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Georgette S.B. v. Scott B.

Supreme Court of Alaska

December 7, 2018

GEORGETTE S.B., Appellant,
v.
SCOTT B., Appellee.

          Appeal from the Superior Court of the State of Alaska No. 3 AN-14-04278 CI, Third Judicial District, Anchorage, Patrick J. McKay, Judge.

          Larissa Hail and Kris O. Jensen, Law Offices of Dan Allan & Associates, Anchorage, for Appellant.

          Scott B., pro se, Anchorage, Appellee.

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

          OPINION

          MAASSEN, JUSTICE.

         I. INTRODUCTION

         A mother appeals from an order modifying custody, which awarded sole legal and physical custody of her three children to the father and limited her to supervised visitation pending the children's full engagement in therapy. The mother argues that the father failed to demonstrate a change in circumstances that would justify a modification of custody and that the resulting modification was not in the children's best interests.

         We conclude that the superior court did not abuse its discretion when it determined that the mother's interference with the children's therapy amounted to a change in circumstances and that the children's best interests were served by an award of sole legal and physical custody to the father while therapy took hold. We therefore affirm the court's order modifying custody.

         II. FACTS AND PROCEEDINGS

         A. Background

         Georgette S.B. and Scott B.[1] married in 2002 and divorced in 2015. They have three children born during the marriage, two boys and a girl.

         The superior court issued a custody order in November 2014. The court observed that "[t]he parties have had a highly acrimonious separation," but it found "that both parents express the desire to meet the children's needs and that both are capable of meeting the basic needs of the children." The court therefore ordered joint physical and legal custody, with a legal custody exception for the children's educational and therapeutic needs, on which Scott had the final say. The court ordered Scott to enroll the children in therapy and ordered both Georgette and Scott to "try to alternately attend the children's individual therapy and... fully cooperate and participate as requested by the individual therapists."

         In July 2015 Scott filed a motion to compel Georgette to participate in the children's therapy and to modify the 2014 order to give him sole custody of the children. In October he moved to hold Georgette in contempt for failing to allow the children to participate in therapy, making disparaging remarks about him to the children, exposing the children to litigation matters, and failing to follow the court-ordered custody calendar. The court found Georgette in contempt following a hearing. The court discussed the therapy schedule for the next few weeks and specified which parent would be taking the children to each appointment. Looking forward to the scheduled custody modification hearing in three months' time, the court stated: "If you don't keep these kids in therapy, I will do what's necessary to make sure they're in therapy. I cannot be any clearer, and I want the court record [] to reflect that I am looking directly at Ms. [S.B.] when I am saying this."

         In January 2016 the court held an evidentiary hearing on Scott's modification motion. The court did not change the existing joint custody arrangement, only its day-to-day execution. The court noted its continued displeasure with Georgette's failure to support the children's therapy but said it would give the parties one more chance to cooperate with therapy and other activities, or it would be forced to award full custody to one parent.

         B. The March 2017 Custody Modification

         Scott again moved to modify custody in November 2016. The court held a three-day trial the following March and heard from 21 witnesses, including the children's former therapists. The court then put its findings and conclusions on the record. The court found that all three children had "a special need for psychotherapy" but that Georgette, by her "fail[ure] to support past therapeutic involvement," had "interfered with a smooth therapeutic intervention for the children." The court found that Georgette's "confrontational] communication style andrefus[al] to accept the realities of the scope of assistance required [had] interfered with the children's schooling in the past and the children's therapy, both past and present." It found that Georgette's "lack of support for therapy was conveyed to the children through either words, actions[, ] or attitudes in such a manner that the children did not feel that they [had] to cooperate in the therapeutic process and ... [that] disrupted the therapeutic process."

         The court noted that "Denali Family Services and Counseling Solutions [were] no longer an option for these children, ... in no small part . . . due to [Georgette's] sabotaging the therapeutic relationship." But the court found it "interesting" that the children had been more involved "when [Georgette] chose and supported" a therapist at Southcentral Foundation in December 2016, after Counseling Solutions had ceased its sessions. The therapist Georgette selected could not continue beyond four sessions because of Southcentral's eligibility criteria, and Scott was attempting to establish "another therapeutic family relationship, including wraparound services, with Anchorage Community Mental Health." But the court was concerned that Georgette did not "fully support[] these services, and there [was] already indication that [the older boy was] resistant to therapy."

         The court concluded, "[r]egretfully," that the needed therapy would not "take hold" unless the children were given time to be "fully engaged in the therapeutic process" outside their mother's negative influence. It found that Scott, unlike Georgette, had "always been open to receiving professional assistance." The court awarded "both sole legal and sole physical custody of the children" to Scott and, "at least temporarily," limited Georgette to supervised contact with the children. The court stated its "intention ... to use this period of [] supervised contact between mother and the children as something of a respite to allow the children to begin to fully engage in therapy." It required Georgette to "obtain a psychological evaluation" and encouraged her to "follow any reasonable recommendations made in" that evaluation, "which will go a long way towards her regaining unsupervised and frequent contact with the children." Elaborating on this requirement in a subsequent written order, the court authorized Georgette to move "for unsupervised visitation upon providing certification from a professional versed in high-conflict parenting that [Georgette] has acquired both a clear understanding of, and intent to apply, healthy and appropriate boundaries with the children in both her communications and non-verbal cues about their father and their third-party providers."

         Georgette appeals, arguing that the superior court erred in finding a substantial change in circumstances and, assuming there was such a change, abused its discretion in deciding that the children's best interests ...


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