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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Saffir v. Wheeler (2/22/2019) sp-7337

Saffir v. Wheeler (2/22/2019) sp-7337

           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                                       



DAISY  SAFFIR,                                                   )  

                                                                 )     Supreme  Court  No.  S-17012  

                                Appellant,                       )  

                                                                                                                                 

                                                                 )     Superior Court No. 3AN-17-09513 CI  

           v.                                                    )  

                                                                                           

                                                                 )    O P I N I O N  

                    

MICHAEL WHEELER,                                                 )  

                                                                                                                

                                                                 )    No. 7337 - February 22, 2019  

                                Appellee.                        )  

                                                                 )  



                                                                                                              

                      A            

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

                                                                                                             

                      Judicial District, Anchorage, Herman G. Walker, Jr., Judge.  



                                                                                                          

                      Appearances:               Kara  A.  Nyquist,  Nyquist  Law  Group,  

                                                                                                                 

                      Anchorage,  for  Appellant.                       Michael  Wheeler,  Pro  Se,  

                                          

                      Anchorage, Appellee.  



                                                                                                        

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

                                           

                      and Carney, Justices.  



                                                   

                      BOLGER, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                  

                      A mother wishes to relocate with her daughter to New York.  She sought  



                                                                                                                                         

primary custody, alleging that the father's drinking and busy schedule made him an  



                                                                                                                                        

improper guardian for their two-year-old. The superior court concluded that it was in the  



                                                                                                                                

child's best interests to remain in Alaska, in her father's custody.  The mother appeals,  



                                                                                     

arguing that the superior court erred in its analysis.  


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

                                                                         Becausethesuperior court didnotproperlyconsider theeffect ofseparating                                                                                                                                                                                                                                                                                  



the child from her mother, we vacate its custody order and remand for further analysis.                                                                                                                                                                                                                                                                                                                                                                                                     



However we affirm the court's decision not to order protective measures to ensure the                                                                                                                                                                                                                                                                                                                                                                                   



 father's sobriety while caring for the child.                                                                                                                                                             



II.                                  FACTS AND PROCEEDINGS                                                           



                                     A.                                  Facts  



                                                                         Daisy Saffir and Michael Wheeler had adaughter                                                                                                                                                                                                                          in June 2015. They                                                                                       never  



married, but began living together during Saffir's pregnancy.  Their relationship grew                                                                                                                                                                                                                                                                                                  



 strained   over   the next two                                                                                                                          years,   largely because of tensions caused                                                                                                                                                                                                          by Wheeler's   



 drinking, and they broke up in the summer of 2017. They continued living together with                                                                                                                                                                                                                                                                                                                                                                          



their daughter throughout the proceedings in this case.                                                                                                                                                                                                                       



                                                                          Saffir's family lives in New York, and the couple discussed the possibility                                                                                                                                                                                                                                                                           



 of moving there with their daughter before they broke up.                                                                                                                                                                                                                                                                            But these discussions fell                                                                                                      



 apart by the time they separated or shortly thereafter.                                                                                                                                                                                 



                                     B.                                  Proceedings  



                                                                         In October 2017 Saffir filed a complaint seeking primary custody of her                                                                                                                                                                                                                                                                                                                      



 daughter.  She also filed a motion for interim custody requesting permission to move to  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                              



New York with the child immediately.                                                                                                       



                                                                          The superior court held a hearing on the motion for interim custody on                                                                                                                                                                                                                                                                         



December 20. Saffir testified that she maintained the child's routine and was her primary                                                                                                                                                                                                                                                                                                                                                     



 caretaker, and that Wheeler's drinking habits and work schedule interfered with his                                                                                                                                                                                                                                                                                                                                                                                   



 ability to parent.                                                                               Saffir introduced a journal she had made to document Wheeler's                                                                                                                                                                                                                                                              



 drinking, with entries running                                                                                                                                             from September                                                                                   2016   to   December   2017.     She also   



 introduced Wheeler's records fromProvidence Breakthrough Addiction and Behavioral                                                                                                                                                                                                                                                                                                                                           



Health Services - a treatment center where Wheeler had been provisionally diagnosed                                                                                                                                                                                                                                                                                                                                              



with   mild   "alcohol   use   disorder"   -   and   testified   that   he   resumed   drinking   after  



                                                                                                                                                                                                                                      -2-                                                                                                                                                                                                                      7337
  


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

                                                                                                                               

completing outpatient treatment there in June 2016.  In response Wheeler testified that  



                                                                                                                               

he participated in the child's day-to-day care, but that Saffir "micromanaged" him and  



                                                                                                                        

made it difficult for him to do things like put their daughter to bed. He said the drinking  



                                                                                                                                

Saffir reported was the result of the tensions in their relationship and disputed the  



                                                        

conclusions reached by Providence Breakthrough.  



