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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Joy B v. Everett B (11/1/2019) sp-7417

Joy B v. Everett B (11/1/2019) sp-7417

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

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

                                                                                                                            

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                       



JOY  B.,                                                          )  

                                                                  )    Supreme  Court  No.  S-17129  

                                Appellant,                        )  

                                                                                                                                  

                                                                  )    Superior Court No. 2KB-16-00047 CI  

           v.                                                     )  

                                                                                            

                                                                  )    O P I N I O N  

                    

EVERETT B.,                                                       )  

                                                                                                                 

                                                                  )    No. 7417 - November  1, 2019  

                                Appellee.                         )  

                                                                  )  



                                                                                                           

                      A            

                         ppeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                              

                      Second Judicial District, Kotzebue, Paul A. Roetman, Judge.  



                                                                                                                    

                      Appearances:             Bonnie  J.  Coghlan,  Downes,  Tallerico,  &  

                                                                                                             

                      Schwalm Law Firm, LLC, Fairbanks, for Appellant.  Terri- 

                                                                                                       

                      Lynn Coleman, Law Office of Rita T. Allee, P.C., Fairbanks,  

                            

                      for Appellee.  



                                                                                                                         

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

                                           

                      and Carney, Justices.  



                                            

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                          

                      A married couple with a ten-year-old son separated in 2014. Following an  



                                                                                                                                  

evidentiary hearing on temporary orders, the trial court found that the father had a history  



                                                                                                                                

of perpetrating domestic violence and ordered him to complete an intervention program  



                                                                                                                         

for batterers before he would be allowed unsupervised visitation with the child.  


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

                                                                            At the later custody trial, the director of the intervention program testified                                                                                                                                                                                                                                                                                                  



that the father had sought entry to the program but had been determined to be unsuited                                                                                                                                                                                                                                                                                                                                                                   



 for it because he was a victim of domestic violence rather than a perpetrator.                                                                                                                                                                                                                                                                                                                                                                                              The  



 custody investigator's report confirmed these conclusions and recommended that the                                                                                                                                                                                                                                                                                                                                                                                                    



 father be granted sole legal and primary physical custody of the child because of the                                                                                                                                                                                                                                                                                                                                                                                                 



mother's coercive influence and her inability to meet the child's mental and emotional                                                                                                                                                                                                                                                                                                                                  



needs.  



                                                                            Relying primarily on the testimony of the batterers' program director and                                                                                                                                                                                                                                                                                                                                



the custody investigator, the trial court concluded that the father had overcome the                                                                                                                                                                                                                                                                                                                                                                                                  



 statutory presumption against awarding custody to a parent with a history of perpetrating                                                                                                                                                                                                                                                                                                                                            



 domestic violence and followed the investigator's recommendation, granting the father                                                                                                                                                                                                                                                                                                                                                                                  



 sole legal and primary physical custody of the child.                                                                                                                                                                                                                                                 The mother, on appeal, challenges                                                                                                      



this decision, arguing that the evidence did not support a conclusion that the statutory                                                                                                                                                                                                                                                                                                                                                               



presumption was overcome because the father never received any treatment or therapy.                                                                                                                                                                                                                                                                                                                                                                       



                                                                            We   conclude   that   the   trial   court   could   lawfully   consider   the   expert  



testimony that the father was not suited for a batterers' intervention program when                                                                                                                                                                                                                                                                                                                                                                                      



 deciding   whether   the   statutory   presumption   against   awarding   him   custody   was  



 overcome.   We also conclude that the court did not clearly err or abuse its discretion in                                                                                                                                                                                                                                                                                                                                                                                                    



its consideration of the child's best interests.                                                                                                                                                                                                                              We therefore affirm the trial court's                                                                                                                                             



 custody decision.                                                                                    



II.                                   FACTS AND PROCEEDINGS                                                              



                                      A.                                    Facts  

                                                                                                                                                                                                                                                                                                                                    1   Ten years later they became  

                                                                            Joy B. and Everett B. were married in 1998.                                                                                                                                                                                                                                                                                                                                        



                                      1                                     We  use  pseudonyms  to  protect  the  parties'  privacy.  



                                                                                                                                                                                                                                              -2-                                                                                                                                                                                                                              7417  


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

                                                                                                                                

the parents of twins, one of whom died of Sudden Infant Death Syndrome at only 21  



                

days old.  



                                                                                                                              

                    The marriage was turbulent.  Joy claimed that Everett was unfaithful and  



                                                                                                                               

that he committed acts of domestic violence; she later came to blame Everett for the  



                                                                                                                             

death of their child.   Everett admitted to an affair but claimed that Joy abused him  



                                                                                                                         

emotionally  and  physically,  once  even  hiring  an  assassin  to  kill  him.                                  The  parties  



                                                                                                                          

separated in May 2014.  Everett filed for divorce in December 2015, asking for shared  



                                                                                                                        

legal and primary physical custody of their child.  Joy asked for sole legal and primary  



                            

physical custody.  



          B.        Proceedings  



                                                                                                                            

                    In May 2016 the trial court held a hearing on temporary orders.  The court  



                                                                                                                 

found that "it was more likely than not that [Everett] has  a  history of perpetrating  



                                                                                                                              

domestic violence," based on two occasions when Everett placed Joy in "reasonable fear  



                                                                                                                           

of bodily harm":  in one incident he destroyed a child gate in front of Joy and the child,  



                                                                                                                

but the other incident was not identified.  The court held that under AS 25.24.150(j),  



                                                                                                                 

Everett could  not have unsupervised  visitation until he completed  "an  intervention  



                                                                                                                              

program for batterers and a parenting education program."   The court awarded Joy  



                                                                                                                    

interimsolelegalcustody and primaryphysical custodyandlimited Everettto supervised  



                 

visitation.  



