Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, William F. Morse, Judge. Superior Court No. 3KN-13-00241 CI
Jennifer Wagner and Timothy W. Seaver, Seaver & Wagner, LLC, Anchorage, for Appellants.
Roberta C. Erwin and Robert C. Erwin, Palmier ~ Erwin, LLC, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
A grandparent petitioned for restriction-free visitation with his grandchildren after they moved out of state. The parents conceded that visitation with the grandparent was in the children's best interests, but opposed court-ordered visitation, stating that they had never denied reasonable visitation and would continue to allow visitation with some restrictions. Without finding any of the parents' visitation restrictions unreasonable or any history of denying reasonable visitation, the superior court entered an order requiring "reasonable" visitation. The parents appealed, arguing that the order violated their constitutional rights to the care, custody, and control of their children. Immediately after oral argument we vacated the superior court's visitation order. We now explain the basis for that order, and because the superior court's findings preclude the possibility that a constitutional visitation order could be entered based on the record in this case, we also dismiss the grandfather's visitation petition in its entirety.
II. FACTS AND PROCEEDINGS
Stefanie Ross and John Bauman are the unmarried parents of two young children. In September 2012 Stefanie and the children moved from Homer to Washington to live with her family while her grandparents reached the ends of their lives. In December 2013 John joined Stefanie and the children in Washington. They plan to stay there indefinitely.
Carl Bauman is John's father, and Carl resides in Soldotna. When the children lived in Homer, Carl occasionally visited with them. Carl's domestic partner, Simone, was a point of contention: Stefanie and John did not want Simone around the children; Carl disagreed with this choice; and Simone continued to be present during many of Carl's visits with the children. Stefanie and John also disapproved of other occupants of and visitors to Carl and Simone's home, including Simone's daughter.
After Stefanie and the children moved to Washington, Carl had no contact with them. The reason for this lack of contact is contested. In April 2013 Carl attempted to visit the children in Washington during a two-night stop there when he and Simone were returning to Alaska from Florida. It is unclear if Carl waited until he was in town to call Stefanie and her family to coordinate visitation or if he began calling sooner. Stefanie's grandfather was dying, and Stefanie did not coordinate visitation with Carl. Carl dropped off gifts for the children at the house where Stefanie was staying, but did not see them or her.
At some point after the initiation of these court proceedings Carl began having telephone calls with the children, but he had no plans to visit the children again until summer 2014.
1. Pre-evidentiary hearing proceedings
In March 2013, shortly before the failed April visit noted above, Carl petitioned for grandparent visitation, seeking "two weeks of unfettered grandparent visitation annually, in Alaska or another state of [Carl's] choice." In their answer to Carl's petition, Stefanie and John asserted that Carl had never been denied reasonable visitation and that AS 25.20.065 (Alaska's grandparent visitation statute), the U.S. Constitution, and the Alaska Constitution all require such a denial before a grandparent can successfully petition for visitation.
The court held a status hearing in September. Carl stated that the later-planned evidentiary hearing could take longer than he anticipated if Stefanie and John were to "challenge the constitutionality of [AS 25.20.065]." Stefanie and John responded that they would likely "make constitutional arguments . . . because [Carl] has not been denied access. He's been denied the access that he wants." Carl argued that if a motion regarding constitutionality were made, he would need time between the motion's filing and the final hearing to conduct unexplained "medical" discovery. The court set a December deadline for "motions regarding the statute, " including "motions regarding the parameters or validity of the grandparent visitation statute." The record contains no motions filed between the September hearing and the December deadline.
In April 2014 the parties filed hearing briefs. Carl detailed his and Simone's interactions with the children. He also highlighted parenting disputes he and Simone had with Stefanie and John: Simone celebrates Easter, but Stefanie does not; Stefanie "enforced a rigid diet on the children, " and Simone would offer dessert to the children in contravention of the diet; Carl requested overnight visits, but John and Stefanie refused; Carl and Simone once bought many new outfits for one of the children, but Stefanie only gave some to the child because all would be "too much"; and Stefanie and John do not like their children calling Simone "Grandma Simone." Carl argued that "absent a court order, meaningful visitation is not likely to occur, " noting his advancing age and the physical distance between him and his grandchildren.
Stefanie and John argued that "[b]efore the Court [could] order any grandparent visitation over the parents' objection, [Carl would have to] establish by clear and convincing evidence that [Stefanie and John] are unfit to make visitation decisions." According to Stefanie and John, absent this showing, ordering visitation would violate their constitutional rights as parents. Stefanie and John asserted that they reasonably forbade contact between Simone and the children because of Simone's criminal history, mental health issues, alcoholism, drug problems, and undesirable associates. Stefanie and John also stated that they had not denied Carl visitation (without Simone), that after the children moved to Washington Carl had not sought visitation with them before filing the petition, and that after filing the petition Carl had not attempted to make telephone contact with the children for six months.
