DocketNumber: Supreme Court No. S-17012
Citation Numbers: 436 P.3d 1009
Judges: Bolger, Carney, Maassen, Stowers, Winfree
Filed Date: 2/22/2019
Status: Precedential
Modified Date: 7/19/2022
I. INTRODUCTION
A mother wishes to relocate with her daughter to New York. She sought primary custody, alleging that the father's drinking and busy schedule made him an improper guardian for their two-year-old. The superior court concluded that it was in the child's best interests to remain in Alaska, in her father's custody. The mother appeals, arguing that the superior court erred in its analysis.
Because the superior court did not properly consider the effect of separating the child from her mother, we vacate its custody order and remand for further analysis. However we affirm the court's decision not to order protective measures to ensure the father's sobriety while caring for the child.
II. FACTS AND PROCEEDINGS
A. Facts
Daisy Saffir and Michael Wheeler had a daughter in June 2015. They never married, but began living together during Saffir's pregnancy. Their relationship grew strained over the next two years, largely because of tensions caused by Wheeler's drinking, and they broke up in the summer of 2017. They continued living together with their daughter throughout the proceedings in this case.
Saffir's family lives in New York, and the couple discussed the possibility of moving there with their daughter before they broke up. But these discussions fell apart by the time they separated or shortly thereafter.
B. Proceedings
In October 2017 Saffir filed a complaint seeking primary custody of her daughter.
*1011She also filed a motion for interim custody requesting permission to move to New York with the child immediately.
The superior court held a hearing on the motion for interim custody on December 20. Saffir testified that she maintained the child's routine and was her primary caretaker, and that Wheeler's drinking habits and work schedule interfered with his ability to parent. Saffir introduced a journal she had made to document Wheeler's drinking, with entries running from September 2016 to December 2017. She also introduced Wheeler's records from Providence Breakthrough Addiction and Behavioral Health Services-a treatment center where Wheeler had been provisionally diagnosed with mild "alcohol use disorder"-and testified that he resumed drinking after completing outpatient treatment there in June 2016. In response Wheeler testified that he participated in the child's day-to-day care, but that Saffir "micromanaged" him and made it difficult for him to do things like put their daughter to bed. He said the drinking Saffir reported was the result of the tensions in their relationship and disputed the conclusions reached by Providence Breakthrough.
The superior court denied Saffir's motion for interim custody, making oral findings that it had not "heard ... anything that says any of [Wheeler's] conduct is detrimental to the child." But the court did "order that ... Wheeler not have any alcohol around the child." It also found that "Saffir has been the primary custodian."
The superior court held final custody hearings one month later, on January 29 and 31, 2018. It had previously clarified that it would also consider the evidence presented at the interim custody hearing when making its final custody decision. The issue of Wheeler's drinking dominated the proceedings. Saffir's stepfather and sister both testified that they had seen Wheeler drink excessively when he visited them in New York. They further testified that Saffir actively tried to involve Wheeler in the child's life. Saffir also offered the testimony of a counselor who assessed Wheeler for Providence Breakthrough and expert testimony from Vivian Patton, a counselor who treats "mental health and substance use issues," but who did not interview Wheeler and based her opinion solely on his medical records and the litigation materials. Both said that Wheeler met the criteria for alcohol use disorder. Finally Saffir herself testified at length about Wheeler's schedule and drinking, and said that she had found him intoxicated while caring for their daughter on three separate occasions. She also explained how she facilitated Wheeler's involvement with their daughter.
For his part Wheeler testified that his work schedule was flexible enough to allow him to care for the child and that he had been an active part of her life since birth. He disputed Saffir's testimony about his alcohol use and claimed that he had been sober for "three or four" months prior to the trial. He introduced data from Soberlink-a service that uses a portable breathalyzer to monitor alcohol use at scheduled times-to demonstrate his sobriety. Finally he sought to discredit Saffir's journal with the testimony of three friends.
At the end of the hearing, the superior court made several oral findings. It concluded that "Saffir has been controlling" and that this is "interfering with ... Wheeler's ability to parent." It also found that the testimony of Saffir's relatives about Wheeler's alcohol use was credible, but found Wheeler's testimony credible as well. In contrast the court did not "find [Saffir's journal] very reliable," and expressed a skepticism that it was created for litigation purposes. Finally the court stated that "the drinking has been mitigated to an extent by the steps that ... Wheeler has taken," including using Soberlink and enrolling in Providence Breakthrough.
The superior court issued its final custody order in February 2018. It concluded that "it is in the child's best interest to remain in Alaska until kindergarten," but that "[w]hen [she] reaches kindergarten age the court will consider this a substantial change of circumstance and the parties can readdress custody again." In reaching this decision, the court first addressed Saffir's relocation to New York and the impact such a move would have on the child. It found that Saffir had a legitimate reason to move to New York, but that "[c]onsistent contact with [Wheeler] will be disrupted if [the child] is allowed to relocate."
*1012While the court recognized that the child would benefit from the extended family she has in New York, it reasoned that Saffir's actions while in Alaska "indicate[ ] that she is overly protective of [the child] to such an extent it interferes with [Wheeler's] ability to parent" and that "[t]his control will be exacerbated in New York." The superior court found that Saffir had been the child's "primary day to day caregiver," but that this was at least in part because she had prevented Wheeler from "handl[ing] day to day issues."