                                                                                                                           

                    Shortly thereafter Everett met with Lisa Hay, a licensed clinical social  



                                                                                                                              

worker, who performed an intake assessment for a batterers' intervention program. Hay  



                                                                                                                               

concluded that Everett was not a perpetrator of domestic violence but rather a victim, and  



                                                                                                                                  

that he was therefore "not appropriate for our program."  The court also appointed a  



                                                                                                                         

custody investigator, who filed a lengthy report based on her observations of the parents  



                                                                                                              

and  her  review  of  records  such  as  the  parents'  text  messages  and  psychological  



                                                                                                                             

assessments.           The  investigator's  conclusions  mirrored  those  of  Hay:                              Everett  was  



                                                               -3-                                                         7417
  


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

                                                                                                                      

"passive and avoidant," whereas Joy was "aggressive and domineering" and "engaged  



                                                                                                                              

in  long-standing  patterns  of  battering  through  coercion,  control,  manipulation  and  



                                                                                                                               

domination over [Everett] physically and psychologically." The investigator found that  



                                                                                                                                 

thesebehaviors prompted concerns about thechild's "current well-being and whether his  



                                                                                                                        

needs are being met."   She recommended that Everett have sole legal and primary  



                                                                                                                               

physical custody of the child and that Joy have "supervised weekly Skype visits" and  



                                                            

enroll in cognitive behavioral therapy.  



                                                                                                                             

                    Trial was held over several days in early 2018.   Joy and Everett both  



                                                                                                                        

testified, along with Hay, the custody investigator, Joy's retained expert in custody  



                                                                                                                         

investigations  (who  critiqued  the  custody  investigator's  report),  Everett's  current  



                                                                                                                     

domestic partner,  an acquaintance of Joy's,  and  a psychologist who had  evaluated  



                                                                                                                                 

Everett's mental state on the custody investigator's referral. The court memorialized its  



                                                                                                              

decision  in  a  summary  order  that  largely  accepted  the  custody  investigator's  



                                                                                                                           

recommendations, awarding Everett sole legal and primary physical custody and giving  



                                                                                                                 

Joy supervised visits while ordering her to enroll in cognitive behavioral therapy.  



                                                                                                                                      

                    The court more fully explained its decision in a later final custody order.  



                                                                                                                       

The court declined to change its interim finding that Everett had perpetrated domestic  



                                                                                                                   

violence; however, it found that "[Everett's] breaking the baby gate was 'situational  



                                                                                               

violence' and not pattern violence" and that Joy, on the other hand, was a "perpetrator  



                                                                                                                      

of  domestic  violence"  through  "intimate  partner  stalking  behaviors"  and  "ongoing  



                                                                                                                                

harassment behaviors" designed to give her "coercive control" over both Everett and the  



                                                                                                                    

child.  The court found by a preponderance of the evidence that Everett had "overcome  



                                                                                                                                 

the rebuttable presumption that previously prohibited a custody award to him," based on  



                                                                                                                               

the facts that "[Everett] was not recommended for [the] DV batterers['] program," "he  



                                                                                                                                

does not engage in substance abuse," and "the best interests of the child require his  



                                                        

participation as a custodial parent."  



                                                                -4-                                                         7417
  


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

                                   Joy appeals. She challenges the court's decision that Everett overcame the                                                                                                          



 statutory presumption against awarding him custody, its decision that awarding custody                                                                                                                    



to Everett was in the child's best interests, and its decision to condition her unsupervised                                                                                                 



visitation on the substantial completion of mental health treatment.                                                                                                           



III.              STANDARD OF REVIEW                              



                                   The   trial   court   has   broad   discretion   in   child   custody   matters,   and  its  



decision "will be set aside only if the entire record demonstrates that the controlling                                                                                                           

findings of fact are clearly erroneous or that the trial court abused its discretion."                                                                                                                           2  "A  



                                                                                                                                                                                                                  

finding of fact is clearly erroneous when this court is left with a definite and firm  



                                                                                                                                 3  

                                                                                                                                                                                                  

conviction that the trial court has made a mistake."                                                                                  "Abuse of discretion is established  



                                                                                                                                                                                                                

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



                                                                                                                                                                                                       

to consider statutorily mandated factors,orassigneddisproportionateweightto particular  



                                                                               4  

                                                           

factors while ignoring others." 



                                   "Whether  the  [trial]  court  applied  the  correct  standard  in  a  custody  

                                                                                                                                                                                                         



determination is a question of law we review de novo, determining the rule of law in  

                                                                                                                                                                                                                         

light of precedent, reason, and policy."5                                                               We review de novo whether a superior court's  

                                                                                                                                                                                                             

findings satisfy statutory requirements."6  

                                                                  



                 2                Hamilton  v.  Hamilton,  42  P.3d   1107,   1111  (Alaska  2002).  



                 3                Id.  



                 4                Id.  



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



                 6                 Timothy   W.   v.   Julia   M.,   403   P.3d   1095,   1100   (Alaska   2017)   (quoting  



Dale  H.  v.  State, Dep't  of  Health  &  Soc.  Servs.,   Office  of   Children's  Servs.,  235  P.3d  

203,  210  (Alaska  2010)).  



                                                                                                            -5-                                                                                                   7417
  


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

IV.	      DISCUSSION  



                                                                                                                       

          A.	       The  Trial  Court  Did  Not  Clearly  Err  By  Finding  That  Everett  

                                                                                                                      

                    RebuttedTheStatutoryPresumptionAgainst AwardingHimCustody.  