2. Evidentiary hearing
The superior court began the evidentiary hearing by attempting to restate the parties' positions, identifying the crux of the dispute as whether Carl's visitation could include Simone. Stefanie and John clarified that - because they were fit parents making reasonable visitation decisions - they opposed any court-ordered visitation as an infringement on their constitutional rights as parents. The court repeatedly questioned Stefanie and John's "philosophical objection" to court-ordered visitation, focusing on "practical" matters including the physical distance between Carl and the children and a hypothetical future where Stefanie and John might unreasonably deny Carl visitation.
The parties then argued what standard could constitutionally be applied in determining whether to order grandparent visitation. Carl asserted that the proper standard was whether the grandparent had proved by clear and convincing evidence that "visitation was in the best interest of the children." Stefanie and John asserted that Carl's simple "best interest" standard was constitutionally insufficient to protect fit parents' reasonable visitation decisions. They argued that the correct standard was whether the grandparent had proved by clear and convincing evidence that the "parents are unfit to make visitation decisions" or that the fit parents' visitation decisions were unreasonable and detrimental to the children. Although the court announced that it would detail the final standard in a later written opinion, it appeared to agree with Carl's standard. The court also assumed that it would be in a child's best interest to visit with a grandparent, barring a showing of the grandparent's unfitness.
Stefanie and John stipulated that Carl had established an ongoing relationship with the children, as required under AS 25.20.065(a)(1), but added that "they strongly believe[d] . . . [Carl] chose to reduce his contact with the kids in exchange for filing [the visitation] petition." Then modifying his initial request for "unfettered" visitation, Carl agreed that any visitation order could exclude Simone and her children.
The superior court detailed possible visitation orders while questioning Stefanie; although agreeing with the court's stated goals, Stefanie maintained her position that any court order would be overly intrusive. The court responded that the parents and Carl were "suspicious" of each other and that there was the "potential for more problems" without a court order, but that after trust was restored under an order, the order could be lifted because it would then be "unnecessary." When asked by the court what her rules for the children would be during a visit with Carl, Stefanie stated that the children's sugar intake must be minimal. The court responded, "I mean, you got to let the guy give the kid a bowl of ice cream." The court earlier had also stated that "kids deserve to get sort of spoiled by grandparents" by, for example, going to bed late and eating extra sugar.
At the end of the hearing's first day the court stated that it had a "tentative decision" and "[s]ort of the behavioral order" in mind. After receiving the court's draft visitation order on the second day, Stefanie and John objected to it. During John's testimony the court asked why it should trust him to allow visitation and questioned why he did not reach out to ensure Carl visited with the children after the move to Washington. John responded that he wanted his children to have a relationship with Carl, but "[t]he last time we spoke [Carl] made it very clear he's rejected all our proposals. . . . He wants things his way. There's no wiggle room. That's why we're here in court today. He doesn't like our answer." The court asked John what he would consider "reasonable" visitation, and John refused to give a definite answer, stating that he did not want to limit the time his children had with Carl. John also stated, "I don't believe anybody is qualified to be [our children's] parents more than we are." The court interjected, "[C]omments like 'replacing us as parents' [are] indicative of a complete misperception of what's going on here."
During closing arguments Stefanie and John argued that the best way for Carl to get visitation with the children would be to communicate directly with Stefanie and John, which he failed to do before filing this case. The court interjected that Stefanie and John had a responsibility to reach out to Carl too, that it was "troubled by both sides' stubbornness, " and that "the inertia of . . . distance" would make rekindling Carl's relationship with the children "very difficult" without "active, affirmative efforts on both sides." Stefanie and John argued that only because they "were willing to put up with [Carl] and turn aside over and over again because they felt it was an important relationship" did Carl have such a loving relationship with the children. They contended the court was unfairly burdening them by presuming they should have sought visitation between their children and someone who "sued them instead of picking up a phone" and calling to coordinate a visit.
When Stefanie and John again argued that a mere best interests standard would insufficiently protect their constitutional rights, the superior court again asked about a hypothetical future where Stefanie and John refused Carl visitation for no reason. They responded that they had never refused visitation without a reason and even had allowed visitation despite their stated visitation boundaries being disregarded. Stefanie and John argued that it would make no sense for the court to take their fundamental constitutional right to control visitation "just in case in the future they do something else." They stated that, based upon our decision in Evans v. McTaggart,  the proper standard to judge parental decision making in such a hypothetical circumstance would be whether the parents' choice is "plainly contrary to the child's best interests." Stefanie and John argued that the court should not issue an order in line with their visitation choices but, instead, should issue no order.
The superior court stated, "I'm not understanding the objection to the phenomenon of an order." Stefanie and John argued that issuing an order would convey to Carl and other uncooperative relatives that they do not have to communicate or work with parents - or respect parents' reasonable restrictions. They also replied: "What the court is suggesting is that for the next 12 years this court is going to be overseeing whether or not there's visitation for these kids and . . . what the ...