JANELLE L. SWEENEY, Appellant,
ROBERT J. ORGAN, Appellee
from the Superior Court of the State of Alaska, Fourth
Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Superior Court No. 4FA-04-00025 CI.
Neubert, Neubert Law Office, LLC, Fairbanks, for Appellant.
Stapp, The Law Office of Gary L. Stapp, Inc., Fairbanks, for
Stowers, Chief Justice, Fabe, Winfree, Maassen, and Bolger,
couple had one child during their marriage. After their
divorce the parents shared physical and legal custody of the
child. In 2013 the mother filed a motion to modify custody
requesting primary physical custody to move with the child
from Fairbanks to Anchorage, and the superior court granted
her primary physical custody for as long as the parties
resided in different communities. The court also made
findings regarding the father's abusive communication
style. The father moved to Anchorage soon after the mother,
and the parties began sharing physical custody again. After
an incident where the father brought the police to the
mother's residence because she had declined to give him
visitation time outside the custody order, the mother again
moved to modify custody. Following a three-day hearing, the
court found that there was a change in circumstances and
modified legal custody by giving the mother the right to make
all major parenting decisions. But it declined to give the
mother primary physical custody because it found that doing
so would be devastating to the child and would increase the
friction between the parents.
mother appeals; her sole argument on appeal is that the
superior court misapplied the best interest factors. She
argues that the court should have awarded her primary
physical custody because it found that the father's
abusive communication style had not changed. And she argues
that the court essentially rewarded the father's bad
behavior by finding that friction between the parents would
increase if they did not share physical custody equally. We
affirm the superior court's order.
FACTS AND PROCEEDINGS
Sweeney and Robert Organ married in November 1997 in
Fairbanks. They had one child, Elizabeth, who was born in
2000. Elizabeth was born with Dandy Walker Syndrome, a
congenital brain malformation that causes her to function
below her chronological age. The parties divorced in February
2005 and agreed to joint legal and shared physical custody:
the physical custody arrangement provided for a 4/3-3/4
alternating week schedule with each parent having Elizabeth
for 50% of the time annually. That arrangement changed to a
week-on/week-off schedule in March 2014. Janelle subsequently
remarried and had a second child.
Janelle filed a motion seeking primary physical custody of
Elizabeth so that she and Elizabeth could move to Anchorage.
The superior court granted Janelle primary physical custody
of Elizabeth during the school year and Robert custody of
Elizabeth during Elizabeth's summer vacation. But the
court ordered that custody return to shared physical custody
if the parents were to live in the same community again.
that order, Robert decided to move to Anchorage to be able to
have shared physical custody. It took Robert a few months to
make the move, and during that time Janelle exercised primary
physical custody of Elizabeth. While Robert was in the
process of moving he requested many weekends of visitation
with Elizabeth that were outside the court's order. On
one occasion, after Janelle denied Robert's visitation
request, he showed up at Janelle's sister's house
(where the family was living) with two Anchorage police
officers, explaining that he wanted to give Elizabeth a
present. Janelle believed that this was intended to harass
and embarrass her, and she felt " shocked, frightened,
and unnerved to have police show up at the house." She
stated that the incident also greatly distressed Elizabeth.
filed a motion to show cause in response to the police
incident, and after a hearing the superior court found
Robert's conduct to be " intentional and malicious
and designed to be disruptive." The court warned that
continued disruptive conduct by Robert would constitute a
change in circumstances that could justify modifying the
custody order such that Janelle would have primary physical
custody and Robert would have very restricted visitation.
on the court's findings, Janelle filed a motion to modify
custody requesting primary physical and sole legal custody.
The court held a three-day evidentiary hearing in August and
September 2014. The court found that Robert's
disrespectful and power-oriented manner of speaking to
Janelle had be come intentionally disrespectful conduct that
represented a change in circumstances. Specifically, the
court concluded that the police incident was " ...