                                                                                                                                 

                    Alaska  Statute  25.24.150(g)  imposes  "a  rebuttable  presumption  that  a  



                                                                                                                                  

parent who has a history of perpetrating domestic violence against the other parent, a  



                                                                                                                       

child, or a domestic living partner may not be awarded sole legal custody, sole physical  



                                                                                                                               

custody, joint legal custody, or joint physical custody of a child."  Subsection (h) of the  



                                                                                                                                     

statute provides that "[t]he presumption may be overcome" if three conditions are met:  



                                                                                                                               

(1) "the perpetrating parent has successfully completed an intervention program for  



                                                                                                                     

batterers, where reasonably available"; (2) "the parent does not engage in substance  



                                                                                                                                  

abuse"; and (3) "the best interests of the child require that parent's participation as a  



                                                                                                        

custodial parent because the other parent is absent, suffers from a diagnosed mental  



                                                                                                                      

illness that affectsparenting abilities,or engages insubstanceabusethat affectsparenting  



                                                                                                                                     

abilities, or because of other circumstances that affect the best interests of the child."  



                                                                                                                                 

These  three  conditions  for  overcoming  the  presumption  must  be  proven  by  a  



                                               7  

                                                   

preponderance of the evidence. 



                                                                                                                        

                    1.	       The trial court did not err by relying on evidence that Everett  

                                                                                                                          

                              had applied for entry to a batterers' program but was found  

                                                    

                              unsuited for it.  



                                                                                                               

                    Following the custody trial the court reaffirmed its earlier determination  



                                                                                                                               

that Everett had  a history  of perpetrating  domestic  violence; this kept in place the  



                                                                                                                              

statutory presumption against awarding him custody.   The custody investigator had  



                                                                                                                      

recommended that the court apply the statutory analysis governing situations in which  



                                                                                                                               

both parents have histories of perpetrating domestic violence; in such circumstances the  



                                                                                                                               

court should award custody "to the parent who is less likely to continue to perpetrate the  



          7         AS 25.24.150(h).  

                           



                                                               -6-	                                                            7417  


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

violence and require that the custodial parent complete a treatment program," or, if                                                                          

necessary, award custody "to a suitable third person."                                              8  But the court declined to find,  



                                                                                                                                                           

"at this time, that [Joy] has a history of perpetrating domestic violence."  Instead, the  



                                                                                                                                                           

court found that Everett had met the three conditions necessary for overcoming the  



                                                                                                                                                            

statutory presumption. The court reasoned that (1) "[Everett] was not recommended for  



                                                                                                                                                    

[adomesticviolence]batterers[']program,"(2) "hedoesnot engage in substanceabuse,"  



                                                                                                                                                                

and (3) "the best interests of the child require his participation as a custodial parent."  



                                                                                                                                                          

                         Joy argues that the court's finding on the first element - that Everett had  



                                                                                                                                                   

not been recommended for a batterers' program -failed to satisfy the element's express  



                                                                                                                                   

requirement:  successful completion of "an intervention program for batterers, where  

                                          9   She notes that when deciding interim custody, the court had  

                                                                                                                                                          

reasonably available." 



"ordered  [Everett]  to  complete  a  batterer[s']  program  and  a  parenting  education  

                                                                                                                                              



program" before he could have unsupervised visitation, but "[h]e did neither."   The  

                                                                                                                                                         



question we must decide is whether the court could lawfully conclude that Everett  

                                                                                                                                                   



satisfied the presumption's first condition with evidence that he asked to be admitted to  

                                                                                                                                                              



a batterers' program but, having been examined by an expert as part of the intake  

                                                                                                                                                     



process,  "was  not  recommended  for"  the  program  because  he  posed  no  risk  of  

                                                                                                                                                            



committing domestic violence in the future.  

                                                                                    



                         In Stephanie F. v. George C. we held "that the rebuttable presumption in  

                                                                                       



AS  25.24.150(g)  may  be  overcome  by  means  other  than  the  completion  of  an  

                                                                                                                                                           

intervention program for batterers."10  We reached this conclusion after close analysis of  

                                                                                                                                                             



the statutory language and legislative history: the statute says that the presumption "may  

                                                                                                                                                        



            8            AS 25.24.150(i).   



            9            AS 25.24.150(h).   



             10          270 P.3d 737, 753 (Alaska 2012).                   



                                                                              -7-                                                                      7417
  


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

                                                                                                                                      11  

be overcome by completing an intervention program for batterers,"                                                                         and the legislature     



omitted potentially limiting language such as "shall be overcome                                                                     only," as used in the   

                                                                                                12    In Stephanie F., much like here, the  

Louisiana statute on which Alaska's was based.                                                                                                                          



husband'stherapist testifiedthat"traditionalbatterers'interventiongroupsessionswould  

                                                                                                                                                                   



be  'contraindicated'  in  [the  husband's]  case  and  'could  be  more  detrimental  than  

                                                                                                                                                                     

productive.' "13                   The husband had, however, completed "twelve weeks of one-on-one  

                                                                                                                                                       



therapy," during which "he made significant progress to 'understand and change his  

                                                                                                                                                                        



behavior[]' and improve his empathy skills," though the superior court found that this  

                                                                                                                                      



counseling  "was  not  comparable  to  the  completion  of  a  batterers'  intervention  

                                                                                                                                                     

program."14                We remanded the case for the superior court to determine "whether the  

                                                                                                                                                                        

counseling was sufficient to rebut the statutory presumption."15  

                                                                                                                                     



                           In this case the court found that Everett's attorney had referred him to  

                                                                                                                                                                          



LEAP,  Inc.,  "a  state-approved  alternative  to  violence  program,"                                                                     "to  do  an  intake  

                                                                                                                                                                  



assessment to determine if he would be appropriate for their batterers['] intervention  

                                                                                                                                                      



program."  Everett accordingly went to LEAP's offices and asked to be admitted to the  

                                                                                                                                                                         



"Alternatives to Violence program."  He was then professionally evaluated by Hay, the  

                                                                                                                                                                         



program's executive director and a licensed clinical social worker, who at trial "was  

                                                                                                                                                          



qualified as an expert in the area of behavioral risk assessment evaluations for men and  

                                                                                                                                                                       



women related to the LEAP[,] Inc. Program."  Hay evaluated Everett using a variety of  

                                                                                                                                                                           



              11           AS 23.30.150(g) (empahsis added).                        



              12           Stephanie F.             , 270 P.3d at 752-53 (emphasis in original) (quoting Louisiana                                         



Revised Statute 9:964(A)).                              



