NICKCOLE E. MOORE, Appellant,
FORREST W. MCGILLIS, Appellee.
from the Superior Court No. 1KE-10-00676 of the State of
Alaska, First Judicial District, Ketchikan, William B. Carey,
Allison Mendel and John J. Sherman, Mendel Colbert &
Associates, Inc., Anchorage for Appellant.
M. Chupka, Chupka Currall LLC, Ketchikan, for Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
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.
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.
FACTS AND PROCEEDINGS
Prior Modification Motions
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.
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,  and awarded him visitation with the son in
Ketchikan for four weeks every summer and two weeks during
the Christmas season in alternating years. 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.
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.
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.
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.
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."
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]."
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.
court granted Jeremy's petition to intervene, scheduled a
hearing on Nickcole's motion, and appointed a custody
The Modification Hearing And The Court's
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
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
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.
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 ...