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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Daves v. McKinley (8/10/2018) sp-7269

Daves v. McKinley (8/10/2018) sp-7269

           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  

                                                                                                                           

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



ALEXANDER  S.  DAVES,                                            )  

                                                                 )          Supreme  Court  No.  S-16751  

                                Appellant,                       )  

                                                                                                                                      

                                                                 )          Superior Court No. 3AN-08-07051 CI  

                      v.                                         )  

                                                                                                

                                                                 )         O P I N I O N  

                                                    

ALEXANDREA MCKINLEY and                                          )  

                      

KATHRYN LEDLOW,                                                                                                   

                                                                 )         No. 7269 - August 10, 2018  

                                                                 )  

                                Appellees.                       )  

                                                                 )  



                                                                                                              

                                   

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

                                                                                                     

                      Judicial District, Anchorage, William F. Morse, Judge.  



                                                                                                              

                      Appearances:  Alexander Daves, pro se, Youngstown, Ohio,  

                                                                                                

                      Appellant.                    No        appearance                 by        Appellees  

                                                                                 

                      Alexandrea McKinley and Kathryn Ledlow.  



                                                                                                           

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

                                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                              

                      Thesuperior court awarded custody ofachild toher maternal grandmother.  



                                                                                                                                 

When the father later moved for a modification of custody, the court denied the motion  



                                                                                                                                        

on the ground that there had been no substantial change in circumstances. On appeal the  



                                                                                                                                         

father argues that he should not have been required to show a substantial change in  


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circumstances becausetheaward ofcustodyto thegrandmotherhad been only temporary  



                                                                              

and he remained entitled to the parental preference.  



                                                                                                                            

                    We concludethat thefather'sargument has merit. The superior court's oral  



                                                                                                                                  

remarks and written order granting custody to the grandmother, when read together,  



                                                                                                                       

indicate an intent that there would also be a transitional period during which the parties  



                                                                                                                             

would see how the child adapted to spending more time with her father, leaving open the  



                                                                                                                           

possibility that the transition would result in permanent custody with the father.  We  



                                                                                                                            

conclude that in the absence of a grant of permanent custody to the grandmother, the  



                                                                                                                          

father remains entitled to the parental preference, and the grandmother continues to have  



                                                                                                 

the burden of proving that the preference should be overcome.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                            

                    Alexander Daves and Alexandrea McKinley met in Anchorage in the fall  



                                                                                                                            

of 2004. They dated for approximately a year and briefly lived together in late 2005 and  



                                                                                                                              

early 2006, first with her parents and then with his.  They separated before the birth of  



                                                       

their daughter, V., in October 2006.  



                                                                                                                       

                    At first Alexandrea was V.'s primary caregiver, and Alexander had regular  



                                                                                                                             

visits. In April 2008, prompted by a dispute over visitation, Alexander filed a motion for  



                                                                                                                     

interim custody.   In August the court entered a custody order based on the parties'  



                                                                                                                     

agreement that they would share legal custody, Alexandrea would have primary physical  



                                                                                                                    

custody, and Alexander would have weekend visitation.  The parties largely followed  



                                                                      

this schedule over the next several years, with some interruptions due to Alexandrea's  



                                                             

temporary moves with V. to Metlakatla.  



                                                                                                                               

                    In 2011 Alexander was admitted to medical school in Pennsylvania.  In a  



custody order that June the superior court continued the prior custody arrangement -  



                                                                                                                           

joint legal custody and primary physical custody with Alexandrea - but ordered that  



                                                              -2-                                                        7269
  


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Alexander should have "reasonable visitation as his studies and the parties' finances                                                                                   



permit," as well as "at least twice weekly phone contact."                                                                    



                             A series of custody                          orders in             2013 recognized                        the   parties'   continuing  



difficulties with visitation: Alexander alleged that Alexandrea was refusing to allow his                                                                                            



                                                                                                                                                                                        1  

visits and was leaving V. largely in the care of Kathryn Ledlow, Alexandrea's mother.                                                                                                       



In September 2013 the court ordered a custody investigation.  The report did not make  

                                                                                                                                                                               



any recommendations because of the investigator's limited contact with the parties, but  

                                                                                                                                                                                    



among  its  conclusions  was  that  "[i]t  appears  likely  that  the  maternal  grandmother  

                                                                                                                                                              



[Kathryn] has been the person providing much of [V.'s] care in Anchorage."   The  

                                                                                                                                                                                



superior court issued an order noting the report's completion and advising the parties that  

                                                                                                                                                                                   



it would take no action on the report unless one of them moved to modify custody;  

                                                                                                                               



neither one did.  