                                                                                                                               

                    The superior court denied Saffir's motion for interim custody, making oral  



                                                                                                                                  

findings that it had not "heard . . . anything that says any of [Wheeler's] conduct is  



                                                                                                                          

detrimental to the child." But the court did "order that . . . Wheeler not have any alcohol  



                                                                                                                        

around the child."  It also found that "Saffir has been the primary custodian."  



                                                                                                                                

                    The  superior  court  held  final  custody  hearings  one  month  later,  on  



                                                                                                          

January 29 and 31, 2018.  It had previously clarified that it would also consider the  



                                                                                                                        

evidence  presented  at  the  interim  custody  hearing  when  making  its  final  custody  



                                                                                                                        

decision.         The  issue  of  Wheeler's  drinking  dominated  the  proceedings.                                     Saffir's  



                                                                                                                                 

stepfather and sister both testified that they had seen Wheeler drink excessively when he  



                                                                                                                         

visited them in New York.  They further testified that Saffir actively tried to involve  



                                                                                                                        

Wheeler in the child's life. Saffir also offered the testimony of a counselor who assessed  



                                                                                                                                  

Wheeler  for  Providence  Breakthrough  and  expert  testimony  from Vivian  Patton,  a  



                                                                                                                       

counselor who treats "mental health and substance use issues," but who did not interview  



                                                                                                                                      

Wheeler and based her opinion solely on his medical records and the litigation materials.  



                                                                                                                          

Both said that Wheeler met the criteria for alcohol use disorder.  Finally Saffir herself  



                                                                            

testified at length about Wheeler's schedule and drinking, and said that she had found  



                                                                                                                              

him intoxicated while caring for their daughter on three separate occasions.  She also  



                                                                                                                  

explained how she facilitated Wheeler's involvement with their daughter.  



                                                                                                                          

                    For his part Wheeler testified that his work schedule was flexible enough  



                                                                                                                             

to allow him to care for the child and that he had been an active part of her life since  



                                                                                                                              

birth. He disputed Saffir's testimony about his alcohol use and claimed that he had been  



                                                                -3-                                                         7337
  


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

                                                                                                                                  

sober for "three or four" months prior to the trial. He introduced data from Soberlink -  



                                                                                                                                  

a service that uses a portable breathalyzer to monitor alcohol use at scheduled times -  



                                                                                                                                 

to demonstrate his sobriety.   Finally he sought to discredit Saffir's journal with the  



                                           

testimony of three friends.  



                                                                                                                                    

                     At the end of the hearing, the superior court made several oral findings.  It  



                                                                                                                                     

concluded  that  "Saffir  has  been  controlling"  and  that  this  is  "interfering  with  .  .  .  



                                                                                                                             

Wheeler's ability to parent."  It also found that the testimony of Saffir's relatives about  



                                                                                                                                   

Wheeler's alcohol use was credible, but found Wheeler's testimony credible as well. In  



                                                                                                                  

contrast  the  court  did  not  "find  [Saffir's  journal]  very  reliable,"  and  expressed  a  



                                                                                                               

skepticism that it was created for litigation purposes.  Finally the court stated that "the  



                                                                                                                          

drinking has been mitigated to an extent by the steps that . . . Wheeler has taken,"  



                                                                                                             

including using Soberlink and enrolling in Providence Breakthrough.  



