Duffus v. Duffus

FABE, Justice,

with whom EASTAUGH, Justice, joins, concurring.

Although I agree with the result reached by the court, I write separately to articulate my differences with the court’s reasoning. As the dissenting opinion makes clear, the court must look to the best interests of the child in modifying existing custodial arrangements. AS 25.20.110(a). While the court’s opinion notes this standard in a footnote, it focuses primarily on whether Glynn represents a threat to the children. This focus suggests too high a threshold; even in the absence of a physical or emotional threat, a child’s best interests could favor a modification of custody arrangements. As the dissent again correctly states, the court must also examine any potential effect on the children’s emotional and psychological well-being of “the frequent presence in their home of a man whom they know to have repeatedly *782molested children in the past,” especially in “situations where they are alone with Glynn.”1 Dissent at 783.

However, I do not agree with the dissent that these concerns for the children’s well-being require a remand for further findings after disclosure of Glynn’s past to the children. The superior court, especially in light of the custody investigator’s report and recommendations, crafted a balanced solution by ordering that Juliann give sixty days notice if Glynn plans to move into her home or the two of them plan to marry. This provides the opportunity for the court to review the matter and make any further provisions for the girls’ emotional safety that may become necessary. The court’s opinion further improves upon this solution by requiring that the children be informed that Glynn is not to be alone with them and that they should report any inappropriate behavior. Should Glynn begin to live in the household with the children, this would constitute a change in circumstances that would justify a new inquiry into their best interests. If the children express a preference for living with their father after the disclosure required by the court’s opinion, this shift in preference would also constitute a change of circumstances justifying a new best interests analysis.

In summary, my difference with the court’s opinion is primarily in emphasis. I believe that the court’s analysis should be couched more explicitly in terms of the children’s best interests. My difference with the dissenting opinion is primarily in timing. While Justice Rabinowitz would prefer a second best interests analysis prior to a resolution of the custody dispute, I do not think that this is necessary since a change in the children’s preferences would automatically trigger renewed consideration of their best interests. For these reasons, I concur in the court’s opinion.

. X also agree with the dissent that the issue before the court is not Glynn’s status as a treated child molester, but the nexus between his status or conduct and the children's well-being. Dissent at 782-83. The trial court understood this nexus and took it into account.