                                    



                             The parties appeared to get along with little judicial involvement over the  

                                                                                                                                                                                    



next three years.  Alexander had little contact with Alexandrea; his visits with V. were  

                                                                                                                                                                                



facilitated through Kathryn.  

                                                               



              B.             Proceedings  



                             Two custody proceedings in 2016 and 2017 are central to this appeal.  

                                                                                                                                                                    



                             1.            July 2016 order on Alexander's motion to modify custody  

                                                                                                                                                              



                             In April 2016 Alexander filed a motion seeking primary physical custody  

                                                                                                                                                                          



of V.  He identified several significant changes in his life:  He was moving to Ohio for  

                                                                                                                                                                                    



his medical residency, expecting to live there for at least three years, and he and his  

                                                                                                                                                                                    



girlfriend intended to buy a house.  He also alleged that there had been "new [criminal]  

                                                                                                                                                                     



charges against [Alexandrea] which might be an indicator of her stability." The superior  

                                                                                                                                                                         



               1             Although   Kathryn   did   not   formally   intervene   in   this   case,   we   have  



identified her as an appellee based on her participation in the trial court and role as a                                                                                               

custodial non-parent.   



                                                                                          -3-                                                                                  7269
  


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court found these allegations inadequate to show a substantial change in circumstances  



                                                                                                                     

affecting V.'sbest interests, but,afterAlexanderfiledasupplemental affidavitexpanding  



                                                                                                                                  

on his allegations and alleging that Alexandrea had been leaving V.'s care entirely to  



                                                                                   

Kathryn, the court scheduled an evidentiary hearing.  



                                                                                                                                      

                    Alexander and Kathryn appeared at the hearing, but Alexandrea did not.  



                                                                                                                             

No one had a lawyer. Kathryn testified that V. had been living with her for the past three  



                                                                                                                                

years and that she did not know Alexandrea's present whereabouts. She testified that she  



                                                                                                                        

would not allow Alexandrea to live with her because of her drinking, though "[w]hen  



                                                                                                                                

she's doing okay, I'll let her visit with [V.]." According to Kathryn, Alexandrea had not  



                                                                                                                                 

spent a night with V. in three years; she testified that Alexandrea had "been around" -  



                                                                                                                             

"visiting" the child in Kathryn's home - "probably about 35, 40 percent" of the time.  



                                                                                                                       

                    Alexander testified abouthis most recentin-person visits withV.,including  



                                                                                                                              

four overnights a week during a month-long return to Alaska in October 2014 and a two- 



                                                                                                                             

week  visit  on  the  east  coast  in  the  spring  of  2015.                        He  testified  that  he  had  been  



                                                                                                                            

exercising his right to weekly visitation via Skype. He also testified about his new home,  



                                                                                                              

explaining that he was ready for V. to move in with him permanently.  



                                                                                                                        

                    The court noted its assumption that V. had "bonded greatly with" Kathryn  



                                                                                                                        

because  she  had  been  "essentially  the  primary  caregiver  for  three  years";  Kathryn  



                                                                                                                                 

interjected that it had actually been for nine-year-old V.'s entire life, other than about six  



                                                                                                                             

months when she was in Metlakatla with Alexandrea. The court asked Alexander "why  



                                                                                                                      

[it]  should  .  .  .  switch  this  living  arrangement  given  that  [V.]  has  lived  with  her  



                                                                                                                         

grandmother essentially her entire life."   Alexander responded that all prior custody  



                                                                                                                               

orders and agreements had been based on the misperception that V. lived with her  



                                                                                                                           

mother.  The court acknowledged that Alexandrea had misrepresented her role in her  



                                                                                                                                

child's life and that the court had been unaware that Kathryn had always been the  



                                                                                                          

primary caregiver.  The court agreed this was "a little bit troubling."  



