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Mengisteab v. Oates (8/3/2018) sp-7267

           Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                          

           corrections@akcourts.us.  



                        THE SUPREME COURT OF THE STATE OF ALASKA  



NURIA MENGISTEAB,                                                        )  

                                                                         )     Supreme Court No. 15986  

                                  Appellant,                             )  

                                                                         )     Superior Court No. 3AN-13-08093 CI  

           v.	                                                           )  

                                                                         )     O P I N I O N  

AHLA-TAKI OATES,                                                         )            

                                                                         )     No. 7267 - August 3, 2018  

                                  Appellee.	                             )
  

                                                                         )
  



                       Appeal from the Superior Court of the State of Alaska,
  

                       Third Judicial District, Anchorage, Patrick J. McKay, Judge.  
 



                       Appearances:      Nuria   Mengisteab,   pro   se,   Anchorage,  

                       Appellant.*  



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

                       and Carney, Justices.  



                       STOWERS, Chief Justice.  



I.         INTRODUCTION  



                       Nuria Mengisteab filed a motion to modify custody to relocate with the  



parties' young son to another state, and then moved two days later.  After several months  

                                                            



the superior court ordered that the child return to Alaska and conditionally awarded  



           *           The appellee, Ahla-Taki Oates, filed a pro se motion for reconsideration of         



our decision to accept Mengisteab's late-filed notice of appeal.  Oates did not file a brief   

on the merits of the case or otherwise participate in this appeal.  


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

primary custody to the father if Mengisteab chose to remain out-of-state.  Appealing pro  



                                                                                                 

se, Mengisteab argues that the superior court erred in several respects. We conclude that  



                                                   

none of her arguments have  merit,  except for her contention that the court failed to  



                                                      

consider the effect separation from his mother would have on continuity and stability in  



the child's life.  Because the court was required to consider the child's best interests  



based on the assumption that Mengisteab would remain out-of-state, we reverse and  



remand for further proceedings.  



II.      FACTS AND PROCEEDINGS  



         A.       Facts  



                                                    

                   Saul was born in Alaska in March 2013 to Nuria Mengisteab and Ahla-Taki  



         1  

            Mengisteab and Oates never married, nor have they lived together.  Mengisteab  

Oates.                                                          



also has two older sons and an adult daughter from two other relationships. Oates is  

                                                                                 



married to another woman and is raising three other children.  



         B.       Proceedings  



                  In July 2013 Oates filed a complaint requesting sole legal and primary  



physical custody of Saul with visitation by Mengisteab to be determined by the court.  



Mengisteab responded by requesting shared legal custody and primary physical custody.  



She also requested that Oates's visitation be limited to two days a week for two hours a  



day because Saul was breast-feeding.  The parties participated in mediation and entered  

                                                                      



into an interim custody and child support agreement in September, giving Mengisteab  



                                                                                                   

primary physical custody, giving Oates visitation, and obligating Oates to pay $500 per  



month  in  child  support  for  October  and  November.    At  a  hearing  in  November  to  



determine whether the parties could resolve any of their issues without trial, the court  



was informed that Mengisteab planned to move to Las Vegas in February 2014.  



         1        We use a pseudonym for the child's name to protect his privacy.  



                                                          -2-                                                      7267  


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

                    In  February  2014  the  superior  court  held  a  half-day  custody  trial.  



                                                                  

Mengisteab testified that while she earlier had planned on moving out of state, she was  



not going to do so at that time, but she requested primary physical custody of Saul  



                                                                                                 

because it was in his best interests.  She also alleged that Oates had a drinking problem  



                                       

and that his wife abused heroin.  Oates testified that he sometimes had a few drinks at  



                                                                        

home  with  his  family  but  "never  did  drugs"  and  "never  had  any  abuse  problems."  



                                                                                                             

Oates's wife testified that she had used illegal substances in the past but denied an abuse  



                                                                                                 

problem.   Oates and Mengisteab's sister both testified that on several occasions when  



                                                                                                                

Oates had scheduled visitation, Mengisteab refused to let him see Saul.  Testimony by  



both Mengisteab and her sister also indicated that Mengisteab was resistant to using a  



                                                                                               

breast pump so that Saul could remain on his feeding schedule while Oates exercised his  



                                                      

visitation; this made it difficult for Oates to exercise any prolonged visitation with Saul.  



                    After the conclusion of the hearing, the court made written findings on all  

                                                   2  The court found that (1) Saul had no special needs;  

the statutory best interest factors.                                                                            



(2)  both  parents  were  capable  and  desirous  of  meeting  Saul's  needs;  (3)  Saul's  



                                               3 

                         

preference was not applicable;  (4) love and affection existed between Saul and each 



                                                                                    

parent; (5) the length of time Saul had lived in a stable, satisfactory environment and the  



desirability  of  maintaining  continuity  at  the  time  favored  Mengisteab  as  Saul  had  



                                                                       

primarily resided with Mengisteab in a stable, satisfactory environment; (6) Mengisteab  



        

was clearly reluctant to facilitate an open relationship between Oates and Saul except on  



                                      

her restrictive terms; (7) there was no substantiated evidence of domestic violence, child  



                                                          

abuse, or child neglect; (8) there was no substantiated evidence of substance abuse; and  



          2         AS 25.24.150(c) requires the court to consider the best interests of a child  



based on a set of factors when making custody decisions.  



