Adrianne C. v. Christopher D., 011321 AKSC, S-17730

Docket NºS-17730
Party NameADRIANNE C., Appellant, v. CHRISTOPHER D., Appellee.
AttorneyD. Scott Dattan, Law Office of Dattan Scott Dattan, Anchorage, for Appellant. Molly R. Gallagher and Jacob A. Sonneborn, Law Office of Jacob Sonneborn, Anchorage, for Appellee.
Judge PanelBefore: Bolger, Chief Justice, Winfree, Maassen, Carney, and Borghesan, Justices.
Case DateJanuary 13, 2021
CourtSupreme Court of Alaska

ADRIANNE C., Appellant,

v.

CHRISTOPHER D., Appellee.

No. S-17730

Supreme Court of Alaska

January 13, 2021

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court of the State of Alaska No. 3 AN-15-10768 CI, Third Judicial District, Anchorage, Josie Garton, Judge.

D. Scott Dattan, Law Office of Dattan Scott Dattan, Anchorage, for Appellant.

Molly R. Gallagher and Jacob A. Sonneborn, Law Office of Jacob Sonneborn, Anchorage, for Appellee.

Before: Bolger, Chief Justice, Winfree, Maassen, Carney, and Borghesan, Justices.

MEMORANDUM OPINION AND JUDGMENT [*]

I. INTRODUCTION

A mother and father separated before their son's birth. They later agreed in writing to share physical custody by alternating weeks. The father moved to modify custody, arguing that a substantial change of circumstances had occurred due to domestic violence between the mother and her boyfriend and that the mother violated the custody agreement by leaving the son in the boyfriend's care without supervision, despite his past conviction for a violent crime. The superior court modified custody by granting primary physical custody to the father. We affirm.

II. FACTS AND PROCEDURAL HISTORY

Adrianne C. and Christopher D. contest the custody of their son, Alex, born in 2015.1 Adrianne also has an older son, Adam, who is Alex's half-brother. Christopher and Adrianne separated before Alex was born. In 2017 they agreed in writing to share custody of Alex by alternating weeks during the school year and alternating two-week periods in the summer. The custody agreement also contained a specific provision that he would not be left unsupervised in the presence of anyone with a criminal record for child abuse or violence. The superior court issued a decree of custody in which it incorporated the custody agreement as an order of the court.

In April 2019 Adrianne petitioned for and obtained a domestic violence protection order against her ex-boyfriend Robert M. Robert had previously been convicted of at least one violent crime. In May 2019 Christopher filed a motion to modify custody. The motion centered around Adrianne's relationship with Robert.

Specifically, Christopher alleged that, despite Robert's record of violent crime, Adrianne on multiple occasions left Alex in Robert's sole care and that at least once Robert neglected Alex by letting him run loose in a mall and a department store. Christopher stated that Adrianne's petition for a restraining order, which does not appear in the record, asserted that Robert lived in Adrianne's home, "threatened her, punched holes in her walls, and was stalking her." Christopher concluded by stating that this domestic violence in Adrianne's home, as well as her decision to allow Robert to care for Alex without supervision, constituted a substantial change in circumstances, and he requested a hearing for primary physical and sole legal custody.

The superior court held a hearing spanning two days in November and December of 2019. At the hearing, witnesses discussed an incident when Adrianne had left her children with a babysitter; upon her return, Adam was upset. The superior court noted that whatever actually occurred to upset Adam was not significant but that Adrianne's passive response to the incident, both at the time and at the hearing, was not particularly protective.

In another incident, Adrianne called the police after Adam told her he was with his father's girlfriend. In oral findings, the superior court found that Adrianne's communication with Adam surrounding this incident was parent-centered, not child-centered, and although Alex was not involved in this incident, it again cast doubt on her ability to meet Alex's emotional needs.

Adrianne testified that, a few months before the end of her relationship with Robert, he threatened to hit her and that while she was not at home he punched holes in her wall. Adrianne testified that after she found out about Robert's prior conviction for a violent crime, he explained it was not his fault, and she felt that explanation was adequate. When asked why she let Robert keep a gun in her house given this behavior, she did not answer. She confirmed she did sometimes leave Alex in Robert's care.

Adrianne affirmed that she broke up with Robert and that he was then out of her life. But she testified that in the six weeks prior to her pursuing the protective order, Robert would show up at her house late at night, banging on her door and screaming at her; this occurred three to four times when Alex was present, scaring him.

The superior court found that Alex had been "exposed to at least one act of domestic violence" between Adrianne and Robert. In its oral findings, the superior court elaborated that its finding of a "substantial change in circumstances" was based on Alex being left unsupervised with a person convicted of a violent crime, as well as the domestic violence that occurred in Adrianne's household.

The superior court concluded that Alex was unsafe in Robert's care, based on witness testimony that Robert left three-year-old Alex and seven-year-old Adam unattended at a mall and department store. The court further noted that, although Adrianne was "fuzzy" in testifying about when she knew of Robert's history of violence, it was clear that she left Alex in his care after she knew about his history and after he had committed violence in her home. The superior court acknowledged that obtaining the restraining order was "protective" and that Robert no longer posed a threat. But the court also concluded that Adrianne's testimony suggested the quality of her decision-making had not changed from when Robert was still in the home.

The superior court noted in its order that it considered the statutory best-interests factors and specifically stated that the factor concerning the capability and desire of each parent to meet the child's needs weighed in Christopher's favor because he provided "a more stable, routine, and safe experience" for Alex. The court pointed out that Christopher primarily took Alex to his medical appointments and noted that Christopher wanted to encourage a relationship between Alex and Adam. In contrast, the court found that Adrianne's capacity and desire to provide for Alex's needs, particularly his safety, was "questionable" due to her decisions such as leaving Alex in Robert's care despite knowing he "was not an appropriate caregiver."

The court noted that the stability factor weighed in Christopher's favor, despite the fact that modifying custody would be disruptive to Alex, because Adrianne had not consistently provided Alex stability. The court noted that neither parent demonstrated a willingness or ability to facilitate a relationship with the other parent due to their acrimonious relationship. Finally, the court observed that Christopher's home had been free of domestic violence while Adrianne's had not, which weighed in Christopher's favor.

The court granted Christopher primary physical custody of Alex but granted Adrianne significant parenting time, including two out of every three weekends and one evening a week during the school year, and every other week during the summer. Adrianne filed a motion for reconsideration, arguing in large part that the court's safety concerns were merely "speculative." Her motion was denied, and Adrianne appealed.

III. DISCUSSION

Alaska Statute 25.20.110(a) permits a superior court to modify a custody arrangement "if the court determines that a change in circumstances requires the modification . . . and the modification is in the best interest of the child." The parent seeking modification must first make a prima facie showing of a substantial change in circumstances.2 Once such a showing has been made, the superior court must schedule an evidentiary hearing "to consider whether, in light of such changed circumstances, it is in the child's best interest to alter the existing custodial arrangement."3 At this hearing, the parent seeking modification bears the burden of proving both that circumstances have changed and "that the changed circumstances, considered in conjunction with other relevant facts bearing upon the child's best interests, warrant modification of the existing custody decree."4

We recognize the superior court has "broad discretion in determining whether a proposed child-custody modification is in the child's best interests."[5] This discretion extends to the superior court's determination, following an evidentiary hearing, that "a substantial change in circumstances" exists.6 We reverse these determinations by a superior court only if it "abused its discretion or if the fact findings on which the determination is based are clearly erroneous."7 "Abuse of discretion is established if the [superior] court considered improper factors in making its custody determination, failed to consider statutorily mandated...

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