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Matthew P. v. Gail S.

Supreme Court of Alaska

August 28, 2015

MATTHEW P., Appellant,
v.
GAIL S., Appellee

Page 1045

Appeal from the Superior Court of the State of Alaska, First Judicial District, Juneau, Louis J. Menendez, Judge. Superior Court No. 1JU-10-00843 CI.

Anthony M. Sholty, Faulkner Banfield, P.C., Juneau, for Appellant.

Notice of nonparticipation filed by Paul H. Grant, Juneau, for Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices. FABE, Chief Justice, with whom MAASSEN, Justice, joins dissenting in part.

OPINION

Page 1046

BOLGER, Justice.

I. INTRODUCTION

Following their separation two parents initially shared physical custody of their daughter. But after a domestic violence incident, the superior court awarded the mother sole legal and primary physical custody, while allowing the father telephone calls and supervised visitation. The father subsequently filed a motion to modify custody, seeking a return to equal physical custody. The superior court denied this request, concluding that the daughter's emotional needs and the father's unwillingness to foster a strong relationship between the mother and daughter supported the continuation of supervised visitation. Because the superior court did not abuse its discretion in considering the child's best interests, and because it articulated a plan through which the father could achieve unsupervised visitation, we affirm.

II. FACTS AND PROCEEDINGS

Matthew P. and Gail S.[1] were married and had one child together, Valerie, born in 2002. The couple separated in August 2011, and pursuant to a joint custody agreement the parents had joint legal custody of Valerie and shared physical custody under a " week-on/week-off" arrangement.

In March 2012 Matthew broke the windshield of Gail's car with his fist, which the superior court found to be an incident of domestic violence. Gail moved to modify custody, and after an evidentiary hearing the superior court concluded it was in Valerie's best interests that Gail be awarded sole legal and primary physical custody. The court required Matthew's visitation with Valerie to be supervised, but allowed him to have unmonitored phone calls with her. The court expressly ordered that " [n]either parent shall make disparaging comments about the other parent" during phone calls with Valerie.

Matthew moved to modify custody in March 2014, seeking a return to shared physical custody.[2] He argued that his completion of an intervention program for batterers constituted a material change in circumstances and alleged that Valerie had " been experiencing significant behavioral problems in school" and was " troubled in her current situation." The superior court held an evidentiary hearing in October 2014, at which both parties were represented. The court found that no substantial change in circumstances had occurred justifying a change to Valerie's custodial status, and Gail retained sole legal and primary physical custody of Valerie. Nonetheless, the court proceeded to consider the statutory best-interests factors.[3]

The superior court concluded that tightening the restrictions on Matthew's interactions with Valerie was in her best interests. The court ordered that phone calls between Matthew and Valerie be limited to one call per day, not to exceed 10 minutes in length, on days when Matthew did not have visitation. The court granted Gail permission to monitor these calls so long as she did not tape-record, memorialize, " negatively impact," or " unnecessarily intrude" on Valerie's conversations with Matthew. Finally the court ordered Matthew ...


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