Carter v. Brodrick, 5511

• Decision Date: 14 May 1982
• Docket Number: No. 5511,5511
• Citation: 644 P.2d 850
• Parties: Larry James CARTER, Appellant, v. Christine Karen BRODRICK, Appellee.
• Court: Alaska Supreme Court

Page 850

644 P.2d 850

Larry James CARTER, Appellant, v. Christine Karen BRODRICK, Appellee.

No. 5511.

Supreme Court of Alaska.

May 14, 1982.

William T. Ford, Anchorage, for appellant.

Robert A. Rehbock, Rehbock & Rehbock, Anchorage, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.

OPINION

CONNOR, Justice.

This is an appeal from an order refusing, as a matter of law, to grant visitation rights to an ex-stepfather. At issue is the construction of AS 09.55.205, the jurisdictional predicate for custody and visitation orders.

A. Facts

Christine Brodrick and Larry Carter were married on August 5, 1976. At that time Christine's son by a prior marriage, David W. Brodrick, was nearly four years old. Larry and Christine subsequently had a child of their own, Carrie L. Carter, who was born March 21, 1977. On June 18, 1979, Christine filed for divorce. The divorce decree, rendered March 17, 1980, incorporated the terms of a "parental agreement" negotiated by the parties prior to the decree. This parental agreement provided for custody and visitation as follows:

"WHEREAS The Mother has a child from a former marriage, David Brodrick ... hereinafter referred to as 'Son', and the parties have a child born of this marriage, Carrie Carter ... hereinafter referred to as 'Daughter'; and

WHEREAS the Son has not been adopted by Father, and Father and Mother do not presently contemplate such adoption and are not in agreement thereto; but the parties agree that it is in the best interest of both children that they be treated as a family; and

WHEREAS Father has in fact been the only psychological father Son has known and has been treated as such; and

WHEREAS Mother and Father agree that Son and Daughter should be given free and open access to both parents;

NOW THEREFORE, in consideration of the mutual promises between the parties contained herein, it is hereby agreed as follows:

1) Mother and Father shall share equally parental responsibility for the care and upbringing of Son and Daughter.

2) The parties shall consult each other concerning all major decisions affecting Son and Daughter, including, but not limited to substantial decisions involving education, health and discipline matters. Father shall have access to all legal and other records pertaining to Son and Daughter including but not limited to, school, medical, and religious records.

3) The parties will maintain and encourage open lines of communication between each other and the children and in furtherance thereof shall not at any time disparage the other parent in the presence of the children and shall actively encourage strong parent-child relationships.

7) Mother and Father's parents will be encouraged to visit with the children and both parties agree to accommodate these visits during the periods the children are residing with them, provided, they are given ample notice and the visit (sic) are reasonable in duration.

9) Both parties shall have reasonable telephone access with the children. Each parent, when the children are in his or her care, shall encourage such contact.

10) In the event either party shall be away from the Anchorage area on business or recreation, without the children, he or she will place the children with the other party during this period unless the other party is unable to assume responsibility."

The agreement additionally provided that both children would reside with Christine during the school year but with Larry during the summer, each parent to have two days custody every two weeks during the other's period of custody.

After their divorce the parties' relations worsened, and Larry was able to exercise visitation with David, his ex-stepson, only a few times. In June of 1980, Christine sent David to her parents' home in Minnesota for the summer, rather than to Larry as the agreement provided.

After an effort to resolve their disagreements failed, Larry filed a motion in the superior court to compel compliance with the terms of the parental agreement. At the end of a hearing on the motion, the trial court struck David's name from the visitation agreement, thus rescinding Larry's visitation with his ex-stepson, stating:

"I think that you're using the children to get at one another.

I believe that I may have made a mistake by encouraging or permitting David's name to be included in the parental agreement because that was bound to create problems with people like you. You're just plainly not mature enough to understand the needs of children and to provide a nurturing environment for children. Nevertheless, you're both fit parents and should be allowed to parent your natural youngsters.

So the order is that the child, David, is stricken from the parental agreement. Mr. Carter never adopted David and even though he did a lot of parenting for David while the parties were married and after they ceased living together, he has no legal claim to David. And that's the law." (emphasis added).

