                                                                                                                               If the reasons for  

            13           See  AS25.20.110(c) ("[A]finding                              thatacrimeinvolving                     domesticviolence   

has occurred since the last custody or visitation determination is a finding of change of                                                                    

circumstances . . . .").         

            14          Judd, 397 P.3d at 341.  


            15           Collier  v.  Harris,  377  P.3d  15,  20  (Alaska  2016)  (holding  that,  at  


substantial change of circumstances stage, "[t]he concepts of legal and physical custody  


deserve separate analysis").  


            16           See Rego v. Rego, 259 P.3d 447, 453 (Alaska 2011).  


                                                                              -8-	                                                                     7204

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

moving are legitimate, then "there is no presumption favoring either parent when the                                                                        


court considers the child's best interests."                                                                                           

                                                                                   In making its best interests determination,  


"the superior court must assume that the legitimate move will take place and consider the  



consequences that the move will have on the child - both positive and negative." 

                         Bruce first challenges the legitimacy of Jennifer's move. For a move to be  


legitimate, the moving parent must show that the move "is not primarily motivated by  


a desire to make visitation more difficult."19                                        We do not require the moving parent to  


prove a compelling reason to move so long as the primary motivation is not limiting  


visitation with the other parent.20                                 When a legitimacy finding is based on a court's  


assessment of a parent's credibility, we "give it particular deference."21  


                         Here the superior court determined that Jennifer's move was legitimate,  


noting that she was moving closer to family, seeking employment, and providing the  


             17          Id.  (citing  McQuade v. McQuade                              , 901 P.2d 421, 424 (Alaska 1995)).                   

             18          Id.  (citing  Eniero v. Brekke                     , 192 P.3d 147, 150 (Alaska 2008);                                 Fardig v.   

Fardig, 56 P.3d 9, 13 n.12 (Alaska 2002); Moeller-Prokosch v. Prokosch, 27 P.3d 314,  


316 (Alaska 2001)).      

             19          Id. (citing Moeller-Prokosch, 27 P.3d at 316).  


             20          See, e.g., Judd v. Burns, 397 P.3d 331, 336-37 (Alaska 2017) (explaining  


that "[w]hile vague and aesthetic motives may be less convincing than more easily  


explained ones, moving to be 'more happy' or to 'enjoy better weather year-round' may  


be sufficient; indeed, the superior court does not need to be able to identify the primary  


motivation at all as long as it can exclude 'a desire to make visitation more difficult' ");  


Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005) (noting court found "desire to get  


away from the State of Alaska" a legitimate reason for moving).  


             21          Kristina B. v. Edward B., 329 P.3d 202, 214 (Alaska 2014) (citing Limeres  


v. Limeres, 320 P.3d 291, 296 (Alaska 2014)).  


                                                                              -9-                                                                       7204

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

child new educational and extracurricular opportunities. The court found that Jennifer's                                                                                                                                                                  

move was not motivated by a desire to "prevent [Bruce] from interacting with his child."                                                                                                                                                                                                    

                                           Bruce calls into question the facts cited by the superior court as reasons for                                                                                                                                                       

Jennifer's move, but he points to no evidence that Jennifer's primary intent was to limit                                                                                                                                                                                 

his time with their son. Bruce argues that Jennifer's desire to be near family "was simply                                                                                                                                                                         

a matter of convenience" and that Jennifer "was not entirely sure whether she would be                                                                                                                                                                                            

employed" in Kentucky. He                                                                  refutes the court'sfinding                                                         that the educational opportunities  

and family support for their son partly motivated the move.                                                                                                                                            But the court's findings     

were based largely on its assessment of Jennifer's credibility - which we view with                                                                                                                                                                                       

                                                                        22  - when she stated that she "wishe[d] to move in order to be  

"particular deference"                                                                                                                                                                                                                                                           

closer to her family and to seek better employment prospects in Kentucky."   Even  


assuming Bruce's assertions are correct, they do not show that Jennifer's primary motive  


was to limit Bruce's visitation.23  


                                           Bruce also points to the timing of Jennifer's relocation motion as evidence  


of a motive to limit his custody.  He argues that Jennifer made plans to move, including  


purchasing plane tickets, without informing him or the court and that her plans indicated  


an  illegitimate  motive.                                                           The  superior  court  acknowledged  that  Bruce  and  Jennifer  


