88 P.3d 1078 (Alaska 2004), S-10554, Evans v. McTaggart

• Citation: 88 P.3d 1078
• Opinion Judge: MATTHEWS, Justice.
• Party Name: Lisa Marie EVANS, Appellant, v. Nathan McTAGGART, Appellee, Arthur and Rebecca McTaggart, Intervenors/Appellees.
• Attorney: Craig B. Partyka, Cook Schuhmann & Groseclose, Inc., Fairbanks, for Appellant. Marlin D. Smith, Law Office of Marlin D. Smith, Fairbanks, for Intervenors/Appellees Arthur and Rebecca McTaggart.
• Judge Panel: Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices. FABE, Chief Justice, with whom CARPENETI, Justice, joins, dissenting. FABE, Chief Justice, with whom CARPENETI, Justice, joins, dissenting.
• Case Date: April 09, 2004
• Court: Alaska Supreme Court

Page 1078

88 P.3d 1078 (Alaska 2004)

Lisa Marie EVANS, Appellant,

v.

Nathan McTAGGART, Appellee,

Arthur and Rebecca McTaggart, Intervenors/Appellees.

No. S-10554.

Supreme Court of Alaska

April 9, 2004.

Page 1079

Craig B. Partyka, Cook Schuhmann & Groseclose, Inc., Fairbanks, for Appellant.

Marlin D. Smith, Law Office of Marlin D. Smith, Fairbanks, for Intervenors/Appellees Arthur and Rebecca McTaggart.

Before : FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.

OPINION

MATTHEWS, Justice.

I. INTRODUCTION

The main questions presented relate to parental rights in cases where third parties make child custody and visitation claims. As to custody what must be proved is clear--parental unfitness or that the welfare of the child requires third-party custody--but is the preponderance of the evidence standard or a higher standard required? As to visitation, a statute requires proof that the best interests of the child will be served, but is this an unconstitutional interference with parental prerogatives? We answer that the clear and convincing evidence standard of proof is required as to dispositive findings in both instances. This elevated standard is needed, and is adequate, to protect parental rights.

II. FACTS AND PROCEEDINGS

Lisa Evans is the mother of Shawn Evans and Cameron McTaggart. Shawn was born in 1992. Shawn's father, Eric Evans, was married to Lisa until they divorced in 1994. Cameron was born in November 1993. Cameron's father, Nathan McTaggart was never married to Lisa, though they lived together periodically until November 1996. Arthur and Rebecca McTaggart ("the McTaggarts") are the parents of Nathan McTaggart.

This action was initiated in 1997 by Nathan, who filed a complaint against Lisa seeking custody of Cameron and child support from Lisa. Nathan accompanied the complaint with a motion seeking interim and permanent custody of Cameron. Lisa answered, opposed Nathan's motion, and sought an order recognizing her custody. In November 1997 the superior court entered a temporary order that provided that Nathan and Lisa would share legal and physical custody of Cameron. Both parties were required to cooperate with the court-appointed child custody investigator.

The McTaggarts moved to intervene in June 1998. They claimed that they had close contact with Cameron and that "[t]hey believe that such contact is in Cameron's best interest." The final two paragraphs of Rebecca McTaggart's affidavit stated:

My husband and I are now of the opinion that we cannot insure continued contact with Cameron without an order from the Court. We are equally concerned about Shawn, but understand that there may be legal impediments to the Court ordering visitation with Shawn.

Arthur and I reluctantly but respectfully request that you permit us to intervene in this case so we can participate at trial and look out for the best interests of our grandchildren.

The court granted the McTaggarts' motion to intervene. Just prior to the scheduled trial the parties agreed to settle the case. They entered into a child custody and support

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agreement that was approved by the court. Under the agreement the parties would have equal shared physical custody on a one-week-on-one-week-off basis. Nathan has a bi-polar disorder and Lisa suffers from hypoglycemia. Recognizing these conditions, the agreement provided that Nathan should remain on medication recommended by his physician and that Lisa "should consistently seek medical treatment for herself ... and follow the treatment recommended by her physician." Lisa was required to "take her medication consistently and follow her prescribed diet." The agreement gave Rebecca McTaggart and Lisa's mother a supervising role over Nathan and Lisa, stating: "Cameron's maternal grandmother, Phyllis Dickman, and his paternal grandmother, Rebecca McTaggart, shall monitor mother and father respectively, during the custody periods to make sure the parents are taking their medication and following their physician's recommendations concerning therapy and diet." Child support was to be calculated pursuant to the shared custody schedule of Civil Rule 90.3(b). The parties were to exchange child support guidelines affidavits and specified income information.