              13           Id.  at  754.  



              14           Id.  



              15           Id.  



                                                                                    -8-                                                                             7417
  


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

                                                                                                                      

testing  techniques,  including  a  "Behavior  Inventories"  assessment,  an  Adverse  



                                                                                                                             

Childhood  Experiences  Study  questionnaire,  and  an  Ontario  Domestic  Abuse  Risk  



                                                                                                                     

Assessment.  She also relied on interviews of Everett, Joy, Everett's current girlfriend,  



                                                                                                                              

and a co-worker and reviewed several years of Everett's private journal entries.  Hay  



                                                                                                                     

determined  that  Joy  was  a  highly  controlling  and  abusive  partner  in  the  marriage,  



                                                                                                                                  

whereas Everett was largely passive and fearful. Finding that Joy was the perpetrator of  



                                                                                                                               

domestic violence in the relationship through "psychological and emotional abuse," Hay  



                                                                                                                        

concluded that "[Everett] was not appropriate for the batterer[s'] intervention program  



                                                                                                                                 

male offenders group, because he was a victim of domestic violence and would be  



                                                                                                                             

eligible for counseling."  The court specifically found that Hay's LEAP report "was  



                                                                                                                             

credible  and  was  an  appropriately  conducted  behavioral  risk  assessment  that  once  



                                                                                                                                  

completed confirmed [Hay's] initial assessment that [Everett] was not the perpetrator of  



                                

domestic violence."  



                                                                                                                                

                    The custody investigator's report reached much the same conclusions: that  



                                                                                                                       

Joy engaged in "intimate partner stalking behaviors which [are] a form of domestic  



                                                                                                                       

violence" as well as "ongoing harassment behaviors" that were "accusatory, blaming,  



                                                                                                                              

insulting,   shaming,   belittling,   and   threat[en]ing."                           The   court   agreed   with   the  



                                                                                                                          

investigator's conclusion that Joy exercised "a form of coercive control" over Everett  



                                                                                                                               

that "amounted to mental and emotional abuse" of both Everett and the child and that this  



                                                                           

made Joy a "perpetrator of domestic violence."  



                                                                                                                             

                    The  court  qualified  its  discussion  of  domestic  violence  on  Joy's  part,  



                                                                                                                                

however.  While it found that Joy had "engaged in coercive psychological abuse," the  



                                                                                                                               

court found that "the claims of physical abuse were [not] corroborated." Observing that  



                                                                                                               

"the parties [had] not presented the [c]ourt with argument that [Joy's] psychological  



                                                                                                                     

abuse alone amounts to a history of perpetrating domestic violence," the court concluded  



                                                                                                                      

that  it  therefore  could  not  "find  that  [Joy]  has  a  history  of  perpetrating  domestic  



                                                                -9-                                                         7417
  


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

violence."   We note the apparent conflict between this finding and the court's earlier                                                                                                                                                                             



agreement with the investigator that Joy was a "perpetrator of domestic violence," based                                                                                                                                                                               



on conduct that was "ongoing," "during the relationship and continuing afterwards," and                                                                                                                                                                                       



"over time . . . amounted to mental and emotional abuse towards both [Everett and the                                                                                                                                                                                          



child]."   If Joy was a "perpetrator of domestic violence," then the court's findings may                                                                                                                                                                                  



support the conclusion that her conduct amounted to "a history of domestic violence."                                                                                                                                                                                                       



But the court did not analyze Joy's stalking or "harassment behaviors" in the context of                                                                                                                                                                                           

                                                                                                                                                                                                                       16            We  consider  it  

any   specific   statutes  by   which   domestic   violence   is   defined.                                                                                                                                                                                                       



unnecessary to do so either, because we find no error in the trial court's conclusion that  

                                                                                                                                                                                                                                                                             



Everett rebutted the presumption that he could not be awarded custody.  

                                                                                                                                                                                                             



                                           We                   do               not                read                    the                first                 condition                               for               overcoming                                      the  

                                                                                                                                                                                                                                                                        



presumption - successful completion of "an intervention program for batterers" - as  

                                                                                                                                                                                                                                                                                  



intending to require an empty exercise.  The purpose of the presumption is "to protect  

                                                                                                   



children from potentially adverse custody determinations," specifically "to decrease the  

                                                                                                                                                                                                                                                                               



likelihood that children [will] be placed in the custodial household where domestic  

                                                                                                                                                                                                                                                           

violence exists."17   Here, the evidence supports the trial court's finding - based on the  

                                                                                                                                                                                                                                                                               



opinions of an expert in batterers' programs and a custody investigator, both of whom  

                                                                                                                                                                                                                                                                     



the court specifically found  credible - that Everett poses no threat of committing  

                                                                                                                                                                                                                                                   



                      16                   AS   25.90.010   provides  that   in   Title   25,   "domestic   violence"   has   the  



meaning given in AS 18.66.990, which defines the term to include crimes against the                                                                                                                                                                  

person, burglary, criminal trespass, arson, criminal mischief, terrorist threats, violating                                                                                                                                                                 

a protective order, harassment, and cruelty to animals.                                                                                                                         We recognize that the definition                                          

of domestic violence used by a therapist to determine whether someone might benefit                                                                                                                                                                               

from a batterers' intervention program may differ from that used by a court based on the                                                                                                                                                                                       

governing law.                                      



                      17                    Williams v. Barbee, 243 P.3d 995, 1001 & nn.25-26 (Alaska 2010) (citing  

                                                                                                                                                                                                                                                                    

House Bill 385, 23d Leg., 2d Sess. (2004) and supporting legislative history).  