"disagree[d] about [Jennifer's] moving timeline."  But the court contrasted Jennifer's  


conduct with  that in Hamilton  v.  Hamilton,  where the moving  parent attempted to  


"abscond" with the children without notice to the other parent.24                                                                                                                                                        Unlike in that case,  


where the moving parent made plans to move with the children and attempted to deceive  


the other parent about those plans, here Jennifer testified that she began making moving  


                      22                   Id.  (citing  Limeres, 320 P.3d at 296).                                                                

                      23                   See Judd                      , 397 P.3d at 336-37.                      

                      24                   42 P.3d 1107, 1114 (Alaska 2002).                                                             

                                                                                                                                      -10-                                                                                                                               7204

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

arrangements before realizing she needed the court's permission to relocate with the                                                      



              It was not error for the court to rely on Jennifer's testimony and decline to hold  


her travel arrangements against her in its legitimacy determination.  


                      Bruce also notes that Jennifer filed her motion to relocate shortly after  


Bruce sought increased custody of their son, a fact the court recognized in its findings.  


But questionable timing alone ordinarily does not make a move illegitimate, especially  


when the moving parent has a history of supporting a child's relationship with the other  


parent.  In Judd v. Burns, for instance, we affirmed the finding of a legitimate move  


despite the allegation that the moving parent had "a pattern of moving to avoid sharing  

                26  We explained that although the mother had previously moved out of state  


with an older child, she had made efforts to support the relationship between the older  


                                                                      27   Here the court found that Bruce "ha[d] not  

child and the child's father after that move.                                                                                             


presented credible evidence that [Jennifer] ha[d] prevented him from visiting with [their  


son]."  Instead, the record shows that Jennifer supported Bruce's relationship with their  


son.   Bruce has not shown that the court's finding of a legitimate move was clearly  



           C.	        The Superior Court's Best Interests Determination Was Partly Based  


                      On Its Erroneous Domestic Violence Findings.  


                      1.	        Overview  

                      Once a parent moving out of state makes a threshold showing that the  


proposed  move  is  legitimate,  the  court  must  consider  the  nine  factors  listed  in  


AS 25.24.150(c) to "determine custody in accordance with the best interests of the  


           25         See id.   

           26         397 P.3d at 337.       

           27	        Id.  

                                                                    -11-	                                                             7204

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


child."           In its best interests analysis "the court may consider only those facts that                                             


directly affect the well-being of the child."                                                                                                      

                                                                                 Here the court analyzed each factor listed  


in AS 25.24.150(c) and determined that eight of the best interests factors did not favor  


either parent.  It found that the stability factor, "the length of time the child has lived in  



a  stable,  satisfactory  environment  and  the  desirability  of maintaining  continuity," 

slightly favored Jennifer.   The court accordingly awarded Jennifer primary physical  




                        Brucedisputesthecourt'sfactual findings pertaining to four ofthestatutory  




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


                        child's] needs;  


                                    . . . .  


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


                        satisfactory environment and the desirability of maintaining  




                                    . . . .  


                                    (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 membersofthehouseholddirectlyaffects theemotional  



                        or physical well-being of the child . . . . 

            28          Rego v. Rego            , 259 P.3d 447, 453 (Alaska 2011).                  



                        AS 25.24.150(d).  



                        AS 25.24.150(c)(5).  



                        AS 25.24.150(c).  

