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B. McQuade v. P. McQuade (8/18/95), 901 P 2d 421
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers
are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501-2084 or call (907) 264-0607.
THE SUPREME COURT OF THE STATE OF ALASKA
BARRY K. McQUADE, )
) Supreme Court No. S-6608
Appellant, )
v. ) Superior Court No.
) 3AN-93-11090 CI
PATRICIA A. McQUADE, )
) O P I N I O N
Appellee. )
) [No. 4238 - August 18, 1995]
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Rene J. Gonzalez, Judge.
Appearances: William T. Ford,
Anchorage, for Appellant. Gary R.
Eschbacher, Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton and Eastaugh,
Justices.
RABINOWITZ, Justice.
I. INTRODUCTION
Barry McQuade appeals the superior court's order
awarding custody of his minor son, Jeffrey, to his ex-wife,
Patricia, who chose to move to Texas following the parties'
separation but prior to the entry of the court's custody decree.
Barry asks us to adopt the standard articulated in D'Onofrio v.
D'Onofrio, 365 A.2d 27 (N.J. Super. Ct. Ch. Div.), aff'd, 365
A.2d 716 (N.J. Super. Ct. App. Div. 1976), for determining the
custody of a minor child where one parent chooses to move out of
state, and to hold that the superior court abused its discretion
in making its final custody determination.
II. FACTS AND PROCEEDINGS
Barry and Patricia McQuade were married in 1989 in
Anchorage. There was one minor child of the marriage, Jeffrey
Alan McQuade, born in 1989. Barry filed for divorce in 1993, and
both parties sought sole custody of Jeffrey. The superior court
entered an order for a custody investigation. Thereafter, Barry
and Patricia agreed to share interim custody of Jeffrey on a
"fifty/fifty" basis pending trial.1 Sometime following
separation, Patricia decided to move to Texas for financial
reasons, as well as to be closer to her family and "start life
over again."
At the time of trial, Patricia was forty-one years old.
She has been married four times, with her three previous
marriages also ending in divorce. She has three older children,
Lori, age twenty-two at trial, Blanton, age fourteen, and Sean,
age ten, all of whom live in the same household as Patricia.
Patricia works as a medical laboratory technician.
At the time of trial, Barry was forty-six years old.
He has been married twice, with the previous marriage also ending
in divorce. He has two adult children, Bryan, age twenty-four,
and Bruce, age twenty-one, both of whom live in the Anchorage
area. Barry is employed as an orthopedic technician.
The custody investigator conducted an investigation and
issued a report recommending that the parties be granted joint
legal custody of Jeffrey, with primary physical custody being
awarded to Patricia. The custody investigator noted that both
parties may have difficulty in providing for Jeffrey's emotional
development; that both parties have abused alcohol during the
marriage; and that both parties may have trouble fostering a
nurturing and loving relationship with the other parent; but also
that Jeffrey loves and cares equally about both parents and
appears to be bonded to both; and that both parties appear able
to provide a stable home environment. The custody investigator
further noted that "[t]he sibling relationship in this family is
very strong, especially between Jeffrey and his older sister,
Lori. It is of utmost importance that this relationship be
maintained."
The custody investigator testified that the ideal
situation would be one in which Patricia stayed in Alaska so that
the parties could continue the shared custody arrangement. The
custody investigator further testified that the deciding factor
in her custody recommendation was the bond between Jeffrey and
his siblings.2 She testified that in her opinion it was in the
best interest of Jeffrey to stay with his older siblings. In
particular, the custody investigator testified as to the strong
relationship between Jeffrey and Lori, stating that she was "a
primary caretaker"for Jeffrey.
At the conclusion of the trial, the superior court
stated that it would have ordered joint legal and physical
custody to the parties if Patricia were not planning to move out
of the state. However, after considering the best interests of
Jeffrey, the superior court awarded joint legal custody to the
parties with primary physical custody being awarded to Patricia.
Barry appeals.
III. DISCUSSION
A. The "Best Interests"of the Child is the Proper
Standard to Apply in Making a Custody Determination
where one Parent Chooses to Move out of State.3
Barry requests this court to adopt the standard set out
in D'Onofrio, 365 A.2d at 27, for custody determinations where
one parent chooses to move out of state. This standard is based
in part on New Jersey's anti-removal statute which forbids the
removal of children of divorced parents from the state without
the consent of the noncustodial parent "unless the court, upon
cause shown, shall otherwise order." Id. at 28. In D'Onofrio,
the New Jersey Superior Court considered four factors in
determining custody where a custodial parent chose to move out of
state:
(1) the prospective advantages of
the move for the child and custodial
parent;
(2) the motives of the parent
seeking the move, including
consideration of the parent's likely
compliance with future visitation;
(3) the motives of the parent
opposing the move; and
(4) the degree to which visitation
can be restructured in order to preserve
and foster the relationship between the
child and noncustodial parent.