                                                                -4-                                                         7269
  


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

                                                                                                                               

                    The  court  also  noted  its  concern,  however,  that  moving  V.  from  her  



                                                                                                                                 

grandmother's  home  to  live  with  a  father  she  had  rarely  seen  in  person  would  be  



                                                                                                                             

difficult, especially if the change were made abruptly.  The court observed that "a more  



                                                                                                                

prudent path for [V.] is to have her spend more time in Ohio during the summers and  



                                                                                                                                  

keep open the possibility that she becomes more comfortable with the arrangement in  



                                                                                                                                

Ohio and more comfortable with the idea of living with [Alexander] there during the  



                                                                                                                          

school year."  The court said that V. "deserves a transition, at a minimum, and should  



                                                                                                                     

spend more time with [Alexander] during the summer in preparation for the possibility  



                                                                                                                                

of spending the school year there."   But the court cautioned it was possible that the  



                                                                                                                                

"transition, not the transition, but the switch, to her living [with Alexander] during the  



                                                                                                                              

school year never comes about because she is uncomfortable with that prospect."  The  



                                                                                                                               

court disclaimed any suggestion "that there's something wrong with [Alexander], or [his  



                                                                                                                           

girlfriend] or with the home that [they] would create for [V.]"; the court was "more  



                                                                                                          

concerned with the child being not capable of making the transition very easily."  The  



                                                                                                                            

court said it would therefore "prefer to revisit the living arrangement after we see [V.'s]  



                                                                                                                     

response to Ohio and when she gets a tiny bit older.  And prepare her for the possibility  



                                                         

that she's [going to] move to Ohio."  



                                                                                                                                  

                    The discussion turned to the logistics of V.'s travel.   The court said it  



                                                                                                                             

"would  like  to  .  .  .  have  [V.]  spend  the  remainder  of  the  summer  in  Ohio  with  



                                                                                                                              

[Alexander]" and asked Alexander and Kathryn to work out the details, which they  



                                                                                                                               

agreed to do.  The court concluded that it "would explore a year from now - well, like  



                                       

next May, sort of revisit this."  



                                                                                                                             

                    The court's written order, dated July 8, 2016, was entitled "First Final 2016  



                                                                                                                     

Child Custody Order."  In it the court discussed the standard applicable to permanent  



                                                                -5-                                                         7269
  


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

                                                                                                                                                             2  

grants of custody to non-parents                                                                                                                                  and found "by clear and convincing evidence that it                                                                                                                                                                                                   



would be detrimental to [V.] to be in the primary physical custody of either of her                                                                                                                                                                                                                                                                                                                           



parents, although for very different reasons."                                                                                                                                                                                  The court found that Alexandrea was                                                                                                                                        



"currently unwilling and probably incapable of parenting [V.]" because of her alcohol   



abuse.  As for Alexander, the court did not find that he was unable to parent; rather, it   



 found that "[i]t would be detrimental to [V.] to reside with [Alexander] at this time . . .                                                                                                                                                                                                                                                                                                                        



because he has not been playing that role for some years because of his absence from                                                                                                                                                                                                                                                                                                                   



Alaska while he pursues medical training."                                                                                                                                                                         The court noted that it "would begin that                                                                                                                                                



transition [to Alexander's custody] now" if Alexander were "in Anchorage so that the                                                                                                                                                                                                                                                                                                                            



Court could reintroduce [V.] to life in her father's home more gradually."                                                                                                                                                                                                                                                                                                       "But the  



prospect of simply sending [V.] to [Alexander] and removing her from [Kathryn], the                                                                                                                                                                                                                                                                                                                             



 sole source of stability and dependable care that she has known, would be damaging to                                                                                                                                                                                                                                                                                                                                



her." Alexander subsequently filed two documents which were construed as motions to                                                                                                                                                                                                                                                                                                                                   



reconsider and were denied.                                                                                                              Alexander did not appeal the July 2016 order.                                                                                                                                                       