                                                                                                                                                                                                                                 



                                                                                                                                      -10-                                                                                                                               7417
  


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

domestic violence and therefore did not need, and would not in fact benefit from, a                                                                            



batterers' intervention program.                               Importantly, he sought to enroll in the program as                                            



directed but was found to be ineligible.  The statutory purpose was thus satisfied.                                                                       We  



conclude   that   under  these   circumstances   the   court   did   not   err   in   deciding   that   the  



presumption had been "overcome by means other than the completion of an intervention                                                       

program for batterers," as contemplated by                                       Stephanie F.            18  



                         2.	         A court may consider the nature of the domestic violence when  

                                                                                                                                                       

                                     deciding whether the presumption against awarding custody to  

                                                                                                                                                              

                                     the perpetrator has been overcome.  

                                                                                        



                         Joy contends that the trial court impermissibly minimized Everett's history  

                                                                                                                                                     



of perpetrating domestic violence in order to lower the bar he had to cross to rebut the  

                                                                                                                                                            



presumption. She contends that the court relied too heavily on the testimony and reports  

                                                                                                                                                     



of Hay and the custody investigator, who "substitut[ed] their own definition of what it  

                                                                                                                                                               



means to have a history of perpetrating domestic violence" for the statutory language by  

                                                                                                                                                             



concluding that Everett's acts were "situational" and therefore not that serious.  But we  

                                                                                                                                                            



have repeatedly recognized that trial courts may consider the "situational" nature of  

                                                                                                                                                             



domestic violence when deciding whether the presumption applies and whether it has  

                                                                                                                                                           



been overcome.  

           



                         In  Stephanie  F.,  for  example,  the  superior  court  accepted  an  expert's  

                                                                                                                                                 



testimony that the husband's acts of domestic violence amounted to "situational violence  

                                                                                                                                                  



as [a] result of a high conflict" rather than " 'a pattern of intimate partner violence[,]'  

                                                                                                                                            



which [the expert] defined as a 'pattern of control, [or] intimidation, often solidified  

                                                                                                                                               

through some type of violence by one partner over the other.' "19                                                           We held that it was  

                                                                                                                                              



appropriate for the court to consider the violence's situational nature when "determining  

                                                                                                                                         



             18          270  P.3d  at  753.  



             19          Id.  at  749.  



                                                                             -11-                                                                            7417  


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

whether [the husband] overcame the statutory presumption and gauging the risk of future                                                    

violence.   This difficult and important assessment is one best made by the trial court.                                                        "20  



                       In Mallory D. v. Malcolm D. the superior court found that each parent had  

                                                                                                                                               



committed two acts of domestic violence and therefore each had "a history of domestic  

                                                                                                                                      

violence" as defined in AS 25.24.150(h).21  Under these circumstances -when the court  

                                                                                                                                             



finds  that  "both  parents  have  a  history  of  perpetrating  domestic  violence"  -  the  

                                                                                                                                               



controlling statute is AS 25.24.150(i), which requires the court to "award sole legal and  

                                                                                                                                               



physical custody to the parent who is less likely to continue to perpetrate the violence."  

                                                                                                                                                       



The superior court in Mallory D. determined, however, that neither party was less likely  

                                                                                                                                            



than the other to commit further acts of violence; it found that the parents' acts were  

                                                                                                                                             

"equal,"  situational,  and  unlikely  to  recur.22                                    It  determined,  therefore,  that  the  

                                                                                                                                               



presumption against an award of custody did not apply to either parent and that it was  

                                                                                                                            

"free to fashion a custody decree that meets the best interests of the children."23   We saw  

                                                                                                                                               

                                                                                                                                       24   In so  

no clear error in the court's findings of fact and agreed with its legal analysis.                                                               

                                                                                                                         



doing we "emphasize[d] that the trial court must take  a  qualitative approach when  

                                                                                                                                           



considering the nature and extent of the domestic violence committed by both parents  

                                                                                                                                         



rather than merely counting the number of domestic violence occurrences to determine  

                                                                                                                                    



            20         Id.  (emphasis  added);  see  also  id.  at  754  (noting  that  trial  court  "is  entitled  



to  significant deference" when determining that acts of domestic violence "were not  tools  

used  to  effectuate  a  strategy  of  control,  overbearing  power,  or  manipulation"  but  rather  

"were  acts  of  situational  violence  and  unlikely  to  reoccur").  



            21         290 P.3d 1194, 1206 (Alaska 2012).  

                                                                           



            22         Id. at 1206-07 & n.28.  

                                                      



            23         Id. at 1206 (quoting trial court decision).  

                                                                             



            24         Id. at 1206-07.  

                                  



                                                                       -12-                                                                 7417
  


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

whether the rebuttable presumption in AS 25.24.150(g) applies."25  We observed that,  



for example, "two heinous acts" by one parent should not be weighed the same as "two  

                                                                                                                                                  



comparatively  minor  incidents"  by  the  other  parent  when  determining  whether  the  

                                                                                                                                                    



                                     26  

presumption applies.                       

                        



                        We  conclude  that  the  trial  court  did  not  err  when  it  considered  the  

                                                                                                                                                    



seriousness  of  Everett's  incidents  of  domestic  violence  -  and  specifically  their  

                                                                                                                                                 



situational  nature  -  in  the  context  of  deciding  whether  he  had  overcome  the  

                                                                                                                                                   



presumption against awarding him custody of the parties' child.  