          3         The child's preference is only a relevant factor "if the child is of sufficient       



age and capacity to form a preference."  AS 25.24.150(c)(3).  



                                                                -3-                                                         7267
  


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

                                                                                           

(9) Mengisteab's testimony was less persuasive because of her agenda to limit Oates's  



                                                      

time with Saul, but she was a good provider and had met Saul's needs.  Based on these  



                                           

findings, the court awarded primary physical custody to Mengisteab and established a  



visitation schedule for Oates.  



                                                                                     

                    At the end of May 2014 Mengisteab filed a motion to modify custody.  She  



informed the court that she would be moving out of state, that "[t]he current custody  



agre[e]ment  will  no  longer  work,"  and  she  repeated  her  concern  that  "there[was]  



                                          

substance and alcohol use in [Oates's] home."  She also requested back child support  



                                                        

from May 2013 to September 2013, indicating that during the "Feb[ruary] 2014 court  



hearing, child support in arrears was not addressed."  Shortly after filing her motion,  



                                                                                                                    

Mengisteab left Alaska with Saul without informing the court or Oates where she would  



                                                                                 

be residing.  She later testified that the initial plan was to move with her boyfriend to Las  



                                              

Vegas, where her boyfriend's parents as well as her ailing grandfather lived, but she and  



                                                    

her boyfriend had split up and she ended up staying in Las Vegas for only two days.  She  



                                                                  

then moved to Olympia, Washington where she had previously lived for ten years, where  



                                                                                                           

she had given birth to two of her children, and where she had extended family.  She also  



indicated she had secured a job and begun taking classes to renew a medical assistant  



license she had obtained in Washington in 2002.  



                    Due  to  several  scheduling  and  communication  conflicts,  the  court  was  



                                                                             

unable to hold a custody modification hearing until early October 2014, which continued  



in  late  November.    During  the  October  portion  of  the  hearing,  the  parties  had  a  



contentious discussion about visitation and back child support.  



                                                                                                     

                    After the November portion of the hearing, the court issued an oral ruling  



                                                                                                                    

allowing Oates to travel to Washington to visit Saul at least three times before June 2015  



and authorizing half of the travel expenses to be credited against any child support Oates  



                                                             

owed.  The court ordered that Saul was to return to Alaska by July 2015 and indicated  



                                                               -4-                                                         7267
  


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

that if Mengisteab chose to return as well, the court would reevaluate visitation at that  



time.  The court did not resolve the issue of back child support at the hearing.  



          The court thereafter issued a written order, memorializing the oral ruling and  

                                                                                                               



elaborating on its custody decision:  



                             Nothing  has  convinced  the  Court  to  change  the  

                    findings in the decision concerning mother's unwillingness  

                   to   let  father  be  involved  in  [Saul's]  life.    The  Court  

                        

                    specifically finds that mother's move was motivated, in great  

                                                                                                 

                   part, by a desire to separate [Saul] from his father - or at  

                                                                                                     

                   least make it difficult to allow his involvement in [Saul's]  

                                     

                   parenting.    Mother  has  no  substantial  ties  to  Washington.  

                    She lived and worked in Alaska for 5 years prior to her move.  



                             A substantial change in circumstances has occurred -  

                   mother        unilaterally       has     moved        out    of    state    without  

                   notification.  Father's visits have been effectively terminated  

                                        

                   or diminished by her move.  The Court finds this is not in  

                    [Saul's] best interests.  [Saul's] best interests would best be  

                                                       

                    served by having both parents available to [him].   If left in  

                                                                                               

                   mother's primary custody in Washington, the court believes  

                   that mother would continue to interfere with father's access  

                   and parenting of [Saul].  



                             The Court finds that it will be in [Saul's] best interest  

                                                                              

                   to return to Alaska by July 15, 2015.  If mother moves back  

                                                                               

                   with  [Saul],  the  2/10/14  decision  shall  control  visits.    If  

                   mother doesn't move back, father will have primary physical  

                                           

                   custody and the parents shall submit proposed visitation plans  

                   to ensure mother's continued involvement in [Saul's] life.  



                   Mengisteab appeals.  She argues the superior court erred in (1) finding that  

                                                                                              



Mengisteab's move out of state was primarily motivated by a desire to keep Saul's father  



away from Saul; (2) finding that there was no evidence of substance abuse in Oates's  

                                                                                   



household; (3) failing to consider the potential consequences to Saul of separation from  

                                                                                          



his  mother  were  Mengisteab  to  remain  out  of  state;  (4)  calculating  child  support;  

                  



                                                             -5-                                                       7267
  


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

                                                                                                

(5) establishing visitation and addressing associated costs; and (6) demonstrating alleged  



bias against Mengisteab.  



III.       STANDARD OF REVIEW  

                      Trial courts have "broad discretion in deciding child custody disputes"4 and  



                                                                                                            

in determining whether a proposed child custody modification is in the best interests of  



               5  

the child.    We will overturn a 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  



                                6  

                                   "A finding of fact is clearly erroneous only when a review of the  

clearly erroneous." 



                                                                

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



                   7  

                                                                                                       

a mistake."   When reviewing a custody decision, we will find an abuse of discretion "if  



                                                                                                          

the trial court considered improper factors in making its custody determination, failed to  



consider statutorily mandated factors, or assigned disproportionate weight to particular  



                                                   8  

                                                      We review de novo whether the trial court applied the  

factors while ignoring others." 



                                     9  

correct legal standard.   