1 Jeff Atkinson, Modern Child Custody Practice 7.07, at 399
(1986).4 Under D'Onofrio, Patricia would have to demonstrate
that the move would lead to a better lifestyle for herself and
Jeffrey, and that the decision to move was not undertaken
primarily to frustrate Barry's custodial and visitation rights.5
We have previously applied a different standard in
reviewing similar custody determinations. In House v. House, 779
P.2d 1204, 1208 (Alaska 1989), we reviewed a trial court's
custody determination where the custodial parent chose to move
out of state so that his wife could pursue a doctorate degree at
a university in California.6 First, we considered the best
interests of the children in light of the criteria in AS
25.24.150(c) and concluded that the record supported the trial
court's findings that remaining in the custody of the parent who
was moving would be in the children's best interests. Id. at
1208. Second, we noted that "[m]ost states permit custodial
parents to move out of state with their children if there is a
legitimate reason for the move." Id. (citing 1 Atkinson, supra
p.5, 7.01, at 390). We then concluded that the "decision of
the family to move to [California] was based upon a valid reason,
that is, a reason which was not primarily motivated by a desire
to make visitation . . . more difficult." Id. Thus, in making a
custody determination where the existing custodial parent chooses
to move out of state, a court must consider the best interests of
the children by applying the criteria in AS 25.24.150(c), and in
so doing should consider whether there is a legitimate reason for
the move.7
Barry seems to argue that where the parties enjoyed
joint custody of a child, or where the court would have awarded
joint custody if one of the parents was not planning to move, a
more rigid standard, as reflected in D'Onofrio, is appropriate.
However, at least one authority states that if parents have joint
physical custody and one parent seeks to move the child, "the
appropriate standard would be similar to a de novo review that
would be made at an initial custody determination. Custody would
be determined according to the best interests of the child, using
a broad range of factors." 1 Atkinson, supra p.5, 7.06, at
398.8 Essentially, this is the standard that we articulated in
House, 779 P.2d at 1204.
We have consistently avoided mandating rigid rules for
making custody determinations. See, e.g., Nichols v. Nichols,
516 P.2d 732, 736 (Alaska 1973) (stating that in custody matters,
"there is no hard and fast rule"). And, unlike New Jersey,
Alaska has not adopted an anti-removal policy. Rather, in the
circumstance where the custodial parent desires to move out of
Alaska, we consider the best interests of the child so that such
determinations are based upon the facts and circumstances of each
particular case. We therefore conclude that the standard set out
in House is the proper standard to apply in the factual
circumstance where one parent is planning to move out of Alaska.
We thus decline to adopt the D'Onofrio standard.
B. In Making its Custody Ruling the Superior Court
Did Not Abuse its Discretion in Determining the Best
Interests of the Child.9
Barry argues that the superior court erred in awarding
primary physical custody of Jeffrey to Patricia. To this effect,
Barry argues that the superior court gave too much weight to
sibling bonds while not giving sufficient weight to parental
bonds and the importance of maintaining continuity.10
1. The superior court did not impermissably
favor sibling bonds over parental bonds.
As to parental bonds, the superior court "carefully
considered the love and affection that both parents have" for
Jeffrey. Moreover, the superior court considered the custody
investigator's report which stated that "Jeffrey loves and cares
equally about both parents and appears to be bonded to both." As
to sibling bonds, the superior court "considered as an important
factor in this case that Jeffrey is bonded to his half brothers
and half sister,"and found it "essential for Jeffrey to have
contact with his half brothers and half sister for his own best
interest." Moreover, the superior court considered the custody
investigator's report which stated that the sibling relationships
were very strong and should be maintained. The superior court
also was able to take into account the custody investigator's
testimony that the sibling bonds were the deciding factor in her
recommendation.
On appeal, Barry argues that the superior court gave
too much weight to sibling bonds and not enough weight to
parental bonds. Alaska Statute 25.24.150(c)(4) requires the
superior court to consider "the love and affection existing
between the child and each parent"in determining the best
interests of the child. In addition, "[t]his court has often
embraced the proposition that it is desirable to not separate
siblings in the course of custody disputes." Craig v. McBride,
639 P.2d 303, 306 & n.9 (Alaska 1982) (the fact that a case
involves half siblings has no bearing on "the desirability of
keeping the children of the family together") (citation omitted).
