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Saffir v. Wheeler

Supreme Court of Alaska

February 22, 2019

DAISY SAFFIR, Appellant,

          Appeal from the Superior Court No. 3 AN- 17-095 13 CI of the State of Alaska, Third Judicial District, Anchorage, Herman G. Walker, Jr., Judge.

          Kara A. Nyquist, Nyquist Law Group, Anchorage, for Appellant.

          Michael Wheeler, Pro Se, Anchorage, Appellee.

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




         A mother wishes to relocate with her daughter to New York. She sought primary custody, alleging that the father's drinking and busy schedule made him an improper guardian for their two-year-old. The superior court concluded that it was in the child's best interests to remain in Alaska, in her father's custody. The mother appeals, arguing that the superior court erred in its analysis.

         Because the superior court did not properly consider the effect of separating the child from her mother, we vacate its custody order and remand for further analysis. However we affirm the court's decision not to order protective measures to ensure the father's sobriety while caring for the child.


         A. Facts

         Daisy Saffir and Michael Wheeler had a daughter in June 2015. They never married, but began living together during Saffir's pregnancy. Their relationship grew strained over the next two years, largely because of tensions caused by Wheeler's drinking, and they broke up in the summer of2017. They continued living together with their daughter throughout the proceedings in this case.

         Saffir's family lives in New York, and the couple discussed the possibility of moving there with their daughter before they broke up. But these discussions fell apart by the time they separated or shortly thereafter.

         B. Proceedings

         In October 2017 Saffir filed a complaint seeking primary custody of her daughter. She also filed a motion for interim custody requesting permission to move to New York with the child immediately.

         The superior court held a hearing on the motion for interim custody on December 20. Saffir testified that she maintained the child's routine and was her primary caretaker, and that Wheeler's drinking habits and work schedule interfered with his ability to parent. Saffir introduced a journal she had made to document Wheeler's drinking, with entries running from September 2016 to December 2017. She also introduced Wheeler's records from Providence Breakthrough Addiction and Behavioral Health Services - a treatment center where Wheeler had been provisionally diagnosed with mild "alcohol use disorder" - and testified that he resumed drinking after completing outpatient treatment there in June 201 6. In response Wheeler testified that he participated in the child's day-to-day care, but that Saffir "micromanaged" him and made it difficult for him to do things like put their daughter to bed. He said the drinking Saffir reported was the result of the tensions in their relationship and disputed the conclusions reached by Providence Breakthrough.

         The superior court denied Saffir's motion for interim custody, making oral findings that it had not "heard . . . anything that says any of [Wheeler's] conduct is detrimental to the child." But the court did "order that... Wheeler not have any alcohol around the child." It also found that "Saffir has been the primary custodian."

         The superior court held final custody hearings one month later, on January 29 and 31, 2018. It had previously clarified that it would also consider the evidence presented at the interim custody hearing when making its final custody decision. The issue of Wheeler's drinking dominated the proceedings. Saffir's stepfather and sister both testified that they had seen Wheeler drink excessively when he visited them in New York. They further testified that Saffir actively tried to involve Wheeler in the child's life. Saffir also offered the testimony of a counselor who assessed Wheeler for Providence Breakthrough and expert testimony from Vivian Patton, a counselor who treats "mental health and substance use issues," but who did not interview Wheeler and based her opinion solely on his medical records and the litigation materials. Both said that Wheeler met the criteria for alcohol use disorder. Finally Saffir herself testified at length about Wheeler's schedule and drinking, and said that she had found him intoxicated while caring for their daughter on three separate occasions. She also explained how she facilitated Wheeler's involvement with their daughter.

         For his part Wheeler testified that his work schedule was flexible enough to allow him to care for the child and that he had been an active part of her life since birth. He disputed Saffir's testimony about his alcohol use and claimed that he had been sober for "three or four" months prior to the trial. He introduced data from Soberlink- a service that uses a portable breathalyzer to monitor alcohol use at scheduled times - to demonstrate his sobriety. Finally he sought to discredit Saffir's journal with the testimony of three friends.

         At the end of the hearing, the superior court made several oral findings. It concluded that "Saffir has been controlling" and that this is "interfering with . . . Wheeler's ability to parent." It also found that the testimony of Saffir's relatives about Wheeler's alcohol use was credible, but found Wheeler's testimony credible as well. In contrast the court did not "find [Saffir's journal] very reliable," and expressed a skepticism that it was created for litigation purposes. Finally the court stated that "the drinking has been mitigated to an extent by the steps that . . . Wheeler has taken," including using Soberlink and enrolling in Providence Breakthrough.

         The superior court issued its final custody order in February 2018. It concluded that "it is in the child's best interest to remain in Alaska until kindergarten," but that "[w]hen [she] reaches kindergarten age the court will consider this a substantial change of circumstance and the parties can readdress custody again." In reaching this decision, the court first addressed Saffir's relocation to New York and the impact such a move would have on the child. It found that Saffir had a legitimate reason to move to New York, but that "[c]onsistent contact with [Wheeler] will be disrupted if [the child] is allowed to relocate." While the court recognized that the child would benefit from the extended family she has in New York, it reasoned that Saffir's actions while in Alaska "indicate[] that she is overly protective of [the child] to such an extent it interferes with [Wheeler's] ability to parent" and that "[t]his control will be exacerbated in New York." The superior court found that Saffir had been the child's "primary day to day caregiver," but that this was at least in part because she had prevented Wheeler from "handl[ing] day to day issues."

         The court then proceeded to consider the child's best interests, discussing each of the factors listed in AS 25.24.1 50(c).[1] It found that (1) the child had no special needs; (2) that both parents had the ability and desire to meet her needs; (3) that the child was not old enough to have a preference between her parents; (4) that love and affection existed between the child and each parent; (5) that "maintaining stability and continuity in Alaska at this time is important for the child" because Saffir's tight control over the child's schedule would "thwart [Wheeler's] ability to parent when he has custody"; (6) that Saffir's "actions demonstrate that she will not allow an open and loving relationship between" Wheeler and the child and that this would "be exacerbated if [the child] is allowed to relocate to New York"; (7) that there was no evidence of child neglect or abuse; and (8) that Wheeler had "taken steps" to address his drinking problem and that his "alcohol issues" did not "affect the well[-]being of the child."

         Based on these findings, the superior court awarded primary physical custody to Wheeler if Saffir moves to New York. In that scenario Saffir was awarded custody of the child for one week each month, with the location of her custody alternating between New York and Alaska. In the event that Saffir stays in Alaska, the court ordered a 2-2-3 custody schedule. The court did not impose any ...

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