           4          Stephanie W. v. Maxwell V.                   , 274 P.3d 1185, 1189 (Alaska 2012) (quoting     



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



           5          Rego v. Rego , 259 P.3d 447, 452 (Alaska 2011) (citing Ebertz v. Ebertz ,  

                                                                                             

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



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



           7  

                                                                                                                   

                      Stephanie W., 274 P.3d at 1189 (quoting Evans v. Evans , 869 P.2d 478, 479  

(Alaska 1994)).  



           8          Id. (quoting Evans , 869 P.2d at 479-80).  



           9  

                                                                                                                            

                      Rego , 259 P.3d at 452 (citing McQuade v. McQuade , 901 P.2d 421, 423 n.3  

(Alaska 1995)).  



                                                                     -6-                                                               7267
  


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

                    We review visitation orders under an abuse of discretion standard.10                                       "A  



                                                                         

court abuses its discretion if it issues a decision that is 'arbitrary, capricious, manifestly  



                                                                                        11  

unreasonable, or . . . stems from an improper motive.' "                                    "We review de novo the  



question  of  whether  a  judge  appears  biased,  which  is  assessed  under  an  objective  



                12  

standard."          



IV.       DISCUSSION  



          A.        The Two Step Moeller-Prokosch Approach  



                                                        

                    We have established a two-step approach for determining the best interests  



                                                                                                                       

of a child in a custody dispute where one parent plans to relocate out of state with the  



         13 

child.                                                                                   

            The first step is to determine whether the planned move is "legitimate," which  



                                                                                                                      

we have defined as "not primarily motivated by a desire to make visitation . . . more  



               14  

                                                                                                               

difficult."        The second step is to determine what is in the best interests of the child in  



          10        Red Elk v. McBride , 344 P.3d 818, 822 (Alaska 2015) (citing Skinner v.  



Hagberg , 183 P.3d 486, 489 (Alaska 2008)).   



          11        Shea v. State, Dep't of Admin., Div. of Ret. & Benefits                        , 204 P.3d 1023, 1026  



(Alaska 2009) (alteration in original) (quoting Dobrova v. State, Dep't of Revenue, Child   

Support Servs. Div., 171 P.3d 152, 156 (Alaska 2007)).   



          12         Wells  v.  Barile,  358  P.3d  583,  588  (Alaska  2015)  (quoting  Sagers  v.  



Sackinger, 318 P.3d 860, 863 (Alaska 2014)).  



          13  

                                                                      

                    Moeller-Prokosch v. Prokosch  (Moeller-Prokosch I), 27 P.3d 314, 316  

(Alaska 2001); see also Rego , 259 P.3d at 453-55; Eniero v. Brekke , 192 P.3d 147, 150  

(Alaska 2008) (citing McQuade , 901 P.2d at 423-24).  



          14  

                                                     

                    Moeller-Prokosch I , 27 P.3d at 316 (alteration in original) (quoting House  

                                                                                                

v. House , 779 P.2d 1204, 1208 (Alaska 1989)); see also Eniero , 192 P.3d at 150 (quoting  

Moeller-Prokosch I , 27 P.3d at 316).  



                                                               -7-                                                         7267
  


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

                                                                                                                             15 

                                                   

light of all relevant statutory best interests factors and the reasons for the relocation.                                       If  



                                                                                       

the move is legitimate, the court is not allowed to hold the move against a relocating  



                                                                          

parent, but if the move is primarily motivated by a desire to frustrate visitation, the court  



                                                          16  

                                                              In conducting the best interests analysis in this  

must take that motivation into account. 



                                                                                     17 

                                                                                        which means the court must  

context, the court must perform a "symmetric" analysis, 



                                                                                            

assume that the move in question will take or has taken place and "make a determination  



                         

as to whether it would be in the best interests of the parties' [child] to be in the physical  



                                                                                                      18  

custody of [one parent] or [the other]" in their respective locations.                                     



                    1.	       The   superior   court   did   not   clearly   err   in   finding that  

                         

                              Mengisteab's  move  was  primarily  motivated  by  a  desire  to  

                              frustrate visitation.  



                    The superior court applied the first step in our two-step approach and found  

                                                                                         



that Mengisteab's move was primarily motivated by a desire to deprive Oates of his  

                                                                              



                                 19  

ability to parent Saul.              Mengisteab argues that the court erred in making this finding.  

                                                                                         



We disagree.  



          15        See  Moeller-Prokosch v. Prokosch  (Moeller-Prokosch II), 53 P.3d 152, 157  



(Alaska 2002); Moeller-Prokosch I , 27 P.3d at 316.  



          16        Moeller-Prokosch II , 53 P.3d at 157 (citing Moeller-Prokosch I , 27 P.3d  

                                                                       

at 316); Rego, 259 P.3d at 454 ("[W]e made it clear that the superior court may not hold  

                                                                                                        

a  legitimate  move  against  a  relocating  parent.    The Moeller-Prokosch  cases  set  the  

governing standard for custody decisions involving parental relocation.  Once a parent  

                                                                

has shown that the decision to relocate is a legitimate one, then that parent is not required  

                                           

to defend the move a second time by showing that life with that parent is superior to life  

                                                                                          

with both parents in the same city." (footnotes omitted)).  



          17        Moeller-Prokosch v. Prokosch (Moeller-Prokosch III), 99 P.3d 531, 535-36  



(Alaska 2004).  