                                                                                                                   



            B.	         The Trial Court  Did Not  Clearly  Err Or Abuse Its Discretion By  

                                                                                                                                                    

                        Determining  That  It  Was  In  The  Child's  Best  Interests  To  Be  In  

                                                                                                                                                     

                        Everett's Sole Custody.  

                                                    



                        Joy also challenges the trial court's determination that it was in the child's  

                                                                                                                                              



best interests to award Everett sole legal and primary physical custody; she highlights  

                                                                                                                                 



the facts that she was the child's primary caregiver up to the time of trial and that  

                                                                                                                                                   



awarding custody to Everett in California would uproot the child from"his lifetime home  

                                                                                                                                                 



in  Kotzebue."                Joy  again  contends  that  the  trial  court  relied  too  heavily  on  the  

                                                                                                                                                    



recommendations of Hay and the custody investigator, particularly their conclusions  

                                                                                                                                     



"that [Joy] was a perpetrator [of] domestic violence and [Everett] the victim," findings  

                                                                                                                                            



that "carried over into the court['s] consideration of the [other] best interest[s] factors."  

                                                                                                                                                            



            25	        Id.  at 1207.   



            26         Id. ;  see also Dennis Q. v. Monika M.                           , No. S-15084, 2014 WL 1888270, at                             



                                                                                                                                                 

*7 (Alaska May 7, 2014) (noting in context of AS 25.24.150(i) - applicable when "both  

parents have a history of perpetrating domestic violence" - that "the severity of the                                                                

                                                                                                                                               

[parents'] assaults is a reasonable factor for making a difficult prediction about future  

                                                                                                                                                   

behavior" and "is especially appropriate" in light of findings that wife's violence was  

"situational to therelationship and circumstances"whereas                                              husband's was "typical ofthe                  

                                                                                                                                                            

violence seen where a person is using force to exert power and control over another").  

  



                                                                         -13-	                                                                   7417
  


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

                                                                                                                                

                    When making an award of child custody, courts are required to consider the  



                                                    

best interests factors listed in AS 25.24.150(c):  



                                                                                                      

                    (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 other  

                                                                                                            

                    members of the household directly affects the emotional or  

                                                              

                    physical well-being of the child;  



                                                                                   

                    (9) other factors that the court considers pertinent.  



                                                                                                                               

"In awarding custody the court may consider only those facts that directly affect the  



                                                              -14-                                                         7417
  


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

                                      27  

well-being of the child."                 



                                                                                                                                  

                     The trial court considered each of these best interests factors in turn.  Joy  



                                                                                                                                       

argues that the court "overlooked pertinent factors," "considered improper factors[,] . . .  



                                                                                                                           

and assigned disproportionate weight to particular factors."   Her arguments directly  



                                                                                                                       

challenging the court's findings on domestic violence are answered in the discussion  



                                                                     

above.  We analyze her other arguments in turn.  



                                                                                                                                  

                     Joy challenges the trial court's agreement with the custody investigator that  



                                                                                                                         

the"dynamic"of"parental alienation"was "apparent in thiscase"; this finding supported  



                                                                                                                             

the court's conclusion in its discussion of factor (6) that Joy was less willing than Everett  



                                                                                                                                   

to foster the child's relationship with the other parent.  Joy contends that there is no  



                                                                                                                                

evidence to show that the child "is alienated from either parent"; she argues that the child  



                                                                                                                                  

"was happy to see his father" and "was at ease in the company of both parents." The trial  



                                                                                                                

court acknowledged the absence of expert testimony on this issue, but it reasoned that  



                                                                                                                                

"the record presents a mound of evidence from which the [c]ourt can fairly easily draw  



                                                                                                                        

conclusions  about  the  relationship  that  are  characteristic  of  the  parental  alienation  



                                                                                                                       

dynamic."  The court cited the facts that Joy "has prevented and frustrated [Everett's]  



                                                                                                                            

visitation in the past"; that she "has been controlling of how visits with [Everett] occur,"  



                                                                                                                     

limiting contact to "email, not phone or video [S]kype"; that she "sees her relationship  



                                                                                                                                

with [Everett] as a package deal, i.e., 'If you want me, you get son too, if you don't want  



                                                                                                                                  

me, then you don't get son either' "; that "numerous texts and emails" indicate her  



                                                                                                                               

"angry view of [Everett]" and her negative comments about his contact with the child;  



                                                                                                                                 

and that despite "her [expressed] desire to foster a relationship between father and son,  



                                                                                                                                         

[she] effectively makes visitation and interactions between father and son difficult."  



                                                                                                                              

These findings of fact are supported by Everett's trial testimony, the credibility of which  



          27  

                            

                     AS 25.24.150(d).  



                                                                -15-                                                               7417  


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

                                                                                                            28  

was for the trial court to determine,                                                                             as well as the LEAP report and the custody report.                                                                                                           



Given its underlying factual findings, which are not clearly erroneous, the court's use of                                                                                                                                                                            



the diagnostic label "parental alienation" to summarize its thoughts on the issue does not                                                                                                                                                                         



persuade us that it abused its discretion when weighing factor (6).                                                                                                                               



                                          Joy argues that the trial court also erred when weighing factor (7) - "any                                                                                                                                          



evidence of domestic violence, child abuse, or child neglect in the proposed custodial                                                                                                                                                          



household or a history of violence between the parents" - because it considered what                                                                                                                                                                         



it termed Joy's "stalking type behavior." Joy argues that her behavior does not meet the                                                                                                                                                                           



definitions of "domestic violence, child abuse, or child neglect" and that there was no                                                                                                                                                                             

                                                                                                                                                                                                             29        But as explained  

showing that it "directly affect[ed] the well-being of the child."                                                                                                                                                                           



above, the court made findings - supported by the evidence - that Joy's behavior  

                                                                                                                                                                                                                                                



interfered  with  the  relationship  between  Everett  and  the  child.                                                                                                                                          And  even  if  Joy's  

                                                                                                                                                                                                                                                          



behavior did not amount to "domestic violence, child abuse, or child neglect," the court  

                                                                                                                                                                                                                                                             



was entitled to consider it under the catch-all factor of AS 25.24.150(c)(9):   "other  

                                                                                                                                                                                                                                                        



factors that the court considers pertinent."  We see no error in the court's consideration  

                                                                                                                                                                                                                                  



of Joy's "stalking type behavior" in reaching its custody decision.  