                                                                2.                              June 2017 order on Alexander's motion to modify custody                                                                                                                                                                                                            



                                                                Alexander filed additional motions in December 2016, seeking physical                                                                                                                                                                                                                                                 



custody of V. and an order for a custody investigation.                                                                                                                                                                                                                       The superior court ordered a                                                                      



limited custody investigation in March 2017, and the report was completed in May. The                                                                                                                                                                                                                                                                                                                      



report made no recommendations about custody.                                                                                                                                                                                                



                                                                In June the court issued an order denying Alexander's December motion.                                                                                                                                                                                                                                                                                              

                                                                                                                     3  the court determined that Alexander was no longer entitled to  

Citing  Abby D. v. Sue Y.                                                                                          ,                                                                                                                                                                                                                                                                                                  



                                2                               See Evans v. McTaggart                                                                                               , 88 P.3d 1078 (Alaska 2004);                                                                                                                   Turner v. Pannick                                                                       ,  



 540 P.2d 1051 (Alaska 1975).                                                                                                                      



                                3                                378 P.3d 388, 392 (Alaska 2016) ("In its initial resolution of a custody  

                                                                                                                                                                                                                                                                                                                                                                                         

dispute between a biological parent and any third party, including a grandparent, the  

                                                                                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                                                                                          -6-                                                                                                                                                                                           7269
  


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

a biological parent's preference because the court had awarded Kathryn permanent                                                                                                                                              



custody in its July 2016 order, and that Alexander failed to meet his burden of proving                                                                                                                                                



there had been a substantial change in circumstances justifying a hearing on whether the                                                                                                                                                             



existing arrangementshouldbemodified. ThecourtrejectedAlexander's                                                                                                                                                 contention that  



the court had promised to revisit custody in May 2017, concluding that it had agreed                                                                                                                                                      



only to revisit the logistics of the 2017 summer visit.                                                                                                         The court found that its earlier                                 



comments did not "warrant further review of custody."                                                                                 



                                       Alexander timely appealed the June 2017 order.                                                                              



III.                STANDARD OF REVIEW                                     

                                       The superior court has broad discretion in custody awards.                                                                                                                    4  In this case,  



                                                                                                                                                                                                                                               

the superior court's 2017 denial of Alexander's motion for modification of custody turns  



                                                                                                                                                                                                                                                  

on interpretation of the July 2016 custody order.   We recognize that "the court that  



                                                                                                                                                                                                                                                    

entered the original order is in the best position to interpret its own order," and we  



                                                                                                                                                                                                                                                      

therefore  "review  the  superior  court's  interpretation  of  its  own  order  for  abuse  of  



                                  5  

discretion."   



                    3                  (...continued)  



                                                                                                                                                                                                                                                

court must prefer the biological parent. . . . But '[w]hen the non-parent has already been  

                                                                                                                                                                                                                         

granted permanentcustody, theparental preferencedrops out in subsequent modification  

                                                                                                                                                                                                                                                 

proceedings.' " (emphasis added) (second alteration in original) (quoting Evans, 88 P.3d  

                        

at 1085 n.32)).  



                    4                  Dara v. Gish, 404 P.3d 154, 159 (Alaska 2017).  

                                                                                                                                                                  



                    5                  Del Rosario v. Clare, 378 P.3d 380, 383-84 (Alaska 2016).  

                                                                                                                                                                                                  



                                                                                                                           -7-                                                                                                                 7269
  


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

IV.	         DISCUSSION  



                          Alexander raises a number of challenges on appeal to the permanent award  

                                                                                                                                                              

of V.'s  custody  to  Kathryn.6  

                                                                                                                                                                   

                                                              We do  not need to  reach  most of them, because we  



                                                                                                                                                                  

conclude,  for  the  reasons  that  follow,  that  the  custody  award  was  temporary  and  



                                                                                                      

Alexander remains entitled to the biological parent preference.  



                                                                                                                                                        

             A.	          It Was An Abuse of Discretion To Interpret The July 2016 Custody  

                                                                                                       

                          Order As An Order For Permanent Custody.  