          18        Moeller-Prokosch II , 53 P.3d at 153.  



          19  

                           

                    See Eniero , 192 P.3d at 150 (citing Moeller-Prokosch I , 27 P.3d at 316).  



                                                               -8-	                                                        7267
  


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

                        While  Mengisteab  offered  several  legitimate  reasons  for  her  move,  



including  social  connections,  family  relationships,  and  schooling  opportunities  in  



Washington, the record provides clear support for the court's finding that Mengisteab's                      



move  was   primarily  motivated  by  an  illegitimate  purpose.    Mengisteab  repeatedly  



changed  her  plans  about  when  she  would  leave  Alaska,   did  not  provide  contact  



information or adequate notice of her move to the court, and did not provide either the   



court  or  Oates  with   a  forwarding  address.    These  actions  led  the  court  to  find  that  



Mengisteab was not credible and that she was motivated by a desire to interfere with     



Oates's ability to parent.  



                        The       court's         ultimately           unfavorable              determination               with       regard         to  



                                                                                                                               

Mengisteab's move was made in the context of other instances evident from the record  



where  Mengisteab  resisted  allowing  Oates  to  visit  with  Saul,  such  as  her  repeated  



                                                                                              

cancelling of scheduled visitations and her refusal to use a breast pump to accommodate  



Oates's  visitations  into  Saul's  feeding  schedule.  This  context  supports  the  court's  



ultimate finding with respect to Mengisteab's motivations.  



                                                            

                        Mengisteab  argues  that  the  court  erred  in  finding  that  she  had  "[n]o  



                                   

substantial  ties  to  Washington."    Mengisteab  testified  that  she  previously  lived  in  



Washington  for  ten  years,  she  still  had  all  her  friends  from  when  she  was  18,  her  



                                                                                   

children's aunts lived in Washington, she gave birth to two of her children there, and she  



had obtained a medical assistant license in Washington that she could renew after taking  



                                                                                                                                     

classes.    Thus,  she  argues  it  was  clear  error  for  the  court  to  find  that  she  had  no  



                                                                              

substantial ties to Washington.  But even if this specific finding was clearly erroneous,  



in  the  larger  context  this  error  was  harmless  and  does  not  undermine  the  abundant  



                                    

support the record  offers for the court's ultimate finding that Mengisteab's primary  



purpose for moving was to undermine a relationship between Saul and Oates, especially  



                                                                                                                        

considering  Mengisteab  had  spent  the  five  most  recent  years  of  her  life  living  and  



                                                                          -9-                                                                    7267
  


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

                                                                                        

working in Anchorage. We conclude the superior court did not clearly err in finding that  



                        

Mengisteab's  move  was  primarily  motivated  by  a  desire  to  interfere  with  Oates's  



visitation and ability to parent.  



                     More  broadly,  Mengisteab  suggests  that  the  superior  court's  finding  



                                                        

impermissibly restricted where she could live with her children and her family.  We have  



                                                                                                                          20  

held that it would be error for a trial court to restrict where a parent can live.                                            A trial  



                                                                                               

court does, however, have the authority to determine where a child will live by granting  



                                                                                                                        

custody to a parent remaining in Alaska, so long as that determination is in the best  



                                                                                  

interests of the child.  In this case, the superior court clearly stated in the November 2014  



                                                                                            

custody modification hearing that it could not "order Ms. Mengisteab to be back.                                                   But  



                                                                                    

[it could] order [Saul] to be back." This demonstrates that the court correctly applied this  



                                                                                                   

aspect of our case law, attempting to use its order to effectuate the best interests of Saul,  



                                                                  

not to control the location of Mengisteab. The superior court's finding that Mengisteab's  



                                                        

move was primarily motivated by a desire to frustrate visitation and its resulting grant  



                                

of custody to Oates may have restricted where Mengisteab could live with Saul, but it did  



not place any impermissible restrictions on her ability to relocate.  



                                                                                            

                     2.	        It was legal error not to conduct a symmetrical analysis of the  

                                potential effect on continuity and stability in Saul's life.  



                                                                                                                    

                     Mengisteab argues that "[r]emoving [Saul] from his mother and brother[]s  



                                                                                                   

would have been traumatic."  She asserts that this is "not in the best interest of [Saul] and  



would have caused severe separation anxiety."  In support, she claims that Saul had  



                                                                              

"fully lived with [her] since the day he was born" and "[a]t the time of the court decision  



                                                                                                                 

[Saul] was not even 2 yet and hadn't had contact with his father in over 9 months."  She  



adds that "[Saul] is well bonded" to his two brothers, that the court "awarded [her] full  



           20  

                                                                              

                     See Moeller-Prokosch I, 27 P.3d at 317 ("We conclude that the trial court  

                                                                                                                                   

does not have the authority to place restrictions on a parent's ability to relocate . . . .").  



                                                                 -10-	                                                               7267  


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

physical custody," and that her "extended family love[s] [Saul] and cares for him."  We  



                                            

agree with Mengisteab that the court erred in failing to adequately consider the effect  



                                            

living in Alaska without his mother and siblings would have on continuity and stability  



in Saul's life.  



