Craig v. McBride, 5358

• Decision Date: 29 January 1982
• Docket Number: No. 5358,5358
• Citation: 639 P.2d 303
• Parties: Mary A. CRAIG, Appellant, v. Casey McBRIDE, Appellee.
• Court: Alaska Supreme Court

Page 303

639 P.2d 303

Mary A. CRAIG, Appellant, v. Casey McBRIDE, Appellee.

No. 5358.

Supreme Court of Alaska.

Jan. 29, 1982.

Bruce Horowitz, Alaska Legal Services Corp., Juneau, for appellant.

A. Lee Petersen, A. Lee Petersen, Inc., Anchorage, for appellee.

Deborah Holbrook, Juneau, guardian ad litem.

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

OPINION

COMPTON, Justice.

This is a custody dispute. The mother and the guardian ad litem ¹ appeal from the decision of the superior court which granted primary custody of Aurora Craig-McBride, a minor child, to her father. We cannot affirm the decree in this case because the award of custody to the father may in part derive from consideration of impermissible criteria. Accordingly, we remand this matter for further proceedings.

We need only briefly set forth the facts of this case. ² The claimants, Mary Craig Bird and Casey McBride, are the natural parents of Aurora. The parties lived together in Skagway, Alaska for much of the period between Spring 1975 and January 1977. Aurora, now five and one-half years old, was born March 7, 1976.

At the time of trial, the mother resided in Juneau with her husband, who she married in March 1978, and her daughter Alim, Aurora's older half sister. The father continued to reside in Skagway, where he shared a house with two other single men. By all accounts, he is a respected community leader. The court, the guardian ad litem, and the child care specialist agreed that either parent was capable of giving Aurora adequate care.

Much of the evidence concerned the relative instability of the parties. Both had parented other children out of wedlock. Both had been involved in numerous intimate relationships. The principal distinguishing feature in terms of stability was that the father had worked diligently to establish a settled home in Skagway, while the mother frequently moved from city to city without establishing a stable home environment.

The court properly sought to identify the best interests of Aurora by reference to the factors set forth in AS 09.55.205. ³ As is the case in many custody disputes, each parent had unique attributes which militate in favor of an award of custody. The court determined that the father could better provide for the physical and mental needs of Aurora, while the mother could better provide for Aurora's emotional and social needs. With respect to the other factors delineated in AS 09.55.205, the court determined that the claimants were equally desirable. On balance, the court concluded that the father's "relatively more stable circumstance in the community of chosen residence, his economic abilities, and his generally better disciplined management of his life's affairs makes him the more capable of reliably meeting the needs (of the child) indicated in the future." Accordingly, the court awarded custody to the father. ⁴

Custody disputes are among the most difficult matters which confront a trial judge. As a consequence, this court has often noted that trial courts enjoy wide discretion in resolving custody disputes. Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977); Horton v. Horton, 519 P.2d 1131 (Alaska 1974). Our role upon review is restricted. This court determines only if the trial court abused its discretion by considering improper factors in making its determination, by failing to consider statutorily-mandated factors, or by assigning too great a weight to some factors while ignoring others. Johnson v. Johnson, 564 P.2d 71, 74 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978); Horton v. Horton, 519 P.2d 1131 (Alaska 1977); see Deivert v. Oseira, 628 P.2d 575 (Alaska 1981).

It is apparent that the deciding factor in this case was the court's assessment of the relative stability of the parties. For that reason, the principal question raised on appeal is whether the court's determination that the father offered a more stable environment reflected only the consideration of permissible factors.

Concluding that the father had "better disciplined management of life's affairs," the court contrasted the instability which the mother had exhibited:

I am concerned about the history of the mother with respect to the number of different living situations she has moved into in recent years, and the lack of stability in terms of fixing a home and a place the child might know as a stable home. Although it is true that at the time of trial the (mother) appeared to be in a satisfactory marriage relationship, her husband, Tracy Bird, having testified, nevertheless the extent to which she has moved about, borne children out of wedlock and demonstrated an instability in terms of place or relationship makes award of custody to her less desirable than to the father at this time. (Emphasis added.)