The trial court subsequently stayed its order and provided that visitation was to occur with both children. Faced with Christine's continuing refusal to obey, however, and the prospect of issuing a contempt order, the court subsequently rescinded the stay order.

According to counsel, Larry has not had any contact with David since April, 1980; summer visitation was with Carrie alone, and Larry continues to exercise visitation with her, his natural daughter, under the terms of the original parental agreement.

B. Stepparent Visitation

Stepparent visitation is an issue of first impression in Alaska. The statute in issue reads:

"In an action for divorce or for legal separation the court may, ... during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any child of the marriage, make an order for the custody of or visitation with the minor child which may seem necessary or proper and may at any time modify or vacate the order." (emphasis added).

AS 09.55.205. At issue is whether this statute establishes or precludes superior court jurisdiction over stepchildren, i.e., is a stepchild a "child of the marriage?" If so, the superior court erred in denying Larry visitation merely because of the lack of a blood or adoptive relationship between them.

Larry urges this court to recognize the common law doctrine of in loco parentis. ¹ Larry argues that if a stepparent has assumed the status and obligations of a parent to a child, then that child is "of the marriage" within the meaning of AS 09.55.205 and, therefore, the superior court has jurisdiction to grant stepparent visitation. Assuming jurisdiction exists, Larry then argues that as one standing in loco parentis, he has "exactly the same right to custody and visitation as a natural or adopted parent." Emphasizing his close relationship with David, the need to determine visitation in light of the child's best interests, and the undesirability of differential treatment regarding visitation of Carrie and David, Larry argues that the superior court abused its discretion in denying him visitation.

Christine, on the other hand, argues that the language "child of the marriage" in AS 09.55.205 encompasses only natural or adopted children. She argues that stepparent visitation in a society of transitory relationships would result in confusion for children and generally would not be in their best interests. Additionally, she argues that adopting the common law concept of in loco parentis conflicts with AS 09.55.205. Finally, she argues that even if Larry has a visitation interest, the trial court did not abuse its discretion in denying him visitation with David.

Of the six jurisdictions that have ruled on stepparent visitation, five have recognized it notwithstanding the absence of clear statutory authorization. See Collins v. Gilbreath, 403 N.E.2d 921, 922-24 (Ind.App.1980); Simpson v. Simpson, 586 S.W.2d 33, 35-36 (Ky.1979); Looper v. McManus, 581 P.2d 487, 488-89 (Okl.App.1978); Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879, 881-83 (1977); Gribble v. Gribble, 583 P.2d 64, 66-67 (Utah 1978). These courts authorizing stepparent visitation have done so on the premise that the stepparent has become a surrogate parent. This concept, expressed in the journals as that of "psychological parentage," ² finds its legal basis either explicitly or implicitly in the common law doctrine of in loco parentis.

"The term 'in loco parentis' means in the place of a parent, and a 'person in loco parentis' is one who has assumed the status and obligations of a parent without formal adoption. Whether or not one assumes this status depends on whether that person intends to assume that obligation.

'Where one stands in loco parentis to another, the rights and liabilities arising out of that relation are, as the words imply, exactly the same as between parent and child.' " (footnotes omitted).

Gribble v. Gribble, 583 P.2d 64, 66 (Utah 1978). In that case, the stepfather had lived with the child from the latter's age of two months to four years old, had treated him as his own son, and had expressed concern about his future. After the divorce, the natural mother objected to visitation by the ex-stepfather. The relevant statute recognized visitation rights only in "parents, grandparents and other relatives...." Id. at 66. While the court noted that the stepparent relationship alone would confer no rights or obligations, the assumption of in loco parentis status would put him in a different position, conferring upon him the same rights as a natural parent and thus bringing a stepparent within the statute.

Additionally, the court ruled that divorce does not terminate the in loco parentis status:

"(O)nly the surrogate parent or the child is able to terminate the status at will, and the rights, duties, and obligations continue as long as they choose to continue the relationship." (footnotes omitted).

Id. at 67. The court then remanded ...