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Laura B. v. Wade B.

Supreme Court of Alaska

July 6, 2018

LAURA B., Appellant,
v.
WADE B., Appellee.

          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, ...


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