                                                                                                                                  

                     The superior court issued its final custody order in February 2018.   It  



                                                                                                                

concluded that "it is in the child's best interest to remain in Alaska until kindergarten,"  



                                                                                                                      

but that "[w]hen [she] reaches kindergarten age the court will consider this a substantial  



                                                                                                                  

change of circumstance and the parties can readdress custody again."  In reaching this  



                                                                                                                               

decision, the court first addressed Saffir's relocation to New York and the impact such  



                                                                                                                                   

a move would have on the child.  It found that Saffir had a legitimate reason to move to  



                                                                                                                             

New York, but that "[c]onsistent contact with [Wheeler] will be disrupted if [the child]  



                                                                                                                                 

is allowed to relocate." While the court recognized that the child would benefit from the  



                                                                                                                           

extended family she has in New York, it reasoned that Saffir's actions while in Alaska  



                                                                                                                               

"indicate[] that she is overly protective of [the child] to such an extent it interferes with  



                                                                                                                                       

[Wheeler's] ability to parent" and that "[t]his control will be exacerbated in New York."  



                                                                                                                     

The superior court found that Saffir had been the child's "primary day to day caregiver,"  



                                                                                                                                

but that this was at least in part because she had prevented Wheeler from "handl[ing] day  



            

to day issues."  



                                                                -4-                                                          7337
  


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                                                                           The court then proceeded to consider the child's best interests, discussing                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                                                                            1  

each of the factors listed in AS 25.24.150(c).                                                                                                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                                                                      It found that (1) the child had no special  



                                      1                                    This section provides that:                                                                                               



                                                                                                                The court shall determine custody in accordance with
                                                                                                                                                                                                                            

                                                                           the best interests of the child under AS 25.20.060-25.20.130.
                                                                                                                                                        

                                                                           In determining the best interests of the child the court shall
                                                                                                                                                                                                                    

                                                                           consider
  



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

                                                                           social needs of the child;
                                                                               



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

                                                                           these needs;
   



                                                                                                                 (3)  the child's preference if the child is of sufficient
                                                                                                                                                                                         

                                                                           age and capacity to form a preference;
                                                                                                         



                                                                                                                 (4)  the love and affection existing between the child                                                                                                                                                                                                                      

                                                                           and each parent;                                   



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

                                                                           satisfactory environment and the desirability of maintaining
                                                                                                                                                                                                               

                                                                           continuity;
  



                                                                                                                 (6)   the   willingness   and   ability   of   each   parent   to
  

                                                                           facilitate and encourage a close and continuing relationship
                                                                                                                                                                                                               

                                                                          between the other parent and the child, except that the court
                                                                                                                                                                                                                                                     

                                                                           may not consider this willingness and ability if one parent
                                                                                                                                                                                                                                              

                                                                           shows that the other parent has sexually assaulted or engaged
                                                                                                                                                                                                                                   

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

                                                                           continuing relationship with the other parent will endanger
                                                                                                                                                                                                                              

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



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

                                                                           child neglect in the proposed custodial household or a history
                                                                                                                                                                                                                                   

                                                                           of violence between the parents;
                                                                                                       



                                                                                                                 (8)  evidence that substance abuse by either parent or                                                                                                                                                                                                                                       

                                                                                                                                                                                                                                                                                                                                                                                                                            (continued...)  



                                                                                                                                                                                                                                            -5-                                                                                                                                                                                                                            7337
  


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

needs; (2) that both parents had the ability and desire to meet her needs; (3) that the child                                                                                                                                                                                            



was not old enough to have a preference between her parents; (4) that love and affection                                                                                                                                                                                   



existed between the child and each parent; (5) that "maintaining stability and continuity                                                                                                                                                                              



in Alaska at this time is important for the child" because Saffir's tight control over the                                                                                                                                                                                                     



child's schedule would "thwart [Wheeler's] ability to parent when he has custody";                                                                                                                                                                                      



(6)   that   Saffir's   "actions   demonstrate   that   she   will   not   allow   an   open   and   loving  



relationship between" Wheeler and the child and that this would "be exacerbated if [the                                                                                                                                                                                                     



child] is allowed to relocate to New York"; (7) that there was no evidence of child                                                                                                                                                                                                    



neglect or abuse; and (8) that Wheeler had "taken steps" to address his drinking problem                                                                                                                                                                                     



and that his "alcohol issues" did not "affect the well[-]being of the child."                                                                                                                                                                                   



                                              Based   on   these   findings,   the   superior   court   awarded   primary   physical  



custody to Wheeler if Saffir moves to New York.  In that scenario Saffir was awarded                                                                                                                    



custody   of   the   child   for   one   week   each   month,   with   the   location   of   her   custody  



alternating between New York and Alaska.                                                                                                              In the event that Saffir stays in Alaska, the                                                                                            



court ordered                                     a 2-2-3                      custody schedule.                                                   The court did not impose any                                                                                     conditions  



requiring Wheeler to be sober or demonstrate sobriety while caring for the child.                                                                                                                                                                                                   Saffir  



appeals.   



III.                   DISCUSSION  



                                              Saffir   appeals   all   but   two   of   the   superior   court's   best-interests  

                                                                                                                                                                                                                                                        



determinations, as well as the weight given to them.  Saffir also argues that the superior  

                                                                                                                                                                                                                                                                             



court abused its discretion by not ordering protective measures to ensure Wheeler's  

                                                                                                                                                                                                                                                                     



sobriety while with the child. Because we agree that the court's analysis of the fifth best- 

                                                                                                                                                                                                                                                                                         



                       1                      (...continued)
  



                                                                                                                                                                                                                          

                                              other members ofthehouseholddirectlyaffects theemotional
  

                                                                                                                                                   

                                              or physical well-being of the child;
  



                                                                                                                                                                                                                 

                                                                     (9) other factors that the court considers pertinent.  



                                                                                                                                                -6-                                                                                                                                      7337
  


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

                                      2  

interests factor                         did not conform with our precedent - namely that it did not include a                                                                                                              



symmetric analysis of the impact Saffir's move would have on the child if the child                                                                                                                              



remained in Alaska or if she moved with Saffir to New York - we remand to the                                                                                                                                         



superior court for further analysis.                                                     We however affirm the superior court's decision not                                                                           



to order protective measures.                     



                 A.	               The Failure To Engage In Proper Symmetrical Analysis Was Legal                                                                                                              

                                  Error.  



                                   1.	              The  Moeller-Prokosch  framework  



                                  Where, as here, a custody dispute involves one parent's plan to leave the                                                                                                            



state, superior courts must use a two-step process to determine the best interests of the                                                                                                                             

                                     3  The superior court must first "determine whether the planned move is  

affected child.                                                                                                                                                                     



                                    4  

 'legitimate.' "                          If the superior court finds that the move is legitimate, it "must assume  

                                                                                                                                                                                           



that the move will take place and then consider the . . . statutory factors to determine the  

                                                                                                                                                                                                                       

custody arrangement that serves the best interests of the child[]."5   "Performing the best  

                                                                                                                                                                                                                    



interests analysis based on [a parent's] assumed move requires symmetric consideration  

                                                                                                                                                                                            



of the consequences to [the child] both if [the parent] leaves with [the child] and if [the  

                                                                                                                                                                                                                     



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



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



                 3                Moeller-Prokosch v. Prokosch, 27 P.3d 314, 316 (Alaska 2001) (Moeller- 

                                                                                                                                                                                                      

Prokosch I).  

                          



                 4                Mengisteab v. Oates, 425 P.3d 80, 85 (Alaska 2018) (quoting Moeller- 

                                                                                                                                                                                                       

Prokosch I, 27 P.3d at 316).  "A move is legitimate if it is not primarily motivated by a  

                                                                                                                                                                                                                            

desire to make visitation more difficult."  Rego v. Rego, 259 P.3d 447, 453 (Alaska  

                                                                                                                                                                                                          

2011).  



                 5                 Veselsky v. Veselsky, 113 P.3d 629, 632 (Alaska 2005) (citing Moeller- 

                                                                                                                                                                                                        

Prokosch I, 27 P.3d at 316) (footnote omitted).  

                                                                                                  



                                                                                                            -7-	                                                                                                  7337
  


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

                                                               6  

parent] leaves without [the child]."                               This analytical framework "ensures that courts                            



weigh costs and benefits to a child when one parent asks for a custody order reflecting                                                 

                                  7  Whether the superior court properly applied the Moeller-Prokosch  

their plan to move."                                                                                                     



                                                                            8  

legal standard is subject to de novo review.   