                                                                          -12-                                                                     7204

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

                                                                2.                              Domestic violence   

                                                                We   begin   with   the   superior   court's  domestic   violence   findings   under  

AS 25.24.150(c)(7); those findings resemble its description of the domestic violence                                                                                                                                                                                                                                                                                                

allegations in its "substantial change in circumstances"analysis. The                                                                                                                                                                                                                                                               court stated, in full:  

                                                                Regarding the accusation that [Jennifer] hit her boyfriend,                                                                                                                                                                                

                                                                there is no time frame associated with this alleged incident                                                                                                                                                                                           

                                                                and no testimony in support of the allegation, nor is there a                                                                                                                                                                                                                            

                                                                report that this incident resulted in judicial proceedings or has                                                                                                                                                                                                              

                                                                occurred on multiple occasions.                                                                                                                                This does not rise to the                                                                                      

                                                                level of domestic violence as defined by AS 25.24.150(g).                                                                                                                                                                                                                                 

                                                                As we explained above, the superior court's findings that there was no time                                                                                                                                                                                                                                                               

frame and no testimony in support of the alleged incident are clearly erroneous.                                                                                                                                                                                                                                                                                                                       The  

court's legal analysis under this factor is also flawed.  Neither the best interests statute                                                                                                                                                                                                                                                                                                  

nor our precedent requires evidence of either separate judicial proceedings or multiple                                                                                                                                                                                                                                                                                               


instancesofdomesticviolenceto makedomestic violence findings in acustodydispute.                                                                                                                                                                                                                                                                                                                                                   

And the court improperly relied on AS 25.24.150(g) to define domestic violence.  That  


 statute contains no such definition, instead describing the presumption against awarding  


custody to a parent with "a history of perpetrating domestic violence."33                                                                                                                                                                                                                                                                                      These factual  


                                32                              AS 25.24.150(c)(7) (requiring superior court to consider "                                                                                                                                                                                                                      any evidence                                                       of  

domestic violence . . . in the proposed custodial household" (emphasis added));                                                                                                                                                                                                                                                                                                                             see  

 Veselsky v. Veselsky                                                                            , 113 P.3d 629, 636 (Alaska 2005) (affirming superior court's best                                                                                                                                                                                                                                       

interests determination relying on testimony and statements by parent to counselor about                                                                                                                                                                                                                                                                                                            

domestic violence);                                                                            see also Mallory D. v. Malcolm D.                                                                                                                                           , 290 P.3d 1194, 1201 (Alaska                                                                               

2012) (affirming superior court's decision relying on trial testimony to find domestic                                                                                                                                                                                                                                                                                            

violence and apply domestic violence presumption).                                                                                                                                     

                                33                              AS   25.24.150(g).                                                                                          Alaska   Statute   25.90.010,   and,   by   reference,  


AS 18.66.990,  define domestic violence, but the superior  court cited neither  when  


determining that Jennifer had not committed domestic violence.  


                                                                                                                                                                                                      -13-                                                                                                                                                                                             7204

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

 and legal errors require us to reverse the superior court's domestic violence findings and                                                                                                                               


 remand for reconsideration of this factor and the best interests determination.                                                                                                                                 


                                    3.               Child's needs, stability, and parental substance abuse  


                                    Thesuperior court determined under AS25.24.150(c)(2) that "both parents  


 have  the  physical  capacity  to  provide  for  [the  child]'s  needs."                                                                                                                   In  making  its  


 determination the court found that both Jennifer and Bruce had been able to maintain  


 homes and stable employment.  The court found that Jennifer "has been [the child]'s  


primary caretaker since his birth."  The court recognized Jennifer had recently lost her  


job and was "suffering from stress and depression," but nevertheless "has continued to  


provide for [the child]."  Bruce also "had some difficulties in the past controlling his  


 emotions but has since overcome these challenges."  


                                    Bruce argues that, because of Jennifer's "long-term pattern of instability"  


- including allegations of substance abuse, domestic violence, and mental health issues  


- the court's finding of relative stability on Jennifer's part was clearly erroneous.  He  


 also disputes the court's finding that Jennifer was their son's primary caretaker, noting  


 that he and Jennifer shared custody for the previous two to three years.  


                                    The  record  supports  the  superior  court's  finding  that  both  parents  are  


 capable of meeting their son's needs, and Bruce points to no evidence that Jennifer's  

                  34               We generally require detailed domestic violence findings when a party                                                                                                             

 alleges that the domestic violence presumption should apply.                                                                                                     See Sarah D. v. John D.                                         ,  

 352 P.3d 419, 429-30, 434 (Alaska 2015) (remanding for detailed factual findings about                                                                                                                              

 domestic   violence   allegations   that   could   have   triggered   presumption);   Williams   v.  