However, we have declined to adopt a rigid standard for weighing
the importance of maintaining sibling bonds in custody disputes,
and have instead articulated a more flexible approach:
[C]onsideration should be given to the
desirability of not separating the children
unless their welfare clearly requires such a
course. As in other facets of the difficult
problems confronting a trial judge in custody
matters, there is no hard and fast rule. The
question of whether or not it is necessary to
separate children must depend upon the facts
and circumstances of each particular case.
Nichols, 516 P.2d at 736 (footnote omitted); see also Morel v.
Morel, 647 P.2d 605, 607-08 (Alaska 1982); Craig, 639 P.2d at
306.
The superior court essentially concluded that Jeffrey
was equally bonded to each parent and that, all else being equal,
sibling bonds were the deciding factor. Based on the record in
this case and prior Alaska case law, we hold that this does not
constitute an abuse of discretion on the superior court's part.
2. The superior court did not impermissably
favor sibling bonds over the maintenance of
continuity.
As to the factors of stability and continuity, the
superior court stated that "[e]ach parent provides to Jeffrey a
different environment for Jeffrey to grow in, but both
environments within the means of the respective parent are found
by this Court to be acceptable and satisfactory environments."
Moreover, the superior court considered the custody
investigator's report which stated as follows:
Both parents appear to provide
stability insofar as maintaining an adequate
home atmosphere. Mrs. McQuade's history of
marriages indicates some instability that has
certainly impacted the older children. It is
unclear to Investigator if this could
continue to be a problem and is an issue of
concern to Investigator. If Jeffrey's
relationship to both parents is maintained
adequately and consistently, he would most
likely be minimally affected by instability
in this area unless Mrs. McQuade was involved
in a relationship which consisted of domestic
violence or alcohol/drug abuse, etc.
In this appeal, Barry argues that the superior court
gave too much weight to sibling bonds while not giving enough
weight to the importance of maintaining continuity. To this
effect, Barry argues as follows:
Given the mother's history of
frequent moves following divorce, along with
the fact that she had lived in Alaska for a
number of years, that Alaska was Jeffrey's
home, and the home of all of her other
children, that there was no testimony that
she was in any financial difficulty, or that
the proposed move to Texas and transfer of
employment would be financially beneficial to
her, the court should have determined that
the statutory factors of promoting stability
and continuity for the child was [sic] more
important than any anticipated effect on
sibling relationships and ordered a
continuation of the joint custody
arrangement.
Alaska Statute 25.24.150(c)(5) requires the superior
court to consider "the length of time the child has lived in a
stable, satisfactory environment and the desirability of
maintaining continuity"in determining the best interests of the
child. Thus, the superior court must consider each parent's
respective ability to maintain stable and satisfactory relations
between themselves and the child following separation. We note,
however, "[s]tability is often a function of parental attitude
and not of geography." Craig, 639 P.2d at 308 (Rabinowitz, C.J.,
concurring).
We have previously addressed the role that the factors
of stability and maintaining continuity should play in custody
determinations. In Craig, we held that the trial court, in
assessing the relative stability of the parties under AS
24.25.150(c), could properly consider the fact that the father
had lived in the same town for many years, as well as "the fact
that the mother had only recently attempted to create a stable
home environment." Id. at 305.11 Moreover, in Evans v. Evans,
869 P.2d 478 (Alaska 1994), we held that the trial court could
properly broaden its consideration of the issue of stability "to
encompass the children's more general needs for stability in
their overall living environment;"that is, the court could
evaluate "the children's needs, not just in relation to each
parent, but in relation to the totality of the circumstances they
were likely to encounter in their respective parents' homes."
Id. at 482.12 This court concluded by stating that the trial
court's decision was "based on case-specific evidence
demonstrating [the children's] actual need for physical and
emotional continuity and stability in their overall living
situation." Id. at 483 (footnote omitted).
The superior court was aware of Patricia's propensity
for moving and its possible effects on stability and continuity.
In Evans, we suggested that the criteria of stability and
continuity must be considered in light of the facts of each
particular case. Id. In the case at bar, the superior court
considered Jeffrey's relationship with his siblings as an
essential component of maintaining the emotional continuity and
stability of Jeffrey's home environment. Thus, the record shows
that the superior court considered the factors of stability and
continuity and, in light of the particular facts of this case,
chose to emphasize emotional continuity over geographic
continuity. We hold that this does not constitute an abuse of
discretion.