                     A symmetrical analysis does not require detailed parallel findings on every  



                               21  

best interests factor.             In determining a child's best interests, "the superior court need  



                                                                                                

not mention each factor by name; it is sufficient if the court's findings provide 'a clear  



                                                   

indication of the factors [that the court] considered important in exercising its discretion  



                                                                                                                    22  

or allows us to glean from the record what considerations were involved.' "                                              And the  



                                                                              

court  may  give  enhanced  attention  to  a  factor  it  considers  particularly  relevant  to  a  



                                                                                                                    

child's best interests, as long as it does not assign "disproportionate weight to particular  



                                               23  

factors while ignoring others."                    



                     Despite this flexibility, in the Moeller-Prokosch line of cases we expressed  

                                                                                                         



particular concern that the court conduct a symmetrical analysis with regard to a child's  



                                                       24  

                                                                                                  

relational and geographical stability.                     In Moeller-Prokosch III , while we acknowledged  



                                                                        

that in its best interests analysis "[t]he superior court did recognize that [the child] would  



                                                                

be devastated if he had to move to Florida away from [his father]," we concluded that the  



          21         See Rego, 259 P.3d at 455 ("While the superior court's analysis does not  



detail every aspect of [the child's] future in Alaska and in New Jersey, the court gives  

                    

sufficiently detailed and 'symmetric consideration' to [the child's] experience if [the  

                                        

father] took him to New Jersey or relocated to New Jersey without him.").  



          22  

                                                                                                                      

                      Caroline J. v. Theodore J., 354 P.3d 1085, 1092 (Alaska 2015) (alteration  

in original) (quoting Rosenblum v. Perales , 303 P.3d 500, 504 (Alaska 2013)).  



          23  

                                                                                         

                     Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (quoting  

Evans v. Evans , 869 P.2d 478, 479-80 (Alaska 1994)).  



          24         See Moeller-Prokosch III, 99 P.3d 531, 535 (Alaska 2004).  



                                                               -11-                                                          7267
  


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

                                            

court erred because it "did not discuss the corresponding effect on [the child] if he had  



                                                                         25 

                                                                             In the parent relocation context,  

to stay in Alaska after [his mother] moved to Florida." 



we  also  warned  that  a  "continuity  test  centered  entirely  on  the  child's  geographical  



stability  would  always  favor  placing  the  child  with  the  non-moving  parent,"  and  



                                                                                          26  

                                                                                              We explained that  

instructed the court to also consider relational aspects of stability.  



                                                                                    

"the impact of separation is . . . properly considered as part of the stability analysis under  

                                                                              27  which requires the trial court  

the fifth statutory factor" provided in AS 25.24.150(c)(5),                        



to consider "the length of time the child has lived in a stable, satisfactory environment  

                                                               



and the desirability of maintaining continuity."  This stability analysis, we explained,  



"requires symmetric consideration of the consequences to [the child] both if [the moving  

parent] leaves with him and if [the moving parent] leaves without him.' "28  



                   Consequently,  the  superior  court  here  was  required  to  evaluate  and  



symmetrically analyze the best interest factors clearly affected by Mengisteab's move,  

                                                                                                              29  The  

especially the stability factor singled out in the Moeller-Prokosch line of cases. 



court's February 2014 order, which was incorporated by reference into its November  



         25       Id.  In  Moeller-Prokosch III , we characterized the court's error as abuse  



of  discretion.    Id.    However,  as  discussed  further  below,  we  also  explained  that  

AS 25.25.150(c)(5) "requires" and "commands" a comprehensive inquiry into stability  

                                                                                            

and continuity, with no room for discretion to entirely forgo a symmetrical analysis.  

Id. at 534-35.  Accordingly, while a custody award is subject to judicial discretion and  

                                                    

reviewed for abuse thereof, it is legal error not to conduct the required comprehensive  

and symmetrical stability analysis.  



         26       Id. at 535 (quoting Meier v. Cloud , 34 P.3d 1274, 1279 (Alaska 2001)).  



         27       Id. at 535 n.17.  



         28       Id. at 536.  



         29       Id. at 534-35.  



                                                         -12-                                                   7267
  


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

2014 order, made specific findings about each of the statutorily required best interest  



factors.  With respect to most of these factors, it was acceptable for the court in its  



November order to rely on its prior best interests findings because the record gives no  



clear indication that they changed in the eight months between February and November  

                                                              30  We understand the trial court's omission  

or in light of Mengisteab's illegitimate move.                                              



of  these  factors  as  an  indication  that  it  considered  them  largely  unchanged,  a  

consideration we can "glean from the record."31  



                   But  Mengisteab's  move  clearly  had  potential  to  affect  continuity  and  

                                                                                                    

                               32  The superior court never explicitly discussed this factor or the  

stability in Saul's life.                                                                                        



effect that separating Saul from his mother were she to remain in Washington would  



have  on  him  as  required  by  our  Moeller-Prokosch  decisions.    Saul  had  been  in  



Mengisteab's primary physical custody from birth until the court's November 2014 order  



                                                                                    

was issued.  In February 2014 the court gave Mengisteab  custody of Saul primarily  



                                                                                                                     

because stability and continuity in Saul's life favored keeping him with Mengisteab.  By  



November   2014   Oates   and   Saul   were   largely   strangers,   as   the   superior   court  



                                 

acknowledged when it ordered Skype visits between Saul and Oates before their planned  



                                                                   

visitation, so that Saul would be familiar with Oates when Oates flew to Seattle and  



removed him from Mengisteab's physical custody.  