Barbee,   243   P.3d   995,   1003-04   (Alaska   2010)   (remanding   for   "express   findings"  

 whether   alleged   domestic   violence   amounted   to   history   of   perpetrating   domestic  

 violence).    Bruce has made no such claim here or to the superior court.                                                                                                                           Unlike the   

 domestic violence presumption, the best interests determination involves the superior                                                                                                                        

 court's discretion in weighing factors such as evidence of domestic violence.                                                                                                     

                                                                                                             -14-                                                                                                     7204

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


 "pattern of instability" has affected her parenting.                                                                                                                                                                                                                                                                                             The court's finding that Jennifer had                                                                                                                                                                                     

been the child's primary caretaker, especially in his early years, was also supported by                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

trial testimony that Bruce did not actively participate in their son's upbringing until more                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

recently.   The court's findings under AS 25.24.150(c)(2) are not clearly erroneous.                                                                                                                                                                                                                                                                                                                                                                                                                 

                                                                                          In determining stability under AS 25.24.150(c)(5), the superior court made                                                                                                                                                                                                                                                                                                                                                                                            

the following factual findings: the child "spends a majority of time with his mother"; the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      

 child's relationship with his half-sister in Unalaska was "balanced with the existence"                                                                                                                                                                                                                                                                                                                                                                         

 of a half-brother near his proposed home in Kentucky; and Bruce's allegations about an                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

 overdoseincident                                                                                                     in Jennifer's homewere"incredible." Thecourt                                                                                                                                                                                                                                                                                ultimatelydetermined   

 "it could be far more unsettling for [the child] to change his primary parent" and found                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

the stability factor favored Jennifer.                                                                                                                                                                                                           Bruce disputes each factual finding underlying the                                                                                                                                                                                                                                                                             

 court's decision and argues that the court erroneously failed to consider geographic                                                                                                                                                                                                                                                                                                                                                                                                                                  

 stability when making its determination. Bruce                                                                                                                                                                                                                                                                        asserts thecourt                                                                                            erredin                                             determining that  

the factor favored Jennifer.                                                                                              

                                                                                          The superior court's finding that the child "spends a majority of time with                                                                                                                                                                                                                                                                                                                                                                                                 

his mother" was not clearly erroneous.                                                                                                                                                                                                                             Although Bruce points to his and Jennifer's "de                                                                                                                                                                                                                                                           

 facto shared custody agreement," both he and Jennifer testified that Bruce had visitation                                                                                                                                                                                                                                                                                                                                                                                                                                            

with the child three nights per week but that before establishing that schedule their son                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

had lived with Jennifer full time.                                                                                                                                                                                               That testimony supports the court's finding that the                                                                                                                                                                                                                                                                                         

 child spends a majority of his time with his mother.                                                                                                                                                                                                                                                

                                                                                          Bruce argues that the superior court erred by comparing the child's bond                                                                                                                                                                                                                                                                                                                                              

with his half-sister in Unalaska to the relationship with his half-brother in Kentucky.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

                                             35                                           See   Rego   v.   Rego,   259  P.3d     447,   460-61   (Alaska   2011)   ("We   have  

 explained that 'instability in relationships [does not] warrant a custody change where the                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

parent's conduct does not adversely affect the child or the . . . parenting abilities.' "                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 (alterations in original) (quoting                                                                                                                                                                                       S.N.E. v. R.L.B.                                                                                             , 699 P.2d 875, 878 (Alaska 1985))).                                                                                                                                                          

                                                                                                                                                                                                                                                                                      -15-                                                                                                                                                                                                                                                                           7204

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

 Trial testimony showed the child has a loving relationship with both half-siblings; that                                                                                                                                                                                                                                                                                        

 finding was not clearly erroneous.                                                                                                                        

                                                            The superior court also addressed trial testimony regarding a third-party's                                                                                                                                                                                              

 overdose in Jennifer's home, calling it "an isolated incident" and noting "[t]here was no                                                                                                                                                                                                                                                                                             

 indication that [the child] witnessed the incident but he did attend counseling afterward."                                                                                                                                                                                                                                                                                                          

 Based on those findings and "the fact that [Bruce] still appears to only want shared                                                                                                                                                                                                                                                                              

 custody,"the court deemedBruce's allegations abouttheoverdoseincident                                                                                                                                                                                                                                                                  "incredible."   