                                                                                                                                                                                 



                                          Joy also argues that the trial court erred in its discussion of factors (1) and  

                                                                                                                                                                                                                                                                 



(2) - the child's needs  and the parents'  "capability  and  desire . .  . to  meet these  

                                                                                                                                                                                                                                                           



needs" - when it criticized Joy "for not always obtaining the medical care the custody  

                                                                                                                                                                                                                                                    



investigator believed the child needed." Joy contends that "many of the alleged failings  

                                                                                                                                                                                                                                                     



occurred  while  the  parents  were  living  together,  making  it  difficult  to  assign  

                                                                                                                                                                                                                                                      



responsibility to only the mother."  But in fact a majority of the incidents identified by  

                                                                                                                                                                                                                                                                    



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



                     29  

                                                                                                                                                                                                                                                              

                                         See AS 25.24.150(d) ("In awarding custody the court may consider only  

                                                                                                                                                                

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



                                                                                                                                -16-                                                                                                                         7417
  


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

                                                                                                                                 

the   custody   investigator,   involving   recommendations   for   circumcision   and   a  



                                                                                                                             

tonsillectomy, occurred in 2015 and 2016, after the couple separated and while the child  



                                                                                                                                 

was in Joy's sole care.   We therefore see no clear error in the court's assignment of  



                                  

responsibility to her.  



                                                                                                                          

                    Joy takes issue in a sentence or two with several other aspects of the court's  



                                                                                                                    

best interests determination.  She asserts that the court "gave no weight to [Everett's]  



                                                                  

failure to provide financial support."  It is true that the court did not address this issue  



                                                                                                                            

directly, but one exhibit at trial was Everett's record of child support payments, about  



                                                                                                                                 

which he was questioned briefly.  He admitted that he was in arrears but testified that he  



                                                                                                                         

was working on getting caught up.  There is nothing in the record or in Joy's cursory  



                                                                                                                 

mention of the issue that makes us believe the court should have given it significant  



weight.  



                                                                                                                                

                    Joy argues that the trial court "ignored [Everett's] lack of contact with his  



                                                                                                                     

son" and that his failure to maintain closer contact despite Joy's perceived resistance  



                                                                                                                       

demonstrates a lack of interest. The court did not ignore these issues; rather, it grappled  



                                                                                                                

with them in the course of reaching its decision.   The court noted that "[e]valuating  



                                                                                                                        

[Everett's] desire to raise [the child] is initially hard since he has not made many attempts  



                                                                                                    

to visit his son, though there have been apparent difficulties in communicating with  



                                                                                                                         

[Joy]." The court expressly disagreed with Joy that Everett's failure to visit was because  



                                                                                                                              

he  did  not  want  to  spend  time  with  the  child:                          "The  [c]ourt  disagrees  with  this  



                                                                                                                               

characterization in light of the evidence that [Everett] had made attempts to visit his son  



                                                                                                                              

in Kotzebue and in Maine, but these efforts [were] not always met with support . . . [and]  



                                                                                                                      

may have been difficult to undertake in the face of a domineering wife that he perceived  



                                                                                                                                

as having apparent control of their son's availability."  The court concluded that the  



                                                                                                                                 

evidence "indicates that [Everett and the child] have a rapport and familiarity that can be  



                                                               -17-                                                         7417
  


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

built upon with more time and opportunity, free from [Joy's] control and influence." We                                                                                                                                                                                                  



see no clear error in these findings of fact.                                                                                   



                                             Joy also argues that the court ignored how well the child was doing in                                                                                                                                                                           



school and in the Kotzebue community while in her care.   But the court did recognize   



this, observing that "[Joy] has generally been successful in raising" the child and "has                



generally demonstrated capability and desire to meet most of [the child's] needs."                                                                                                                                                                                                    The  



court's concernwasfor "[Joy's] capacity to emotionally support"thechild;                                                                                                                                                                                 it determined  



that "the current home in Kotzebue with [Joy] is not suitable for [the child] at present,                                                                                                                                                   



since his emotional needs are not being met and he has experienced, and continues to                                                                                                                                                                                                          



hear   and   see   firsthand,   [Joy's]   negative   views   towards   [Everett]."     Weighing   the  



importance of the child's social and educational needs on the one hand and his emotional                                                                                                                                                                            

                                                                                                                                                                                                                                              30       The court did  

needs on the other is a matter committed to the trial court's discretion.                                                                                                                                                                                                                 



not abuse that discretion by prioritizing the child's emotional needs over others.  

                                                                                                                                                                                                                                                        



                                             Finally, Joy contends that the trial court did not "meaningfully consider[]  

                                                                                                                                                                                                                                                                   



the emotional impact [that] a move would have on a child required to move thousands  

                                                                                                                                                                                                      



of miles from the only home he has known to live with a parent who has been absent  

                                                                                                                                                                                                                                                                               



from his life for three years."  But again, the court did seriously consider this aspect of  

                                                                                                                                                                                                                                                                                              



the situation, recognizing that the child "has lived in the marital home throughout his  

                                                                                                                                                                                                                                                                                          



life." The court concluded, however, that maintaining continuity was less important than  

                                                                                                                                                                                                                                                                                       



meeting the child's emotional and mental needs, which could best be accomplished by  

                                                                                                                                                                                                                                                                                            



                       30                    See Michele M. v. Richard R.                                                                         , 177 P.3d 830, 834 (Alaska 2008) (finding                                                                             



no   abuse   of   discretion   in   superior   court's   "emphasis   on   [the   child's]   education,  

identifying it as one of [the child's] greatest needs under AS 25.24.150(c)(1)").                                                                                                                              



                                                                                                                                            -18-                                                                                                                                    7417
  


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

                                                                                                                                   

a change in custody.  We see no clear error in the court's findings related to this issue or  



                                                                                   

any abuse of discretion in its weighing of the child's needs.  



