Nichols v. Mandelin

COMPTON, Justice,

dissenting.

I dissent.

As I discussed in my concurrence to Lee v. Cox, 790 P.2d 1359 (Alaska 1990), I believe that under the language of AS 25.20.-110, modification of a child custody award is appropriate only if there is a substantial change in circumstances which materially impacts the particular child’s best interests. Cf. Houger v. Houger, 449 P.2d 766, 773 (Alaska 1969) (modification of custody only appropriate “if it ha[s] been shown that since the date of entry of the judgment changed facts and circumstances affecting *1374the welfare of the children require[s] modification for the best interests of the children.”) (Emphasis added). Any material impact on this child as a result of a change in the economic status and substance-abusing habits of the non-custodial parent is purely speculative. A generalized improvement in the status of Crystal does not require modification of this established custodial arrangement.1 While Crystal is to be commended for overcoming her personal obstacles, no showing has been made that this alone has had a material impact on John. No sufficient showing of changed circumstances having been made, no “best interests” inquiry should be undertaken.

Moreover, this court has held that “mere improvement in the position of one of the parties is not sufficient to justify a change in custody.” Garding v. Garding, 767 P.2d 183, 186 (Alaska 1989) (quoting Gratrix v. Gratrix, 652 P.2d 76, 83 (Alaska 1982)). This is true even if the improvement is of extended duration and the improvement unilateral. Starkweather v. Curritt, 636 P.2d 1181, 1182 (Alaska 1981) (per curiam) (modification of custody decree denied despite finding that mother, who relinquished custody of children three years earlier in response to state petition to terminate her custodianship, was excellent custodian). If such an improvement, standing alone, cannot justify a change in custody, then neither can it justify reopening the issue of custody. Neither of the court’s grounds for distinction (recency or sole improvement) distinguish Starkweather.

Moreover, the court, in distinguishing Garding on the grounds that both parents showed improvement, gives no weight to improvements shown by Edward, most notably the significant efforts he has undertaken to improve his housing conditions and finding local, reputable employment in the field of education. Thus, this case is indeed much like Garding; “there is even less justification to award Crystal sole custody where both parents have markedly improved. See Garding, 767 P.2d at 186.

Starkweather and Houger aside, the court’s efforts to distinguish Garding and Gratrix do not answer our most basic difference. Courts will now need to determine whether a unilateral improvement is of “recent” vintage or is “long term.” Such distinctions encourage potentially damaging, annual rituals of attacks against stable custodial relationships. Where one perfectly adequate parent has remained so, even for many years, a previously inadequate parent may now, without more, seek to relitigate custody. Indeed, under the court’s rationale, the longer (and presumably more stable) the custodial relationship, the greater the justification to re-open old wounds, assuming the previously inadequate parent has not slipped back into inadequacy.

. It may be that in some circumstances a change in only the non-custodial parent’s circumstances will have a material impact on the child’s best interests. For example, a child has an illness treatable only through constant care at a clinic in Rochester, Minnesota. Neither the custodial nor non-custodial parent can afford to move to Minnesota. The non-custodial parent then gets a job transfer to Minnesota. Such a change in circumstances could materially impact the child's best interests.