                                                                                                                                                                   

                          "In its initialresolutionofacustody disputebetween abiological parent and  



                                                                                                                                                                        7  

                                                                                                                                                                           

any third party, including a grandparent, the court must prefer the biological parent." 



                                                                                                                                                                   

Under this preference, the biological parent prevails unless the non-parent shows "by  



                                                                                                                                                                

clear and convincing evidence that the parent is unfit or that the welfare of the child  



                                                                                                                8  

                                                                                                                                                           

requires the child to be in the custody of the non-parent."                                                         If the non-parent is granted  



                                                                                                                                     

permanent custody, however, then "the parental preference drops out in subsequent  



                                                      9  

                                                                                                                                                                    

modification proceedings."                                "At that point any modification motion is subject to the  



             6            In addition to challengingthecourt's application oftheparental                                                           preference,  



Alexander argues that the court's award of custody to Kathryn violated his constitutional                                                       

rights and the evidentiary rules and that he was entitled to a hearing on modification of                                                                             

custody under a "substantial change in circumstances" standard.                                              



             7            Abby D. , 378 P.3d at 392 (citing Turner, 540 P.2d at 1053-54).  

                                                                                                                                   



             8            Dara, 404 P.3d at 161 (quoting Osterkamp v. Stiles, 235 P.3d 178, 185  

                                                                                                                                                                  

(Alaska 2010)).  

                 



             9            Abby D. , 378 P.3d at 392 (quoting Evans v. McTaggart, 88 P.3d 1078, 1085  

                                                                                                                                                                

n.32 (Alaska 2004)).  

                           



                                                                                  -8-	                                                                          7269
  


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

usual test of AS 25.20.110(a), meaning that the custody decree will be modified only 'if                                                                                  



the court determines that a change in circumstances requires the modification of the                                                                                    



                                                                                                                                   10  

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



                                                                                                                                                                    

                           Alexander argues that the superior court erred in its June 2017 order when  



                                                                                                                                                                      

it failed to apply the biological parent preference and determined that Alexander now  



                                                                                                                                                               

bore the usual burden of a non-custodial parent moving to modify the existing custody  



                                                                                                            

arrangement.  We agree with Alexander's argument.  We have observed that "[c]ourts  



                                                                                                                                                        

should make clear whether a grant of nonparental custody is temporary or permanent,  



                                                                                                                                                                           11  

                                                                                                                                                                                

and ensure that they carefully warn a parent that a hearing may have the latter result." 



Having reviewed the hearing and the July 2016 order on Alexander's motion to modify  

                                                                                                                                                                



custody, we conclude that whatever the court's intent, it was not made clear to Alexander  

                                                                                                                                                          



that the court was then making a permanent grant of custody to Kathryn.  Alexander  

                                                                                                                                                         



couldreasonably believe that the court was making atemporary custody order that would  

                                                                                                                                                                  



be subject to de novo review in May 2017.  

                                                                            



                           We have faced similar issues in the past.  In Britt v. Britt the parties agreed  

                                                                                                                                                                  



as part of the initial custody decree that the grandparents would have custody of their  

                                                                                                                                                                     

child.12          After an evidentiary hearing six months later, the superior court denied the  

                                                                                                                                                                        

mother's motion that she be granted custody instead.13  On appeal the mother argued that  

                                                                                                                                                                        



the grandparents should have had the burden at the hearing of overcoming the Turner  

                                                                                                                                                                 



              10           Id.  (quoting  Hunter v. Conwell                              , 219 P.3d 191, 196 (Alaska 2009)).                       



              11           C.R.B. v. C.C., 959 P.2d 375, 381 n.12 (Alaska 1998), overruled on other  

                                                                                                                                                                    

grounds by Evans, 88 P.3d 1078.  

                                                        



              12           567 P.2d 308, 309 (Alaska 1977), overruled on other grounds by Evans,  

                                                                                                                                                                 

88 P.3d 1078.  

                  



              13           Id.  



                                                                                    -9-                                                                             7269
  


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

                                                          14  

biological parent preference,                                  as the prior award was only temporary; but the father                                             



argued that the prior award was permanent and the subsequent hearing was simply a                                                                                         



modification proceeding at which the moving party, here the mother, bore the burden of                                                                                   

            15    Although noting that both parties had apparently intended the initial award to  

proof.                                                                                                                                                                   



be permanent, our decision centered on the fact that the superior court, in making that  

                                                                                                                                                                     



award, had sua sponte ordered a six-month review "to see if there's been any changes  

                                                                                                               

in the status of either parent or the grandparents."16                                                     We held that because "the court  

                                                                                                                                                                  



indicated a desire to review the initial decision in six months without the necessity of any  

                                                                                                                                                                      



[motion for modification]," the order was best characterized as temporary rather than  

                                                                                                                                                                    



permanent, and the mother remained entitled to the Turner preference until a permanent  

                                                                                                                                                       

order was made.17  

                                      

                                                                                                                                         18  In that case the  

                           We reached a different conclusion in Abby D. v. Sue Y.                                                                                      

                                                                                                      



mother moved to modify custody nine months after a trial at which the superior court had  

                                                                                                                                                                      



awarded permanent custody to the grandparents; like the parent in Britt, the mother  

                                                                                                                                                              



argued that the prior award had been merely temporary and she remained entitled to the  

                                                                                                                                                                       

Turner  preference.19                         The  superior  court  rejected  her  argument  and  we  affirmed,  

                                                                                                                                                         



concluding that the superior court had properly applied the  Turner preference at the  

                                                                                                                                                                      



initial trial while making it clear that the resulting custody award was "permanent and  

                                                    



             14            See Turner v. Pannick                       , 540 P.2d 1051, 1055 (Alaska 1975).
                          



             15           Britt, 567 P.2d at 310.
  

                                                               



             16
  

                                       

                          Id. at 309-10.  



             17           Id.  at 310.   



             18  

                                                                        

                           378 P.3d 388 (Alaska 2016).  



             19           Id. at 391-92.  

                                       



                                                                                  -10-                                                                            7269
  


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

            20  

final."          We rejected the mother's suggested comparison to                                                    Britt, in which the superior         



court   had   expressly   scheduled   a   six-month   review   of   its  initial   custody   order;   we  



concluded that the superior court's observations in                                                Abby D.          that its award of custody to                      



the grandparents was "not written in stone" and "doesn't mean it has to happen forever"                                                                   

simply reflected the fact that permanent awards are subject to motions for modification.                                                                              21  



                          We conclude that this case is more analogous to Britt  than to Abby D.  

                                                                                                                                                                           



Although the July 2016 custody order applied the  Turner preference and made what  

                                                                                                                                                                



appeared to be a permanent award of custody to Kathryn, the proceedings leading up to  

                                                                                                                                                                      



that order and even some language of the order itself convince us it must be considered  

                                                                                                                                                     



temporary.  



                          Kathryn never sought to formally intervene in the case, nor did she file her  

                                                                                                                                                                           

                                                                                                                         22   The court's July 2016  

own motion for custody, as she may have been entitled to do.                                                                            

                                                                                                                   



custody order was prompted by Alexander's motion for modification of custody.  The  

                                                                                                                



court's first order on the motion assumed that it presented the usual custody dispute  

                                                                                                                                                           



between biological parents - that is, whether primary physical custody should remain  

                                                                                                                                                            



where the court assumed it was, with the child's mother, Alexandrea.  After Alexander  

                                                                                                                                                     



alleged that Alexandrea was actually not involved in V.'s care, the court's next order,  

                                                                                                                                                              



scheduling a hearing, referred not to the standard for granting permanent custody to a  

                                                                                                                                                                        

non-parent but rather to the standard for ordering non-parent visitation.23  Alexander had  

                                                                                                                                                                   



             20           Id.  at  393.  



             21           Id.  at  393-94.  



             22           See  Elton  H.  v.  Naomi  R.,  119  P.3d  969,  979  (Alaska  2005)  ("[A]  court  may  



award  custody  to  a  non-party  who  would  have  been entitled by  right  to  intervene  as  a  

party  in  the  custody  proceedings  pursuant  to  Alaska  Civil  Rule  24(a).").  