The relevant portions of the Findings of Fact, drafted by the father's counsel and signed by the court, roughly parallel these statements:

In contrast, the mother, though recently married, has shown an unstable work history and a life style characterized by frequent moves and few ties. The child which is the subject of this action is the third child born to the (mother) out of wedlock. Based upon the extent to which she has moved about, borne children out of wedlock, and demonstrated instability in terms of place or relationship an award of custody to her is less desirable than to the father. (Emphasis added.)

We conclude that the court's reference to the fact that the mother had borne children out of wedlock and demonstrated an instability in terms of relationships was improper. At best, such comments subjectively tainted the court's decision; at worst, they suggest that the court interjected impermissible factors in the course of its deliberations. See Carle v. Carle, 503 P.2d 1050 (Alaska 1972). ⁵

Viewed in context, it is evident that the court was more generally concerned with the respective stability of the claimants, not their sexual conduct. Clearly, stability is a proper consideration. ⁶ Thus, the fact that the father had lived in Skagway a number of years, obtaining the broad respect of the community, was undeniably relevant. In the same vein, the fact that the mother had only recently attempted to create a stable home environment was also entitled to consideration. Indeed, we do not preclude the court from determining on remand that factors such as these if the evidence shows that they still exist and are still to be given the same relative weight, are dispositive. ⁷

Yet, we cannot countenance the court's reference to the mother's sexual conduct. Whether intended as condemnatory of the mother's sexual conduct or only as indicative of the mother's unstable life style, our concern is that the mother's bearing of children out of wedlock or her instability in terms of relationships should be determinative only were such conduct to adversely affect the child or the mother's parenting abilities. As we stated in Britt v. Britt, "evidence of the lifestyle, habits, or character of a custody claimant is relevant only to the extent that it may be shown to affect the person's relationship to the child." 567 P.2d 308, 311 (Alaska 1977); see Bonjour v. Bonjour, 566 P.2d at 669; Horutz v. Horutz, 560 P.2d at 401. The record in the present case offers scant evidence of any adverse effect resulting from the mother's conduct. ⁸

The present case cogently illustrates that a court's reference to such factors as a parent's sexual conduct oftentimes intimates the court's denigration of a parent's chosen life style. To avoid even the suggestion that a custody award stems from a life style conflict between a trial judge and a parent, we reiterate that trial courts must scrupulously avoid reference to such factors absent evidence of an adverse effect to the parent-child relationship.

A second issue raised on appeal is whether it was error for the trial court to separate Aurora from her half sister Alim without articulating "compelling" or "necessary" reasons why such a separation was in Aurora's best interest. We address the governing legal principles in order to offer guidance to the trial court.

This court has often embraced the proposition that it is desirable to not separate siblings in the course of custody disputes. Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973); Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962); see Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977). ⁹ Divorces and custody disputes are traumatic enough without needlessly severing sibling relationships.

Yet our concern for maintaining sibling relationships has not been transformed into a rigid rule to govern all situations. It is simply inappropriate to resolve custody disputes by application of rigid legal maxims. ¹⁰ In Nichols v. Nichols we articulated a more flexible approach:

(C)onsideration should be given to the desirability of not separating the children unless their welfare clearly requires such a course. As in other facets of the difficult problems confronting a trial judge in custody matters, there is no hard and fast rule. The question of whether or not it is necessary to separate children must depend upon the facts and circumstances of each particular case.

516 P.2d at 736 (footnote omitted.)

Contrary to the mother's assertion, the Nichols standard does not require a showing of "necessary" or "compelling" reasons in order for a trial court to separate siblings. Rather, we prefer to accord trial judges the necessary discretion to best respond to the myriad of factual settings which will invariably arise in custody matters, at all times cognizant that it is the best interests of the child which is the paramount consideration. Though maintaining sibling relationships will typically be in the best interests of the child, cases will undoubtedly arise where the best interests of the child dictate otherwise. ¹¹

The jurisdictional...