 Bruce   disputes   the   court's   findings   about   the   overdose   incident,   arguing   that,   by  

 describing his allegations as "incredible," the court erroneously determined the incident                                                                                                                                                                                                                                                                    

 did   not   occur   and   held  the   allegation   against   Bruce   when   making   its   stability  

 determination.    But the court found that the incident occurred.                                                                                                                                                                                                                                   Its use of the word                                                 

 "incredible" appears to refer only to Bruce's allegation that the incident reflected poorly                                                                                                                                                                                                                                                                         

 on Jennifer's parenting abilities. The court did not hold Bruce's allegations against him;                                                                                                                                                                                                                                                                                   

 it merely declined to hold themagainst                                                                                                                                   Jennifer. The                                                court's findings about the overdose  

 incident were not clearly erroneous.                                                                            

                                                            Bruce   also   argues   that   superior   court   failed   to   adequately   consider  

 geographic stability when making its stability determination.                                                                                                                                                                                                                      We expect the superior                                                 

 court to consider both "geographical continuity" and "relational stability" when making                                                                                                                                                                                                                                                                        

                                                                                                                             36              But "[w]e have noted that a 'continuity test centered  

 its stability determinations.                                                                                                                                                                                                                                                                                                                            

 entirely on the child's geographic stability would always favor placing the child with the  


non-moving parent.' "37                                                                                         Here the court acknowledged that the child "spent most of his  


                              36                             Chesser-Witmer v. Chesser                                                                                                   , 117 P.3d 711, 719 (Alaska 2005) (quoting                                                                                                                       

Meier v. Cloud                                                      , 34 P.3d 1274, 1279 (Alaska 2001)).                                                                                                 

                              37                           Id. (quoting Meier, 34 P.3d at 1279).  


                                                                                                                                                                                         -16-                                                                                                                                                                                7204

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

life in Unalaska" but also "lived most of his life with his mother."                                                                                    The court therefore     

did not disregard geographic stability in making its determination.                                                                                    38  

                              Bruce finally disputes the superior court's ultimate conclusion that the  


stability factor favored Jennifer, arguing there "was no evidence to support the trial  


court's finding that it would be more unsettling to [the child] to remain in Unalaska in  


his father's household than relocating with [Jennifer] to Kentucky."  But the court's  


determination was supported by its findings that the child had spent the majority of his  


life  in  his  mother's  care.                                        Bruce  has  not  shown  the  superior  court's  stability  


determination under AS 25.24.150(c)(5) was clearly erroneous.  


                                The superior court found under AS 25.24.150(c)(8) that Jennifer "may  


have  [had]  issues  with  alcohol,"  including  "drink[ing]  alcohol  while  on  anti- 


depressants."  The court found that "[w]hile this is concerning, there was no evidence  


presented to suggest that [Jennifer's] alcohol use has directly affected the emotional or  


physical well-being of [the child]."  The court ordered Jennifer to undergo a substance  


abuse evaluation.   Bruce disputes the court's finding that Jennifer's drinking had no  


effect on their son, pointing to Jose's testimony that while drunk Jennifer once wanted  


to leave with the child, and Jose threatened to call the police if she drove. But the record  


supports the court's finding: Jose testified that Jennifer "made arrangements for a friend  


to come pick her up" instead of driving.   Bruce also points to the court's order that  


Jennifer undergo an alcohol assessment as evidence her drinking affected their son. This  


               38             Nor   was   the   court  required   to   consider   Jennifer's   alleged   "disruptive  

relationship history," as Bruce argues, unless that history had an effect on her parenting                                                                                      

abilities or the child.                         Rego, 259 P.3d at 460-61 ("We have explained that 'instability in                                                                                

relationships [does not] warrant a custody change where the parent's conduct does not                                                                                                         

adversely affect the child or the . . . parenting abilities." (alterations in original) (quoting                                                                                  

