Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Erin B. Marston, Judge.Superior
Court No. 3 AN-12-10282 CI
Allison Mendel and John J. Sherman, Mendel Colbert &
Associates, Inc., Anchorage, for Appellant. Wade B., pro se,
Anchorage, Appellee.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
PER
CURIAM.
I.
INTRODUCTION
A
father requested primary physical custody of his daughter,
modifying the previous shared custody arrangement. The mother
opposed the change, arguing there had not been a substantial
change in circumstances. The superior court ordered a limited
custody investigation to resolve a factual dispute related to
the change in circumstances, promising a second hearing on
the daughter's best interests. But after the custody
investigator reported that the daughter wanted to live with
the father, the court granted the father primary physical
custody without holding a second hearing. The mother appeals
on due process grounds. We vacate the custody modification
and remand for further proceedings because the failure to
hold the second hearing denied the mother due process.
II.
FACTS AND PROCEEDINGS
Laura
and Wade B.[1] married in 1989 and had three children
together. Their youngest child, a daughter, is about a year
from turning 18. This appeal concerns only the daughter's
custody.
Laura
and Wade have joint legal custody of the daughter and have
been sharing physical custody on a week-on, week-off basis
since their legal separation in 2013. In April 2017 Wade
moved for full legal and physical custody. Wade claimed that
the daughter wanted to live with him full time, that Laura
was leaving the daughter home alone at night in violation of
the existing custody order while working, and that the
daughter was afraid when left alone at night. Laura opposed
the motion on various grounds, including that custody could
not be modified because Wade had not shown a substantial
change in circumstances had taken place.[2]
The
superior court held a hearing on Wade's motion. Each
party - self-represented - was placed under oath at the
beginning of the hearing. The parties adamantly disagreed
about whether the daughter was being left home alone at
night. The court indicated that being alone and afraid could
be a substantial change in circumstances but determined that
it could not resolve whether the daughter was actually alone
based on the parties' conflicting testimony. The court
ordered a limited custody investigation to resolve the
factual dispute. The court expressly told the parties there
would be a second hearing on the daughter's best
interests if the custody investigator reported that the
daughter was alone and afraid at night.
A
custody investigator interviewed the daughter and reported
that she wanted to live with Wade, that she was alone at
night and it was "kinda scary," and that Laura
would not let her go to church. The investigator assessed the
daughter as honest, upset about being alone at night, and
more upset about not being able to attend church. The
superior court accepted the custody investigator's
representations and issued a third supplemental custody order
granting Wade primary physical custody without holding a
second hearing on the daughter's best interests.
Laura
appeals, arguing solely that her due process rights were
violated by the failure to hold the second hearing.
III.
STANDARD OF REVIEW
"The
adequacy of the notice and hearing afforded a litigant in
child custody proceedings involves due process
considerations. A constitutional issue presents a question of
law which we review de novo, ...