                                                                



                       2.          The court's analysis of best-interests factor five  

                                                                                                                      



                       The superior court found that Saffir's move to New York was legitimate,  

                                                                                                                                      

and neither party disputes this finding.9  

                                                                       However Saffir argues that the superior court  



                                                                                                                                               

did not apply the proper symmetric considerations when it analyzed the fifth best- 



                                                                                                                                                   

interests factor. Factor five requires the superior court to consider "the length of time the  



                                                                                                                                   

child has lived in a stable, satisfactory environment and the desirability of maintaining  



                     10  

                                                                                                                                              

continuity."              We have explained that where one parent is moving from Alaska, factor  



                                                                                                                                   

five requires the superior court to consider "not only the desirability of maintaining  



            6          Moeller-Prokosch   v.   Prokosch,   99   P.3d   531,  535-36   (Alaska   2004)  



(Moeller-Prokosch III                  ).  



            7          Pingree v. Cossette, 424 P.3d 371, 385 (Alaska 2018).  

                                                                                                            



            8          See  Mengisteab,  425  P.3d  at  85,  87,  89.  



            9           Saffir  does  argue,  however,  that  the  superior  court  failed  to  assume  that  her  



move  would occur by ordering  two alternative  custody  schedules:   one for if she stays  

in   Alaska   and   one   for   if   she   moves   to   New   York.    We   disagree.    We   rejected   this  

argument  in  Rego  v.  Rego,  where  we  held  that  "the  superior  court  is  authorized  to  order  

'alternative  custody  arrangements  dependent  on  whether  the  move  occur[s].'  "   259  P.3d  

at  456  (Alaska  2011)  (alteration  in  original)  (quoting  Silvan  v.  Alcina ,  105  P.3d  117,  122  

(Alaska  2005)  (citing  Moeller-Prokosch  I,  27  P.3d  at  317  n.8)).   We  explained  that  a  

superior   court   "may  be   confronted  with   a   custodial  parent  who  would   choose  not  to  

move   if  he   or   she   cannot  maintain   custody,"  but   that   "[t]he   chance   that   the   superior  

court's  decision  will  influence  [the  parent's]  decision  to  move  does  not  justify  reversing  

the  superior  court's  order."   Id .  at  456  (quoting  Moeller-Prokosch  I,  27  P.3d  at  316).    



            10         AS 25.24.150(c)(5).  

                               



                                                                         -8-                                                                   7337
  


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

                                                                                                                                                  11  

geographical continuity, but also the importance of maximizing relational stability."                                                                  



                                                                                                                                                

This means that "[c]ourts should consider 'social and emotional factors such as who the  



                                                                    12 

                                                                                                                                  

primary care-giver was for the child.' "                                 Factor five was the basis for our decision in  



                                      13  

                                                                                                                                      

                                          and we have "expressed particular concern that . . . court[s]  

Moeller-Prokosch III, 



                                                                                                                               

conduct a symmetrical analysis with regard to a child's relational and geographical  

stability."14  



                                                                                                                                               

                       The superior court found that factor five favored Wheeler. It explained that  



                                                                                                                                        

the child had "lived in her [f]ather's home since birth" and that "[m]aintaining stability  



                                                                                                                                            

and continuity is important for toddlers."  The court noted that Saffir had created a strict  



                                                                                                                                               

routine for the child that "has sometimes hindered [Wheeler's] ability to parent," and  



                                                                                                                                                

expressed concern that this dynamic would only worsen if the child moved across the  



                                                                                                                                           

country  with  Saffir.                 But  the  superior  court  did  not  discuss  the  impact  that  being  



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



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



            12          Veselsky v. Veselsky, 113 P.3d 629, 635 (Alaska 2005) (quoting Rooney v.  

                                                                                                                                                   

Rooney, 914 P.2d 212, 217 (Alaska 1996)).  We have acknowledged that the child's  

                                                                                                                                         

relationship with extended family could be properly considered as a part of factor five  

                                                                                                                                               

as well.  See Rego, 259 P.3d at 460 ("The superior court considered circumstances that  

                                                                                                                                               

Dante was likely to encounter in each  environment, such as contact with extended  

                                                                                                                                     

family, and showed due consideration for the statutory 'stability' factor."). Saffir argues  

                                                                                                                                          

that the superior court failed to consider the "the importance of [the child's] strong bond  

                                                                                                                                             

with her maternal extended family" in New York.  We note, however, that the superior  

                                                                                                                                       

court recognized that a move to New York would "be good for the [child] because she  

                                                                                                                                                

has extended family there."  