S.N.E, 699 P.2d at 878)).                                  Bruce points to no such effect.                                         

                                                                                              -17-                                                                                       7204

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

does not contradict the court's finding that Jennifer's drinking did not affect the child.                                                                                                                                                                                                                                                                       

The court's findings under this factor were not clearly erroneous.                                                                                                                                                          

                                                      Weconcludethat                                                       thesuperior court'sfindingsrelatingto                                                                                                                    domesticviolence   

were clearly erroneous and based on an incorrect legal analysis, but we find no clear                                                                                                                                                                                                                                                   

error in the court's other factual findings.                                                                                                                                  We remand for the court to reconsider its                                                                                                                           

domestic violence findings and analysis and to reweigh the best interests factors based                                                                                                                                                                                                                                              

on its new determinations.                                                                                    The court, of course, is free to hear new testimony and to                                                                                                                                                                            

modify its other factual findings if necessary.                                                                                              

                           E.	                        The Superior Court's Limited Visitation Award Was Not Supported                                                                                                                                                                                          

                                                      By Sufficient Findings.                                   

                                                      On remand the superior court will be required to revisit its visitation award                                                                                                                                                                                                 

if its custody decision changes. Even if the custody decision remains the same, the court                                                                                                                                                                                                                                               

must revisit its visitation award.                                                                                                 We have recognized that "visitation is a 'natural right                                                                                                                                               

of    the    noncustodial    parent    that    may    not    be    taken    away    absent  extraordinary  

                                                                      39         We accordingly require courts awarding limited visitation to make  

circumstances.' "                                                                                                                                                                                                                                                                                                                      

findings supporting that decision "unless the reasons can be gleaned from the record."40  


Here, despite enjoying visitation with his son for three nights per week for at least two  


years prior to trial, Bruce was awarded visitation consisting of only one 30-minute phone  


or video call per week, two weeks of summer visitation, and alternating Christmas and  


spring break vacations.  Although the child's Kentucky school schedule, which is year- 


round, may not permit an extended summer visit, the court did not explain its decision  


not to award Bruce reasonable additional visitation at other times during the year.  On  

                           39                          William P. v. Taunya P., 258 P.3d 812, 818-19 (Alaska 2011) (quoting 1                                                                                                                                                           

JEFF  ATKINSON, M                                                           ODERN  CHILD  CUSTODY  PRACTICE    5.2 (2d ed. 2010)).                                                                                                                                           

                           40                        I.J.D.  v. D.R.D.                                             , 961 P.2d 425, 432 (Alaska 1998) (citing                                                                                                                         Lone Wolf v. Lone                                   

 Wolf, 741 P.2d 1187, 1190-91 (Alaska 1987)).                                                                                                                 

                                                                                                                                                                       -18-	                                                                                                                                                             7204

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

the   record   before   us,   "we   are   unable   to   discern   why   the   trial   court   awarded   such  

restricted visitation," and the court on remand must "make specific findings explaining                                                                                                                             


the award" and may "expand the visitation award if appropriate."                                                                                                                             

V.                 CONCLUSION  

                                     We  VACATE  the  superior  court's  domestic  violence  findings  and  


REMAND for a new consideration of Bruce's modification motion, the best interests  


analysis for  physical custody (and  legal custody  if warranted),  and  visitation.                                                                                                                                                    We  


AFFIRM the superior  court's determination  that Jennifer's move to Kentucky  was  


legitimate.  We do not retain jurisdiction.  


                   41                Id.   Andifthesuperior court                                                 awards Bruce visitation of over 27 consecutive                                                 

days, it should make findings about whether Bruce is entitled to a visitation credit.                                                                                                                                                  See  

Alaska R. Civ. P. 90.3(a)(3);                                                     Reilly v. Northrop                                 , 314 P.3d 1206, 1218 (Alaska 2013).                                                    

                                                                                                                   -19-                                                                                                             7204

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights