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Daves v. McKinley

Supreme Court of Alaska

August 10, 2018


          Appeal from the Superior Court of the State of Alaska, No. 3AN-08-07051 CI Third Judicial District, Anchorage, William F. Morse, Judge.

          Appearances: Alexander Daves, pro se, Youngstown, Ohio, Appellant.

          No appearance by Appellees Alexandrea McKinley and Kathryn Ledlow.

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




         The superior court awarded custody of a child to her maternal grandmother. When the father later moved for a modification of custody, the court denied the motion on the ground that there had been no substantial change in circumstances. On appeal the father argues that he should not have been required to show a substantial change in circumstances because the award of custody to the grandmother had been only temporary and he remained entitled to the parental preference.

         We conclude that the father's argument has merit. The superior court's oral remarks and written order granting custody to the grandmother, when read together, indicate an intent that there would also be a transitional period during which the parties would see how the child adapted to spending more time with her father, leaving open the possibility that the transition would result in permanent custody with the father. We conclude that in the absence of a grant of permanent custody to the grandmother, the father remains entitled to the parental preference, and the grandmother continues to have the burden of proving that the preference should be overcome.


         A. Facts

         Alexander Daves and Alexandrea McKinley met in Anchorage in the fall of2OO4. They dated for approximately a year and briefly lived together in late 2005 and early 2006, first with her parents and then with his. They separated before the birth of their daughter, V., in October 2006.

         At first Alexandrea was V.' s primary caregiver, and Alexander had regular visits. In April 2008, prompted by a dispute over visitation, Alexander filed a motion for interim custody. In August the court entered a custody order based on the parties' agreement that they would share legal custody, Alexandrea would have primary physical custody, and Alexander would have weekend visitation. The parties largely followed this schedule over the next several years, with some interruptions due to Alexandrea's temporary moves with V. to Metlakatla.

         In 2011 Alexander was admitted to medical school in Pennsylvania. In a custody order that June the superior court continued the prior custody arrangement - joint legal custody and primary physical custody with Alexandrea - but ordered that Alexander should have "reasonable visitation as his studies and the parties' finances permit," as well as "at least twice weekly phone contact."

         A series of custody orders in 2013 recognized the parties' continuing difficulties with visitation: Alexander alleged that Alexandrea was refusing to allow his visits and was leaving V. largely in the care of Kathryn Ledlow, Alexandrea's mother.[1]In September 2013 the court ordered a custody investigation. The report did not make any recommendations because of the investigator's limited contact with the parties, but among its conclusions was that "[i]t appears likely that the maternal grandmother [Kathryn] has been the person providing much of [V.'s] care in Anchorage." The superior court issued an order noting the report's completion and advising the parties that it would take no action on the report unless one of them moved to modify custody; neither one did.

         The parties appeared to get along with little judicial involvement over the next three years. Alexander had little contact with Alexandrea; his visits with V. were facilitated through Kathryn.

         B. Proceedings

         Two custody proceedings in 2016 and 2017 are central to this appeal.

         1. July 2016 order on Alexander's motion to modify custody

         In April 2016 Alexander filed a motion seeking primary physical custody of V. He identified several significant changes in his life: He was moving to Ohio for his medical residency, expecting to live there for at least three years, and he and his girlfriend intended to buy a house. He also alleged that there had been "new [criminal] charges against [Alexandrea] which might be an indicator of her stability." The superior court found these allegations inadequate to show a substantial change in circumstances affecting V.' s best interests, but, after Alexander filed a supplemental affidavit expanding on his allegations and alleging that Alexandrea had been leaving V.'s care entirely to Kathryn, the court scheduled an evidentiary hearing.

         Alexander and Kathryn appeared at the hearing, but Alexandrea did not. No one had a lawyer. Kathryn testified that V. had been living with her for the past three years and that she did not know Alexandrea's present whereabouts. She testified that she would not allow Alexandrea to live with her because of her drinking, though "[w]hen she's doing okay, I'll let her visit with [V.]." According to Kathryn, Alexandrea had not spent a night with V. in three years; she testified that Alexandrea had "been around" - "visiting" the child in Kathryn's home - "probably about 35, 40 percent" of the time.

         Alexander testified about his most recent in-person visits with V., including four overnights a week during a month-long return to Alaska in October 2014 and a two-week visit on the east coast in the spring of 2015. He testified that he had been exercising his right to weekly visitation via Skype. He also testified about his new home, explaining that he was ready for V. to move in with him permanently.

         The court noted its assumption that V. had "bonded greatly with" Kathryn because she had been "essentially the primary caregiver for three years"; Kathryn interjected that it had actually been for nine-year-old V.' s entire life, other than about six months when she was in Metlakatla with Alexandrea. The court asked Alexander "why [it] should . . . switch this living arrangement given that [V.] has lived with her grandmother essentially her entire life." Alexander responded that all prior custody orders and agreements had been based on the misperception that V. lived with her mother. The court acknowledged that Alexandrea had misrepresented her role in her child's life and that the court had been unaware that Kathryn had always been the primary caregiver. The court agreed this was "a little bit troubling."

          The court also noted its concern, however, that moving V. from her grandmother's home to live with a father she had rarely seen in person would be difficult, especially if the change were made abruptly. The court observed that "a more prudent path for [V.] is to have her spend more time in Ohio during the summers and keep open the possibility that she becomes more comfortable with the arrangement in Ohio and more comfortable with the idea of living with [Alexander] there during the school year." The court said that V. "deserves a transition, at a minimum, and should spend more time with [Alexander] during the summer in preparation for the possibility of spending the school year there." But the court cautioned it was possible that the "transition, not the transition, but the switch, to her living [with Alexander] during the school year never comes about because she is uncomfortable with that prospect." The court disclaimed any suggestion "that there's something wrong with [Alexander], or [his girlfriend] or with the home that [they] would create for [V.]"; the court was "more concerned with the child being not capable of making the transition very easily." The court said it would therefore "prefer to revisit the living arrangement after we see [V.'s] response to Ohio and when she gets a tiny bit older. And prepare her for the possibility that she's [going to] move to Ohio."

         The discussion turned to the logistics of V.'s travel. The court said it "would like to . . . have [V.] spend the remainder of the summer in Ohio with [Alexander]" and asked Alexander and Kathryn to work out the details, which they agreed to do. The court concluded that it "would ...

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