                                                 



            13         See  99 P.3d at 535 n.17 ("[T]he  impact of separation is . . . properly  

                                                                                                                                    

considered as part of the stability analysis under the fifth statutory factor.").  

                                                                                                                    



            14         Mengisteab v. Oates, 425 P.3d 80, 87 (Alaska 2018).  

                                                                                                                    



                                                                        -9-                                                                 7337
  


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

separated from Saffir would have on the child, even though it had found that Saffir was                                                                        



her "primary day to day caregiver."                                   



                                                                                                                                                                   15  

                          We recently vacated a similar custody order in                                                Mengisteab v. Oates                        .    



                                                                                                                                                                 

There a mother sought to modify an existing custody agreement, which had given her  

                                                                                                                           16    After a hearing the  

                                                                                                                                                                 

primary custody, because "she would be moving out of state." 



superior court issued a written order finding that it was in the child's best interests to live  

                                                                                                                                                                

in  Alaska  with  his  father.17                           The  order  placed  a  heavy  emphasis  on  the  mother's  

                                                                                                                                                     



unwillingness to facilitate a relationship between the father and the child: "[The child'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."18                                                 We found 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 [the child's] life."19                                                           Although the superior  

                                                                                                                                                       



court discussed the effect that the mother's move would have on the father's ability to  

                                                                                                                                                      



parent, it was error for it not "to consider the potential consequences to [the child] both  

                                                                                                                                                              



if he were to live in Washington with [his mother] and if he were to live in Alaska  

                                                                                                                                                         

without her."20  

                              



             15          Id . at 92.     



             16  

                                     

                         Id. at 84.  



             17          Id.  at 85.   



             18          Id. at 84-85 (second alteration in original) (quoting superior court's order).  

                                                                                                                                                          



             19          Id.  at 87.   



             20  

                                                                                                                                                         

                         Id. at 89 (citing Moeller-Prokosch III, 99 P.3d 531, 535-36 (Alaska 2004)).  



                                                                               -10-                                                                          7337
  


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

                                 The superior court's analysis here suffers from the same imbalance.  The                                                       



court placed great weight on its finding that Saffir would interfere with Wheeler's ability                                                                                                           



to parent.               But it did not address the impact of removing the child from her established                                                                                     



routine or from Saffir, the parent who established it. Our precedent regarding symmetric                                                                                                    

                                                                                                                                                                                        21  especially  

analysis of the fifth best-interests factor required the superior court to do so,                                                                                                            

in light of  its finding that "Saffir has been [the child's] primary custodian."22                                                                                                                           We  

                                                                                                                                                                                                            



therefore hold that there was a failure to engage in proper symmetrical analysis, which  

                                                                                                                                                                                                       



constituted error.  

                             



                 B.	             The Superior Court Did Not Abuse Its Discretion By Not Ordering  

                                                                                                                                                                                             

                                 Protective Measures When The Child Is In Wheeler's Care.  

                                                                                                                                                                                



                                 Having concluded that the superior court's legal error with respect to its  

                                                                                                                                                                                                                        

analysis of the fifth best-interests factor is grounds for remand,23  

                                                                                                                                                                                                             

                                                                                                                                                                     we now turn to her  



                                                                                                                                                                                                                 

argument that the superior court erred by not putting in place protective measures to  



                                                                                                                                                                                                     

ensure Wheeler's sobriety while caring for the child. "We will uphold a superior court's  



                                                                                                                                                                                                             

. . . visitation determinations 'unless the record shows that its controlling findings of fact  



                                                                                                                                              24  

                                                                                                                                            

are clearly erroneous or the court abused its discretion.' " 



                21               See Moeller-Prokosch III                                       , 99 P.3d at 535 (stating that the superior court                                                        



failed to "consider the detriment to [the child] if he were separated from his mother upon                                                                                                                

her move to Florida.").         



                22               See Veselsky v. Veselsky, 113 P.3d 629, 635 ("Courts should consider  

                                                                                                                                                                                                

 'social and emotional factors such as who the primary care-giver was for the child.' "  

                                                                                                                                                                                                                   

(quoting Rooney v. Rooney, 914 P.2d 212, 217 (Alaska 1996))).  