                                                                                                                                       

          C.	        The Court Did Not Abuse Its Discretion By Placing Conditions On  

                               

                    Joy's Visitation.  



                                                                                                                                    

                     Finally, Joy contends that the superior court abused its discretion when it  



                                                                                                                               

accepted  the  custody  investigator's  recommendation  that  a  change  of  custody  was  



                                      

necessary until Joy was  



                                                                                                              

                     able to obtain services to cope with her own issues[,] . . . to  

                                                                                                        

                     gain a better understanding of her own behaviors and faulty  

                                                                                                       

                    thinking, to take responsibility for her own vindictive actions  

                                                                                                     

                    that have negatively impacted the child, to learn newmethods  

                                                                                            

                     of     resolving          her      emotions,          to     learn       appropriate  

                                                                                                             

                     communication  that  disengages  from  conflict,  and  to  be  

                                                                                                         

                    willing to encourage the child's relationship [with] his father  

                                                                                                             

                     and  not  engage  the  child  in  disparaging  comments  or  

                                     

                     conduct.  



                                                                                                                              

The court was much more specific about the contemplated services in a summary order  



                                                                                                                                

on child custody, in which it ordered, as a condition of unsupervised visitation, that Joy  



                                                                                                                      

enroll "in individual cognitive behavioral therapy (CBT) . . . to process issues including,  



                                                                                                                                 

but not limited to, the loss of the parties' [other] child . . . ; to find ways to cope with the  



                                                                                                                                 

loss   of   the   marriage   and   the   issues   involved   in   the   marriage;   the   use   of  



                                                                                                                     

manipulation/coercion/threats/controlinrelationships/divorce/parenting,and appropriate  



                                                                                                                        

communication with the child about [Everett]."  The court continued:  "The therapist  



                                                                                                                    

should  be  well  versed  in  CBT  and  have  an  in-depth  understanding  of  personality  



                                                                        

disorders, high conflict divorce, and coercive control battering within intimate partner  



                        

relationships."  



                                                                                                                                 

                     Joy argues that the sole source of this detailed order was the report of the  



                                                                                                                              

custody  investigator,  whose  only  expertise  was  in  custody  investigations  and  who  



                                                                                                                                 

admitted that she was unqualified to make a psychological diagnosis. She argues that the  



                                                               -19-	                                                         7417
  


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

court therefore erred when it relied on the investigator's analysis of Joy's "mental                                                                                                     



condition" and adopted the investigator's specific recommendations for treatment.                                                                                                                   



                                The trial court has broad discretion when formulating conditions on a                                                                                                    

                                                                       31     We have affirmed a trial court's decision to condition  

parent's exercise of visitation.                                                                                                                                                      



unsupervised visitation on completion of a psychological evaluation when based on a  

                                                                                                                                                                                                         



finding that the father was otherwise "likely to surround his son with 'an atmosphere of  

                                                                                                                                                                                                       

conflict, paranoia, upset, anger[,] and stress.' "32   Here, the custody investigator testified  

                                                                                                                                                                                         



that she was not making any psychological diagnosis but rather was drawing on her  

                                                                                                                                                                                                    



experience to make a recommendation she thought might be of benefit to the family.  

                                                                                                                                                                                                              



Joy's argument that the investigator was unqualified to recommend a specific type of  

                                                                                                                                                                                                       



therapy is conclusory and does not persuade us that the trial court abused its broad  

                                                                                                                                                                                              



                                                                                                                                                                       33  

discretion by incorporating the recommendation into its custody order.                                                                                                      

                                                                                                                                                         



V.              CONCLUSION  



                               We AFFIRM the trial court's decision on custody.  

                                                                                                                                   



                31             Pasley v. Pasley                         , 442 P.3d 738, 754 n.81 (Alaska 2019);                                                              Yelena R. v.  



George R.                , 326 P.3d 989, 1002 n.36 (Alaska 2014) ("[W]here a trial court makes the                                                                                                  

required findings, whether those findings support a particular restriction on visitation is                                                                                                             

left to the trial court's discretion.").             



                32             Sagers v. Sackinger, 318 P.3d 860, 866-67 (Alaska 2014) (affirming trial  

                                                                                                                                                                                                  

court's  requirement  that  father  undergo  psychological  evaluation  before  having  

                                                                                                                                                                                          

unsupervised visitation).  

                                                            



                33             Joy also argues that the trial court's condition restricting her to supervised  

                                                                                                                                                                                   

visitation was unsupported by the evidence.  But because she first raises the argument  

                                                                                                                                                                                      

in her reply brief, we deem it waived.  See Barnett v. Barnett, 238 P.3d 594, 603 (Alaska  

                                                                                                                                                                                          

2010). We do note that the trial court clearly laid out a plan by which Joy could achieve  

                                                                                                                                                                                          

unsupervised visitation:   the "substantial completion" of its recommendations for a  

                                                                                                                                                                                                         

psychological evaluation and individual cognitive behavioral therapy.  See Georgette  

                                                                                                                                                                                    

S.B. v. Scott B., 433 P.3d 1165, 1172 (Alaska 2018).  

                                                                                                                               



                                                                                                 -20-                                                                                           7417
  

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