             23           The superior court quoted from Ross v. Bauman, 353 P.3d 816, 828-29  

                                                                                                                                                            

                                                                                                                                               (continued...)  



                                                                                 -11-                                                                           7269
  


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

not yet been advised that his motion could result in a permanent award of custody to                                                                                



Kathryn.   As we observed in                            Elton H. v. Naomi R.                     , "[a]warding custody to a non-party                



may implicate due process concerns when a party lacks notice that such an award is                                                                                  

being considered."                  24  



                          The evidentiary hearing is described in more detail above.  In brief, after  



it became clear that the court had been misled and that Kathryn, not Alexandrea, had  

                                                                                                                                                                 



actually been exercising primary custody of V. for years, the court's comments indicated  

                                                                                                                                                      



that  it  was  seriously  considering  a  gradual  transition  to  Alexander's  care  in  Ohio.  

                                                                                                                                                                         



Though wanting to avoid an "abrupt[]" change, the court noted "a more prudent path":  

                                                                                                                                                                         



"to have [V.] spend more time in Ohio during the summers and keep open the possibility  

                                                                                                                                                    



that she becomes more comfortable with the arrangement in Ohio and more comfortable  

                                                                                                                                                 



with the idea of living with [Alexander] there during the  school  year."   The court  

                                                                                                                                                             



reiterated several times that there would be an extended experimental period:   "[V.]  

                                                                                                                                                             



should spend more time with [Alexander] during the summer in preparation for the  

                                                                                                                                                                 



possibility of spending the school year there"; "to sort of explore her reaction to living  

                                                                                                                                                             



a long period of time in Ohio, I would prefer to see her . . . spend the remainder of the  

                                                                                                                                                                  



summer in Ohio but return here to Alaska, and then we revisit the living arrangement  

                                                                                                                                                



after  we see her response to Ohio and when she gets a tiny bit older"; this would  

                                                                                                                                                           



"prepare her for the possibility that she's going to move to Ohio for fifth grade or sixth  

                                                                                                                                                               



grade or junior high." And toward the end of the hearing the court said it "would explore  

                                                                                                                                                          



             23           (...continued)  



                                                                                                                                                                    

(Alaska 2015), where we stated that a grandparent seeking visitation over the wishes of  

                                                                                                                                                                    

an "otherwise fit parent[]" "must prove by clear and convincing evidence that it is  

                                                                                                                                                          

detrimental  to  the  child  to  limit  visitation  with  the  third  party  to  what  the  child's  

                                                                                                               

otherwise fit parents have determined to be reasonable."  



             24           119 P.3d at 979.  

                                                  



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

a year from now - well, like next May, sort of revisit this," including both Alexandrea's                                                                                                          



involvement   with   V.'s   care   and,   more   importantly,   V.'s   "relationship   with   her  



grandmother."   



                                    It was only in the court's subsequent written order that it cited the law that                                                                                                           



applies to a grant of permanent custody to a non-parent and found that Kathryn should                                                                                                                               

                                                   25   But the order can still be read as consistent with the court's oral  

have custody of V.                                                                                                                                                                                                          



remarks; it reads, "It would be detrimental to [V.] to reside with [Alexander] at this  

                                                                                                                                                                                                                            



time. . . .  If he was in Anchorage so that the Court could reintroduce [V.] to life in her  

                                                                                                                                                                                                                              

                                                                                                                                                                                                                    26      The  

father's home more gradually, then the Court would begin that transition now." 

                                                                                                                                                                                                                           



order reaffirms the court's oral finding that it would be too damaging to V. to simply  

                                                                                                                                                                                                                    



change custody abruptly from Kathryn to Alexander.  The order thus appears to keep  

                                                                                                                                                                                                                         



alive the idea of a transitional period as an alternative to an immediate modification of  

                                                                                                                                                                                                                                 



physical custody.  