                                                                                                                                          



                23               Wehavealsoconsidered Saffir'sargumentsregarding factorsone, two, six,  

                                                                                                                                                                                                              

seven, eight, and nine and conclude that the superior court's findings had support in the  

                                                                                                                                                                                                              

record and were not clearly erroneous. That said, the superior court may need to reweigh  

                                                                                                                                                                                                  

the best-interests factors after it reconsiders factor five.  

                                                                                                                             



                24               Houston  v.  Wolpert,  332  P.3d  1279,  1282  (Alaska  2014)  (quoting  

                                                                                                                                                                                               

                                                                                                                                                                                     (continued...)  



                                                                                                      -11-	                                                                                              7337
  


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

                                                                Saffir asked the superior court to require Wheeler to be sober while with                                                                                                                                                                                                                                                        



their daughter and to order affirmative measures to ensure his sobriety. The court's final                                                                                                                                                                                                                                                                                                        



 order granted primary physical custody to Wheeler, but did not explicitly require his                                                                                                                                                                                                                                                                                                                  



 sobriety or otherwise include the measures Saffir requested.                                                                                                                                                                                                                                



                                                               While it did not explain the reason for these omissions, the superior court                                                                                                                                                                                                                                                    



 discussed Wheeler's drinking at length and ultimately found that it did not "affect the                                                                                                                                                                                                                                                                                                                



well[-]being of the child."                                                                                                  This finding is supported by the record.                                                                                                                                                        The superior court                                                



 explained that while Wheeler "did have issues with alcohol[,] [h]e has taken steps to                                                                                                                                                                                                                                                                                                                       



 address this issue." Wheeler testified that he had sought proper medical care for chronic                                                                                                                                                                                                                                                                                          



pain caused by a spinal injury and was no longer self-medicating with alcohol.                                                                                                                                                                                                                                                                                                   He said   



that he had not had a drink for three or four months at the final custody hearing and                                                                                                                                                                                                                                                                                                                



 introduced Soberlink data to show that he had been sober during the month since the                                                                                                                                                                                                                                                                                                                    



 interim custody hearing.                                                                                             Wheeler also testified that he does not drink before or while                                                                                                                                                                                                          



 caring for the child and indicated that he thought it would be irresponsible to do so.                                                                                                                                                                                                                                                                                                                     



                                                                Saffir offered conflictingevidenceto provethat                                                                                                                                                                            Wheelercontinued to drink                                                                             



through the period during which he claimed sobriety and that this drinking endangered                                                                                                                                                                                                                                                                           



their child. But "[w]hen the superior court is faced with conflicting evidence, we do not                                                                                                                                                                                                                                                                                                               



re-weigh it. 'It is the job of the trial court, not the appellate court, to judge the credibility                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                          25   We cannot say that the superior  

 of the witnesses and to weigh conflicting evidence.' "                                                                                                                                                                                                                                                                                                                         



 court's finding was clearly erroneous in light of the evidence presented at trial.  We  

                                                                                                                                                                                                                                                                                                                                                                                                   



                                24                              (...continued)  



                                                                                                                                                                                                                                                                                     

Borchgrevink v. Borchgrevink, 941 P.2d 132, 134 (Alaska 1997)).  



                                25                             Silvan v. Alcina, 105 P.3d 117, 122 (Alaska 2005) (quoting Native Alaskan  

                                                                                                                                                                                                                                                                                                                                                                                  

Reclamation & Pest Control, Inc. v. United Bank Alaska, 685 P.2d 1211, 1215 (Alaska  

                                                                                                                                                                                                                                                                                                                                                                                  

  1984)).  



                                                                                                                                                                                                   -12-                                                                                                                                                                                          7337
  


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

therefore conclude that the decision to put no protective measures in place while the  

                                                                                                                     



child was in Wheeler's care was not an abuse of discretion.  

                                                                     



IV.      CONCLUSION  



                  We VACATE the superior court's February 15, 2018 custody order and  

                                                                                                                    



REMAND for further analysis consistent with this opinion.  

                                                                        



                                                         -13-                                                    7337
  

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