         30        The record supports that in November 2014 Saul still had no special needs,  



the  child's  preference  regarding  custody  remained  inapplicable,  both  parent-child  

relationships  remained  loving,  and  there  was  no  substantiated  evidence  of  domestic  

violence, neglect, or substance abuse. 



         31         Caroline J. v. Theodore J., 354 P.3d 1085, 1092 (Alaska 2015) (quoting     



Rosenblum v. Perales , 303 P.3d 500, 504 (Alaska 2013)).  



         32        See AS 25.24.150(c)(5).  



                                                         -13-                                                    7267
  


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

                   The record does not indicate how the court's position on this factor changed  



                                                                                                 

since February 2014 or how the court weighed it relative to other factors in modifying  



                                                                                   

custody. The only clues to the superior court's reasoning on this issue are its abbreviated  



November 2014 best interests analysis, its February 2014 best interests analysis, and  



                                                                                                 

testimony from various hearings. This information is insufficient for determining the  



court's position on this factor.  As we have explained previously, the absence of any  



discussion of the impact on the child of separation from the out-of-state parent raises  



                                                                                                  

some question whether the best interests analysis was based on the assumption that the  



                                                             33                                                            34  

                                                                 To ignore this relational facet of stability 

separation would take place, as we require. 



                                                          

ignores both the primary concern that a symmetrical analysis is intended to address and  



an important component of the best interests analysis in this case.  



                                                                                       

                   We recognize that the court found that if Saul were "left in [his] mother's  



primary  custody  in  Washington,  .  .  .  [Mengisteab]  would  continue  to  interfere  with  



                                                                                                                  

[Oates's] access and parenting of [Saul]."  We have also previously explained that "[i]t  



                                                                 

is essential to have a custodial parent willing to foster an open relationship with the other  



                                                                                                                  35 

                                                                                                                      Even  

parent when a great distance separates the child[] from the non-custodial parent." 



                                                                                                             36 

                                                                                                                The trial  

so, the trial court may not rely on one factor to the exclusion of all others. 



          33       See Moeller-Prokosch III,  99 P.3d 531, 535 (Alaska 2004).  



          34       See  Barrett  v.  Alguire,  35  P.3d  1,  9  (Alaska  2001)  ("The  trial  court's  



consideration of the stability of the children's environment in a custody modification  

case can encompass a multitude of factors, including, but not limited to, the relationship  

                                                                                                    

with the custodial parent, the home provided by the custodial parent, the children's  

school, the community of friends and family, the cultural community, and the children's  

relationship with the non-custodial parent.  It also includes stability of place.").  



          35       Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005).  



          36  

                                                                  

                   See Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (citing  

                                                                                                          (continued...)  



                                                            -14-                                                      7267
  


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

                

court was required to consider the potential consequences to Saul both if he were to live  



                                                                                                               37 

                                                                                                                  and it was  

in Washington with Mengisteab and if he were to live in Alaska without her, 



legal error not to do so.  



                           

                                                                 

                    We assume, but do not know, that Mengisteab now resides in Alaska.  We  



                                                                                                            

also are aware that considerations of stability and continuity in Saul's life may well have  



                                                       

changed since the last hearing.  On remand, provided that Mengisteab still wishes to  



                                                           

move, the superior court must conduct a symmetrical best interests analysis, including  



                                                                                                      

full consideration of the effect separating Saul from his mother would have on continuity  



                                                 

and stability in his life were she to ultimately move to, or remain in, Washington.  The  



court may take additional evidence as necessary to conduct this symmetrical analysis.  



          B.	       Mengisteab's Other Claims Of Error  



                                                                                      

                    1.	       The superior court did not clearly err in finding there was no  

                                                                                       

                              substantiated evidence of substance abuse in Oates's household.  



                    Mengisteab argues that the superior court erred with regard to "[s]afety  



                                             

concerns involving drug and alcohol use in [the] father[']s home."  As part of its best  



                                                                                                             38  

interests analysis, the court should consider evidence of substance abuse.                                       However,  



                                                                                                                              39  

                                                                                                  

"the scope of [this] inquiry is limited to facts directly affecting the child's well-being." 



                                                      

In its February 2014 order the court found that there was no evidence of substance abuse  



          36        (...continued)
  



Evans v. Evans , 869 P.2d 478, 479-80).
  



          37        Cf.  Moeller-Prokosch III , 99 P.3d at 535-36.  



          38        See AS 25.24.150(c)(8).  



          39        S.N.E. v. R.L.B., 699  P.2d  875, 878 (Alaska 1985); see AS 25.24.150(c)(8)  



(providing that  the best interests analysis should consider "evidence that substance abuse  

by either parent or other members of the household directly affects the emotional or  

physical well-being of the child"); AS 25.24.150(d) ("In awarding custody the court may  

                                   

consider only those facts that directly affect the well-being of the child.").  



                                                             -15-	                                                       7267
  


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

substantiated by a preponderance of the evidence, and this finding is supported by the  



                                          

record.  Oates testified that he "never had any abuse problems."  Oates's wife testified  



                     

that  she  had  used  substances  in  the  past  but  denied  an  abuse  problem.    During  the  



                                                                                                           

November 2014 hearing, the court pointed out that the only evidence supporting that  



there was substance abuse by Oates, his wife, or anyone else connected with Oates's  



                                                                                       

household was Mengisteab's own allegations. The court's factual findings, including its  



credibility findings - especially when the court makes those findings based on oral  



                                                              40  

                                                                                                   

testimony - are due particular deference.                         Based on this record, we conclude that the  



court did not clearly err in finding there was no substantiated evidence of substance  



abuse in Oates's household.  