IV. CONCLUSION
The superior court's decree awarding primary physical
custody of Jeffrey to Patricia is AFFIRMED.
_______________________________
1 The superior court granted Barry and Patricia a divorce
on June 16, 1994, and left issues pertaining to child custody,
child support, and property division for determination at trial.
2 The custody investigator testified as follows:
Q There weren't any strong
factors, or were there strong factors,
that made you decide one way or another?
And what were the strong factors, if
any?
A The deciding factor in regards
to the recommendation that I made in
this case was the interview with the
children, in which I discovered that the
older children, as well as the little
boy, had a really strong relationship to
each other.
3 Barry requests this court to adopt a new standard for
determining the custody of a minor child where one parent chooses
to move out of state. Such a determination raises a question of
law to which this court applies its independent judgment
"adopting the rule of law that is most persuasive in light of
precedent, reason and policy." Cox v. Cox, 882 P.2d 909, 913
(Alaska 1994); see also Ayers v. Ayers, 508 N.W.2d 515, 518
(Minn. 1993) (determining the proper standard to be applied in
making a custody determination presents a question of law).
4 Specifically, the D'Onofrio court stated:
Where, however, the custodial parent can
demonstrate that a real advantage to herself
and the children will result from their
removing their residence to a place so
geographically distant as to render weekly
visitation impossible, then the court must
weigh a number of determinative factors in
order to accommodate the compelling interests
of all of the family members. It should
consider the prospective advantages of the
move in terms of its likely capacity for
improving the general quality of life for
both the custodial parent and the children.
It must evaluate the integrity of the motives
of the custodial parent in seeking the move
in order to determine whether the removal is
inspired primarily by the desire to defeat or
frustrate visitation by the noncustodial
parent, and whether the custodial parent is
likely to comply with substitute visitation
orders when she is no longer subject to the
jurisdiction of the courts of this State. It
must likewise take into account the integrity
of the noncustodial parent's motives in
resisting the removal and consider the extent
to which, if at all, the opposition is
intended to secure a financial advantage in
respect of continuing support obligations.
Finally, the court must be satisfied that
there will be a realistic opportunity for
visitation in lieu of the weekly pattern
which can provide an adequate basis for
preserving and fostering the parental
relationship with the noncustodial parent if
removal is allowed.
D'Onofrio, 365 A.2d at 30.
5 2 Homer H. Clark, Jr., The Law of Domestic Relations in
the United States 20.9, at 557 (2d ed. 1987).
6 This determination was made in response to the
noncustodial parent's motion to modify custody. We held that the
custodial parent's decision to relocate the children from Alaska
to California constitutes a substantial change in circumstances
which entitles the noncustodial parent to a hearing on the
children's best interests. House, 779 P.2d at 1207-08. This
court then considered the superior court's determination of the
children's best interests. Id. at 1208. Thus, while House
involved a motion to modify custody, the same standard applies in
reviewing the superior court's initial custody determination at
issue in this case.
7 See also Lee v. Cox, 790 P.2d 1359, 1361 n.5 (Alaska
1990) (citing authority from several other jurisdictions
consistent with this standard).
8 See also In re Marriage of Bednar, 496 N.E.2d 1149
(Ill. App. 1986) (holding that parent's request to remove child
who was the subject of a joint custody order is governed by
child's best interests); Ayers, 508 N.W.2d at 515 (court applied
best interests standard in considering mother's request to
relocate children who were subjects of a joint legal and physical
custody order).
9 The superior court is vested with broad discretion in
making child custody determinations. Gratix v. Gratix, 652 P.2d
76, 79 (Alaska 1982). This court will reverse the superior
court's "resolution of custody issues only if this court is
convinced that the record shows an abuse of discretion or if
controlling factual findings are clearly erroneous." Id. at 79-
80. "Abuse of discretion is established if the trial court
considered improper factors or failed to consider statutorily-
mandated factors, or improperly weighted certain factors in
making its determination." Id. at 80.
10 Alaska Statute 25.24.150(c) provides:
In determining the best interests of the
child the court shall consider:
. . . .
(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; . . . .
11 However, we cautioned trial courts "that it is a
parent's present ability to provide for the needs of the child
which is at issue, not a parent's past." Id. at 305 n.7.
12 In Evans, we held that the superior court did not abuse
its discretion in awarding primary physical custody of the
children to their father based on the nonstatutory factors of the
added stability the children might gain from continuing to live
in their family residence, and the potential instability they
might suffer from being uprooted immediately following a divorce
and having to adjust to a new family setting.
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