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.
A. Nyquist, Nyquist Law Group, Anchorage, for Appellant.
Michael Wheeler, Pro Se, Anchorage, Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
BOLGER, CHIEF JUSTICE.
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.
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.
II. FACTS AND PROCEEDINGS
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.
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.
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
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.
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
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
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.
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
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
court then proceeded to consider the child's best
interests, discussing each of the factors listed in AS
25.24.1 50(c). 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."
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 ...