                    2.	       The superior court did not abuse its discretion in calculating  

                              child support.  



                                                                                

                    Mengisteab appears to argue that Oates failed to pay child support during  



                        

2013 and owes her $6,000 in back child support payments.  Mengisteab also claims that  



                  

"Oates has been at the same job on the slope making over $130,000 a year [and] had the  



                                                                   

ability to financially support [their] son but refused to."  It appears that she is arguing  



that the court erred by failing to address Oates's failure to pay child support from the  



                                                                                                 

time of Saul's birth even though he had the ability to pay because of his job on the North  



Slope.  



                    But the court did not abuse its discretion by not addressing the effective  



                         

date of Oates's child support obligation or his potential responsibility for back child  



                                                                             

support at the February 2014 trial or the November 2014 custody hearing.  The issue of  



                                                                                                

custody and visitation took priority during those hearings, and the court signaled that  



child support would be addressed separately.  The court followed through, addressing  



          40  

                                                                                 

                    Stephanie F. v. George C., 270 P.3d 737, 745 (Alaska 2012) (citing Millette  

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



                                                             -16-                                                            7267  


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

child support in a separate order dated the same day as its November 2014 custody  

modification order.41  The court's prioritization and timing of its decisions in this regard  



were not an abuse of discretion.42  



                                                                                         

                     3.	       The  superior  court  did  not  err  in  establishing  visitation and  

                               addressing associated costs.  



                                                                                           

                     Mengisteab  claims  that  the  superior  court  erred  with  regard  to  the  



"[v]isitation   schedule   and   costs   associated   with   them"   but   does   not   elaborate.  



                                                                                                   

Mengisteab's  statement  appears  most  relevant  to  the  court's  November  2014  oral  



                      

findings and  written order in which it determined that Oates "shall have reasonable  



                                                                                        

phone and Skype/Facetime visits with [Saul]," and "shall elect 3 visits between now and  



                   

next May[] when he can fly to Seattle and pick [Saul] up for a visit on his time off from  



                                                                                

the Slope."  The court also ordered that Oates could credit half of the direct transit costs  



                                      

of the visits toward his child support obligation.  In addition, the court found that if  



                                                                                                  

Mengisteab moved back to Alaska with Saul before the court's July 15, 2015 deadline,  



          41         Mengisteab has not formally appealed the superior court's child support  



order.    However,  Mengisteab  does  list  "Child  support"  in  her  statement  of  issues  

                                                                                                      

presented for review.  Because the child support order was entered on the same day as  

                                                                                            

the custody modification order - November 21, 2014 - it is possible that Mengisteab  

                                        

meant to include the child support order in her reference to the court's "final judgment  

                                                                                                             

entered on November 21, 2014" in her notice of appeal.  That said, Mengisteab's brief  

                                                                                                

does not discuss the issue of child support beyond repeated conclusory statements, and  

the child support order is not present in either Mengisteab's excerpt of record or the  

record  as  a  whole.    On  appeal,  "issues  not  briefed  or  only  cursorily  briefed  are  

considered waived."  Daggett v. Feeney, 397 P.3d 297, 304 n.19 (Alaska 2017) (citing  

                                                                                      

Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)).  To the extent Mengisteab meant  

                             

to challenge the separate child support order, her challenge is waived.  



          42  

                                                                              

                     See, e.g., Kailukiak v. State, 959 P.2d 771, 775 (Alaska App. 1998) ("Trial  

                                                                                                            

judges should, of course, be as free as possible to fashion procedures that expedite the  

                                                     

business of their courts and that satisfy the litigation needs of the parties appearing  

before them.").  



                                                               -17-	                                                        7267
  


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

then  the  February  2014  order,  which  accounted  for  daycare  arrangements  and  



Mengisteab's  work  schedule,  would  control  visitation.    The  February  2014  order  



outlined  a  visitation  schedule  that  would  accommodate  Oates's  schedule  as  a  slope  



worker and Mengisteab's work and daycare considerations.  In the November 2014  



                        

order, the court also tailored visitation to Mengisteab's potential geographical location  



                                                                                                           

and took into account the extra cost to Oates of visiting Saul in Washington. The court's  



decision was not an abuse of discretion.  



                   4.       The superior court's conduct did not demonstrate judicial bias.  



                                                              

                   Mengisteab finally argues that the superior court was biased and prejudiced  



                                                                               

against her, and that the judge had a conflict of interest.  She raises this argument for the  



first  time  on  appeal,  which  would  typically  be  grounds  to  consider  the  argument  



           43  

waived.        However, in  Greenway v. Heathcott, we explained that it is unclear "what  



must be done to preserve for review a claim of judicial bias, if, as here, there has been  



no motion for recusal, disqualification, or new trial" - that is, where there was no  

                                                                     44  In that case, although we ultimately  

opportunity for the trial court to address the issue. 



found the claims of bias unwarranted, we assumed, without deciding, that the bias issues  



                                                            45  

raised were properly preserved for review.                      We make the same assumption here.  



                                                                             

                   "A judge must recuse himself or herself if there is bias. If the appearance  



of bias is involved, we have held that the judge should give weight to preserving the  



                                        46 

                                                                                                               

appearance  of  impartiality."              "We  review  de  novo  the  question  of  whether  a  judge  



         43        See Mellard v. Mellard, 168 P.3d 483, 489 (Alaska 2007).  



         44        294 P.3d 1056, 1063 (Alaska 2013).  