The court then proceeded to consider the child's best interests, discussing each of the factors listed in AS 25.24.150(c).
Based on these findings, the superior court awarded primary physical custody to Wheeler if Saffir moves to New York. In that scenario Saffir was awarded custody of the child for one week each month, with the location of her custody alternating between New York and Alaska. In the event that Saffir stays in Alaska, the court ordered a 2-2-3 custody schedule. The court did not impose any conditions requiring Wheeler to be sober or demonstrate sobriety while caring for the child. Saffir appeals.
III. DISCUSSION
Saffir appeals all but two of the superior court's best-interests determinations, as well as the weight given to them. Saffir also argues that the superior court abused its discretion by not ordering protective measures to ensure Wheeler's sobriety while with the child. Because we agree that the court's analysis of the fifth best-interests factor
*1013A. The Failure To Engage In Proper Symmetrical Analysis Was Legal Error.
1. The Moeller-Prokosch framework
Where, as here, a custody dispute involves one parent's plan to leave the state, superior courts must use a two-step process to determine the best interests of the affected child.
2. The court's analysis of best-interests factor five
The superior court found that Saffir's move to New York was legitimate, and neither party disputes this finding.
The superior court found that factor five favored Wheeler. It explained that the child had "lived in her [f]ather's home since birth" and that "[m]aintaining stability and continuity is important for toddlers." The court noted that Saffir had created a strict routine for the child that "has sometimes hindered [Wheeler's] ability to parent," and expressed concern that this dynamic would only worsen if the child moved across the country with Saffir. But the superior court did not discuss the impact that being separated from Saffir would have on the child, even though it had found that Saffir was her "primary day to day caregiver."
We recently vacated a similar custody order in Mengisteab v. Oates .
The superior court's analysis here suffers from the same imbalance. The court placed great weight on its finding that Saffir would interfere with Wheeler's ability to parent. But it did not address the impact of removing the child from her established routine or from Saffir, the parent who established it. Our precedent regarding symmetric analysis of the fifth best-interests factor required the superior court to do so,
B. The Superior Court Did Not Abuse Its Discretion By Not Ordering Protective Measures When The Child Is In Wheeler's Care.
Having concluded that the superior court's legal error with respect to its analysis of the fifth best-interests factor is grounds for remand,
Saffir asked the superior court to require Wheeler to be sober while with their daughter and to order affirmative measures to ensure his sobriety. The court's final order granted primary physical custody to Wheeler, but did not explicitly require his sobriety or otherwise include the measures Saffir requested.
While it did not explain the reason for these omissions, the superior court discussed Wheeler's drinking at length and ultimately found that it did not "affect the well[-]being of the child." This finding is supported by the record. The superior court explained that while Wheeler "did have issues with alcohol[,] [h]e has taken steps to address this issue." Wheeler testified that he had sought proper medical care for chronic pain caused by a spinal injury and was no longer self-medicating with alcohol. He said that he had not had a drink for three or four months at the final custody hearing and introduced Soberlink data to show that he had been sober during the month since the interim custody hearing. Wheeler also testified that he does not drink before or while caring for the child and indicated that he thought it would be irresponsible to do so.
Saffir offered conflicting evidence to prove that Wheeler continued to drink through the period during which he claimed sobriety and that this drinking endangered their child. But "[w]hen the superior court is faced with conflicting evidence, we do not re-weigh it. 'It is the job of the trial court, not the appellate court, to judge the credibility of the witnesses and to weigh conflicting evidence.' "
IV. CONCLUSION
We VACATE the superior court's February 15, 2018 custody order and REMAND for further analysis consistent with this opinion.
This section provides that:
The court shall determine custody in accordance with the best interests of the child under AS 25.20.060 -25.20.130. In determining the best interests of the child the court shall consider
(1) the physical, emotional, mental, religious, and social needs of the child;
(2) the capability and desire of each parent to meet these needs;
(3) the child's preference if the child is of sufficient age and capacity to form a preference;
(4) the love and affection existing between the child and each parent;
(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
(9) other factors that the court considers pertinent.
"[T]he length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity." AS 25.24.150(c)(5).
Moeller-Prokosch v. Prokosch ,
Mengisteab v. Oates ,
Veselsky v. Veselsky ,
Moeller-Prokosch v. Prokosch ,
Pingree v. Cossette ,
See Mengisteab ,
Saffir does argue, however, that the superior court failed to assume that her move would occur by ordering two alternative custody schedules: one for if she stays in Alaska and one for if she moves to New York. We disagree. We rejected this argument in Rego v. Rego , where we held that "the superior court is authorized to order 'alternative custody arrangements dependent on whether the move occur[s].' "
AS 25.24.150(c)(5).
Chesser-Witmer v. Chesser ,
Veselsky v. Veselsky ,
See
Mengisteab v. Oates ,
Id . at 92.
See Moeller-Prokosch III ,
See Veselsky v. Veselsky ,
We have also considered Saffir's arguments regarding factors one, two, six, seven, eight, and nine and conclude that the superior court's findings had support in the record and were not clearly erroneous. That said, the superior court may need to reweigh the best-interests factors after it reconsiders factor five.
Houston v. Wolpert ,
Silvan v. Alcina ,