Some two and a half years later, in February 2001, Lisa filed a motion to modify the custody and support agreement. She sought primary custody of Cameron, claiming that changed circumstances justified the modification. Nathan opposed the motion. The McTaggarts again moved to intervene. Their unopposed motion was granted. The superior court ordered a custody investigator to submit recommendations to the court. The custody investigator filed a report in September 2001 that included a recommendation that Rebecca McTaggart be granted custody of Cameron and suggested that Shawn spend time with the McTaggarts. Soon thereafter, the McTaggarts filed a motion for custody of Cameron and for rights of visitation with Shawn. Lisa and Nathan separately opposed this motion.

Following a four-day trial, the superior court in March 2002 entered findings of fact, conclusions of law, and an order that granted legal and physical custody of Cameron to the McTaggarts subject to visitation rights in Lisa. The order required both Lisa and Nathan to pay the McTaggarts $50 per month for child support of Cameron. The order also granted visitation to the McTaggarts with Shawn for one weekend each month during the school year and three weekends each month during summer school vacation. The specified weekends are weekends that Cameron will also be with the McTaggarts.

The court's findings supporting the order begin by detailing the terms of the child custody and support agreement of August 1998. They note that the 1998 agreement was based in part on the court child custody investigator's report which stated:

Neither parent appears capable of meeting Cameron's needs without the assistance of extended family.... Cameron should not be used as a rope in a tug-of-war between the parties or families. All involved need to work together cooperatively to see that his needs are met and that he does not lose the important relationships in his life.

Referring to the statement that "Cameron should not be used as a rope in a tug-of-war between the parents and families," the court found that "that's exactly what has happened." The court also found that Cameron was at high risk:

He is an emotionally disturbed child with special needs and these are a result of his environment over the past eight years and the emotional way that his parents have cared for him and not cared for him. At the present time and in the past Cameron has always had a need for, but it has not been provided for him, stability, consistency and nurturing.

The court found that Nathan was incapable of meeting these needs for stability, consistency and nurturing. The findings continue:

There are two things Cameron needs. He needs the physical and emotional stability of one home; and he needs the battle to stop. I see absolutely no likelihood the battle will stop.... Lisa doesn't want it to happen. Nathan doesn't really want it to happen.

Concerning Lisa, the court found that she "is not presently capable of meeting Cameron's needs" and that she "continues to use Cameron and Shawn Evans as a weapon of her

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anger and spite toward Nathan." The court found that Lisa had limited cognitive ability, that she was uninvolved in Cameron's school, unaware of his homework assignments, and that she had neglected to seek needed dental care for him.

The written findings were prepared by counsel for the McTaggarts, and mostly adhere to the oral findings made by the trial court at the close of the evidence. One finding prepared by counsel reads as follows: "I find specifically when I look at the parents, Nathan and Lisa, that it would be clearly detrimental for Cameron to be placed in their home." The court crossed out "clearly" and initialed the cross-out.

The court made the following findings concerning the McTaggarts: "I find that Arthur and Rebecca McTaggart have come forward in this custody case reluctantly. They have done what most grandparents do which is hope that the kids would come through. They have waited and been safety nets for Cameron and at this stage Cameron's condition has changed sufficiently that it requires a change in custody." The court found that Cameron's need for stability "can only be met in Arthur and Rebecca McTaggart's home." Summing up, the findings state:

Cameron has higher need for consistency. He doesn't take change well and, in fact, he shouldn't have a lot of change. This is a little boy that for many years now has needed and now needs dinner at the same time, bedtime at the same time, rules that are enforced the same everywhere and he is only going to progress if he has those things and if he doesn't it is very clear from the testimony he's going to get sicker mentally and accelerate his worsening behavior.... Therefore, this court finds, based upon a preponderance of evidence, that it would be detrimental for Cameron McTaggart to be placed with Nathan or Lisa, and legal and physical custody is granted to Becky and Art McTaggart.

Concerning Shawn, the court found that Arthur and Rebecca McTaggart have been psychological grandparents to Shawn and that "it is in Shawn's best interests that he have as much time with Cameron McTaggart, his half-brother, as possible and that he be allowed to resume his relationship with Arthur and Rebecca McTaggart with some limited visitation." The court also found that the McTaggarts had a "very caring and nurturing relationship with [Shawn] as a small child, and it was and continues to be a loving relationship." The court found that the McTaggarts were not trying to take Shawn "away from Lisa in any way," but that they were trying to ...