                        



                                    We conclude that when Alexander next moved for modification of custody  

                                                                                                                                                                                                                  



in November 2016, he could have reasonably believed that the July custody award to  

                                                                                                                                                                                                                                 



Kathryn was temporary because they were in an experimental phase, exploring the  

                                                                                                                                                                                                                             



possibility of a gradual transition to his custody.  We give deference to the superior  

                                                                                                                                                                                                                

court's contrary interpretation of its own order27  - in denying Alexander's November  

                                                                                                                                                                                                          



motion  the  court  believed  it  had  already  resolved  the  issue  of  permanent  custody,  

                                                                                                                                                                                                               



                  25               At the evidentiary hearing the court had mistakenly informed Alexander                                                                                                 



that he bore "the burden of proving that the change [in custody] should occur."                                                                                                                                           The  

court's written order, however, correctly stated the burden on the non-parent to prove by                                                                                                                                       

clear and convincing evidence that awarding custody to the parent would be clearly                                                                                                                                  

detrimental to the child.                                         



                  26                Emphases added.  

                                                                



                  27               Del Rosario v. Clare, 378 P.3d 380, 383-84 & nn.10-11 (Alaska 2016).  

                                                                                                                                                                                                                 



                                                                                                              -13-                                                                                                       7269
  


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

eliminating Alexander's right to the biological-parent preference.                                                                                               But our overriding     



                                                                                                                                        28  

concern is with Alexander's right to clarity on the issue.                                                                                    



                                In interpreting the court's July 2016 order we take into consideration other  

                                                                                                                                                                                                     



parts of the record, including the court's oral remarks at the hearing to the extent they  

                                                                                                                                                                                                      

may clarify the written order.29  We conclude that the court's oral remarks and written  

                                                                                                                                   



order  read  together,  as  in  Britt,  indicate  an  intent  to  create  a  temporary  custody  

                                                                                                                                                                                             

arrangement subject to further review the next May and perhaps beyond.30                                                                                                            Interpreting  

                                                                                                                                                                                    



the order as permanent and dispositive of Alexander's parental preference was an abuse  

                                                                                                                                                                                                   

of  discretion.                        The  parental  preference  therefore  did  not  drop  out,31                                                                              and  Kathryn  

                                                                                                                                                                                            



continues to have the burden of proving by clear and convincing evidence that the  

                                                                                                                                                                                                         

preference should be overcome.32  

                                                    



                28              Elton H.             , 119 P.3d at 979-80 (holding that one of four conditions limiting                                                                       



trial court's discretion to award custody to non-party is "notice that such an award is                                                                                             

being considered");   C.R.B. v. C.C.                                                  , 959 P.2d 375, 381 n.12 (Alaska 1998) ("Courts                                                      

should make clear whether a grant of nonparental custody is temporary or permanent,                                                                                                   

and ensure that they carefully warn a parent that a hearing may have the latter result."),                                                                                                  

overruled on other grounds by Evans v. McTaggart                                                                             , 88 P.3d 1078 (Alaska 2004).                            



                29              Del Rosario, 378 P.3d at 384 ("All parts of an order are read together and  

                                                                                                                                                                                                        

are considered as a whole," and "[t]he record [also] should be taken into consideration  

                                                                                                                                                                                

in determining the intent, scope[,] and effect of an order." (second and third alterations  

                                                                                                                                                                                        

in original); Brandal v. Shangin, 36 P.3d 1188, 1195-96 (Alaska 2001) ("[W]e look to  

                                                                                                                                                                                                            

both the oral comments and the written findings of fact and conclusions of law to clarify  

                                                                                                                                                                                                  

the scope of [an] order.").  

                                                                



                30              See Britt v. Britt, 567 P.2d 308, 310 (Alaska 1977), overruled on other  

                                                                                                                                                                                           

grounds by Evans, 88 P.3d 1078.  

                                                                   



                31              See Abby D. v. Sue Y., 378 P.3d 388, 392 (Alaska 2016).  

                                                                                                                                                          



                32              See Dara v. Gish, 404 P.3d 154, 161 (Alaska 2017).  

                                                                                                                                               



                                                                                                    -14-                                                                                             7269
  


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

V.       CONCLUSION  



                 The order denying Alexander's motion to modify custody is REVERSED  

                                                                                                 



and the case is REMANDED for proceedings consistent with this opinion.  

                                                                                        



                                                       -15-                                                7269
  

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