Lee v. Cox

COMPTON, Justice,

concurring.

I concur with parts B and C of the opinion of the court, and with the result of part A, remanding the case for further findings concerning the impact on Derek of a move to Washington. However, I believe that the court misapprehends what is required in the way of demonstrating a “substantial change in circumstances” sufficient to relit-igate child custody.

AS 25.20.110 provides that “[a]n award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and *1364the modification is in the best interests of the child.” (Emphasis added). The statute on its face does not authorize a modification for any substantial change in circumstances; rather it permits a modification when “circumstances require.” The question that now arises is what kind of circumstances? AS 25.20.110, while not a model of clarity, seems to answer the question: circumstances which directly impact this particular child’s best interests.

We have often said that the paramount concern in child custody decisions is the child’s welfare and not the parent’s wishes. E.g., S.N.E. v. R.L.B., 699 P.2d 875, 877 (Alaska 1985). Accordingly, before it can be said that a change in circumstance requires modification of an award, the change in circumstances must suggest a direct impact on the particular child, whether beneficial or detrimental. Only after such a showing has been made should a court undertake a new “best interests” inquiry. A change in circumstances having a substantial impact on the life of one parent, yet little impact on the particular child, positive or negative, does not suffice to justify uprooting an otherwise stable custody arrangement. Cf. S.N.E., 699 P.2d at 878 (to constitute a substantial change in circumstances, conduct of the parent must have an actual impact on the child).

In House v. House, 779 P.2d 1204, 1208 (Alaska 1989), I joined in an opinion which held that a showing of “likely detriment” is not required to reopen the question of custody; rather the mere fact of an out-of-state move sufficed. Further reflection has convinced me that AS 25.20.110 requires at least some evidence of a direct impact on the child before a comprehensive inquiry into the child’s best interests should be again undertaken. Although it may often be the case that an out-of-state move by the custodial parent will have such a direct impact on the child by interfering with the other parent’s visitation, this is not necessarily true. A visitation scheme may be such that an out-of-state move has little or no impact on visitation (i.e., the parents live in different regions of Alaska and the child travels to see the non-custodial parent on alternative holidays and in the summer, or a visitation scheme may have been abandoned by the non-custodial parent, such that little if any visitation is lost). Or despite a substantial impact on visitation, restructuring visitation will not negatively impact the existing stable custodial relationship and will adequately foster benefits flowing to the child from visitation.

In the instant case, the findings are simply devoid of analysis concerning whether Elizabeth’s proposed move to Washington would impact Derek at all. Draft opinion at 1361-1362. On this record we can only speculate. Accordingly, I agree that the custody determination should be reversed and remanded for further findings.