         45        Id. at 1063, 1066.  



         46        Id. at 1063 (footnotes omitted) (citing             Amidon v. State , 604 P.2d 575, 577- 



                                                                                                      (continued...)  



                                                          -18-                                                    7267
  


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

                                                                                                  47  

appears  biased,  which  is  assessed  under  an  objective  standard."                               However,  as  we  



                                           

explained in Greenway, it is not obvious what standard of review - de novo review or  



abuse of discretion review - applies when a claim of actual bias is first raised on appeal  



                                                                            48  

                                                                                Like in  Greenway, we need not  

and the trial court had no opportunity to address it. 



decide this issue here, as we would reach the same conclusion under either standard.  



                                                                                                        

                   Mengisteab claims the trial court was "extremely bias[ed] and prejudice[d]  



                                                                       

and extremely harsh [in] ignoring [her] evidence and coming up with [its] own findings."  



                                                                                                       

She further claims that the judge had a conflict of interest in this case because "he was  



                                                                             

the Judge in [her] son's father['s] case when [the  father] was arrested for a DUI in  



          49  

2009."        Finally, she asserts that the judge "brought up several times [that] 'he doesn't  



know how I got the Supreme Court to overturn his decision,' " and that he told her  



                                                                                                         50  

                                                                                                               Unlike  the  

lawyer,  "She's  rude,  I  don't  like  her  and  she  does  this  all  the  time." 



                                           

appellant in Greenway, who cited five specific incidents in the record which she argued  

                                                                            51 Mengisteab does not support her  

demonstrated judicial bias or the appearance of bias,                                                          



          46        (...continued)  



78 (Alaska 1979)).  



          47        Wells  v.  Barile,  358  P.3d  583,  588  (Alaska  2015)  (quoting  Sagers  v.  



Sackinger, 318 P.3d 860, 863 (Alaska 2014)).  



          48        Greenway, 294 P.3d at 1062-63.  



          49       Mengisteab does not specify, and the record does not indicate, which case   



this refers to.  



          50       Mengisteab does not explain which supreme court decision she is referring  

                                                                                             

to, and the record does not indicate when she appeared before this court in the past.  

Mengisteab also does not explain what conduct the statement "she does this all the time"  

                                                                                         

refers to.  



          51        Greenway, 294 P.3d at 1061-62, 1064-67.  



                                                            -19-                                                       7267
  


----------------------- Page 20-----------------------

contention with any citations to the record.  In our review of the record, we found no  



incidents matching Mengisteab's description.  On one occasion, the trial court did tell  



                                              

Mengisteab's attorney that it repeatedly "had to admonish [Mengisteab] to take her turn  



                                              

and she's just unwilling to do so," which bears some resemblance to Mengisteab's claim  



        

that  the  court  told  her  lawyer  "she  does  this  all  the  time."  However,  it  does  not  



                                                                                                                     

reasonably appear to reflect any personal bias against Mengisteab, does not suggest the  



trial judge considered Mengisteab rude, and does not indicate the judge disliked her  



personally.  Rather, the court's statement may at most reflect simple frustration with  



                                                       

Mengisteab's tendency - evident from the record - to interrupt the court, Oates, and  



                                                                                          

her own counsel during court proceedings.  Our review of the record also did not reveal  



                                                                                                           

any instances of the court ignoring evidence, and as discussed above, the court's factual  



                                                                                                                

findings were supported by the record and not clearly erroneous. Finally, even assuming  



                                                                                         

that the judge was the presiding judge in a prior DUI case involving Mengisteab's son's  



                                                                                                                                   52  

                                                                

father, this does not by itself give rise to a conflict of interest that would require recusal. 



                     Having reviewed the record and trial proceedings, we conclude that there  

                                                                                                   



is no indication of any bias or prejudice.  The record instead indicates that the trial judge  

                                                                                                                 



dealt  fairly  and  courteously  with  both  parties,  and  gave  Mengisteab  reasonable  



opportunities to explain her claims and evidentiary objections.  Mengisteab's allegations  

                                                                                                



appear to reflect only her general dissatisfaction with the trial court's rulings. As we have  

                                                                                                         



explained, allegations of judicial bias are unfounded where they are "simply another  



          52        See Lacher v. Lacher, 993 P.2d 413, 420-21 (Alaska 1999) (holding that  



a judge's involvement in past cases with negative outcome for the appellant personally  

                

did not require recusal).  



                                                               -20-                                                          7267
  


----------------------- Page 21-----------------------

iteration  of  [the  appellant's]  own  discontent  with  the  court's  substantive  rulings."53  

                         



Accordingly, we conclude that Mengisteab's contentions are unwarranted.  



V.        CONCLUSION  

                                    



                   We conclude that the superior court's failure to conduct a symmetrical best  

                                                                                                    



interests analysis was legal error and REMAND for a symmetrical best interests analysis  

                          



consistent with this opinion.  We AFFIRM the superior court's decision in all other  

                                                                                                



respects.   



          53        Ward v. Urling        , 167 P.3d 48, 58 (Alaska 2007); see also Greenway, 294  



P.3d  at  1063("[E]ven  incorrect  rulings  against  a  party  do  not  show  bias  in  and  of  

themselves.").  



                                                            -21-                                                      7267
  

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