Moore v. McGillis

         Appeal from the Superior Court No. 1KE-10-00676 of the State of Alaska, First Judicial District, Ketchikan, William B. Carey, Judge.

          Allison Mendel and John J. Sherman, Mendel Colbert & Associates, Inc., Anchorage for Appellant.

          Blake M. Chupka, Chupka Currall LLC, Ketchikan, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and Carney, Justices.

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         A mother moved to modify an existing custody arrangement with her ex-husband. She asked that she be given primary custody of their daughter and that the ex-husband's visitation rights and legal custody over her son - the ex-husband's stepson - be terminated. The trial court denied her motion and found that, given the recent intervention of the stepson's biological father, the ex-husband's obligation to pay child support was terminated.

         We affirm the trial court's denial of the modification motion with regard to the daughter. But we hold that the legal intervention of a previously absent biological parent constitutes a substantial change in circumstances as a matter of law, and accordingly we reverse the trial court's denial of the modification motion for the son and remand for best interests findings under AS 25.24.150(c). Finally, we hold that a psychological parent's child support obligation continues so long as that parent maintains some custody of the child, and reverse the trial court's absolution of the ex-husband's child support obligation.

         II. FACTS AND PROCEEDINGS

         A. Prior Modification Motions

         Nickcole Moore and Forrest McGillis were married in Ketchikan in 2006. Nickcole had a son from a previous relationship, born in 2004. The son's biological father, Jeremy Thompson, had been absent since the son's birth. In 2007 Nickcole and Forrest had another child, a girl.

         In November 2010 Forrest filed a petition for divorce. The superior court issued a decree of divorce in December 2011 after a two-day hearing. The court awarded the parents shared legal custody of both children. Forrest received primary physical custody of their daughter in Ketchikan, while Nickcole, who had since moved to Arizona and begun a new relationship, received primary custody of her son. The court found that Forrest had established himself as the boy's psychological father, ^[1] and awarded him visitation with the son in Ketchikan for four weeks every summer and two weeks during the Christmas season in alternating years.^[2] Nickcole was awarded a similar arrangement with their daughter. Both parties were ordered to allow twice-per-week telephone contact with the child in the other's custody.

         In May 2012 Nickcole filed a motion to modify custody, asking for "full custody" of her son and primary custody of her daughter. She alleged that the living situation in Ketchikan had deteriorated, that Forrest had prevented meaningful contact with their daughter, and that Forrest had assaulted Nickcole during the most recent custody exchange. Forrest denied the assault allegation and claimed that his living situation was "perfectly suited for the blended family being raised" by him and his girlfriend.

         The court denied Nickcole's motion after a hearing. It concluded, based on recordings of the alleged assault and on witness testimony, that Nickcole had fabricated the incident and "perjured herself in court." It dismissed her other claims as unproven and exaggerated.

         In May 2013 Nickcole filed a second motion to modify custody and child support, asking for primary custody of their daughter and sole custody of her son. She repeated a number of allegations regarding Forrest's "chaotic" living environment and his refusal to facilitate contact with the children, and added that the recent reappearance of Jeremy Thompson, her son's biological father, should be considered a changed circumstance warranting modification.

         The court denied Nickcole's motion without a hearing. It found her allegations regarding contact and Forrest's living conditions unsupported and stated that the reappearance of the son's biological father and his increased contact with the son "[did] not mean that . . . custody . . . needs to be modified."

         In May 2015 Jeremy filed a "Petition to Intervene in Custody Action and Request for Allocation of Parental Rights and Responsibilities" as the son's biological father. Shortly thereafter Nickcole filed a third motion to modify custody, seeking to terminate Forrest's visitation rights to the son and once more asking for primary physical custody of their daughter. She alleged that Forrest's relationship with her son had diminished, that Jeremy had since developed a "strong relationship" with the son, that Forrest's living situation had "deteriorated" since the original custody order, and that Forrest was "interfering with Nickcole's right to telephone contact with[their daughter]."

         Forrest opposed Nickcole's motion, but agreed that Jeremy could intervene and assume parental responsibilities, including Forrest's child support obligation. Nickcole objected that Forrest could not both maintain custody of the son and absolve himself of his support obligation.

         The court granted Jeremy's petition to intervene, scheduled a hearing on Nickcole's motion, and appointed a custody investigator.

         B. The Modification Hearing And The Court's Findings

         At the hearing the custody investigator testified and recommended that physical custody remain largely within the status quo: primary physical custody of the son with Nickcole and primary physical custody of the daughter with Forrest. But he also recommended that Nickcole be awarded sole legal custody of her son, and suggested "fine-tuning" the custody schedule to reduce the son's summer visitation in Ketchikan to three weeks to better reflect the child's developing preferences. The custody investigator testified that the children had grown accustomed to their alternating, dual-household lifestyle, and that the primary concern for the parents should be maintaining stability. Although the parents offered two different types of home - Forrest living with extended family in Ketchikan, Nickcole with a nuclear family in Phoenix, Arizona - the custody investigator testified that neither environment was superior to the other and that both children appeared to be doing well in their respective homes.

         The custody investigator also testified that Forrest and Nickcole were ineffective communicators. He described Nickcole as more willing to facilitate phone contact between Forrest and the children, and Forrest had confirmed to the investigator that his phone contact with the son had been "less than adequate."

         Nickcole testified that Forrest's contact and relationship with her son had been diminishing over time and that the son was now less interested in speaking to Forrest than in speaking to Jeremy, with whom he communicated often. She stated that Forrest had not allowed her to contact their daughter as the custody order required. She claimed that she was only able to speak to their daughter once every two to three weeks although she tried to call twice a week. She also argued that Forrest's new work schedule - 2 p.m. to 10 p.m. on weekdays - kept him from the children even when they were visiting with him.

         The court found that Nickcole had not demonstrated a substantial change in circumstances as to the daughter. Nickcole's problems communicating with Forrest, it found, were partly due to Nickcole's "rather rigid and self-righteous attitude, " and were "nothing new." The court then proceeded to "consider the physical, emotional, mental, religious, and social needs of the child, " and concluded that there was no indication that Forrest's care of their daughter was unsatisfactory. The court found that both children ...