Duffus v. Duffus

RABINOWITZ, Justice,

dissenting.

The standard which governs a motion to alter existing custodial arrangements is the best interests of the child. Long v. Long, 816 P.2d 145, 150 (Alaska 1991). Without any awareness of Glynn’s past conduct or present status, Beth and Michelle are spending significant amounts of time, some of it alone, with a convicted child molester who is not cured and therefore is prohibited by probation order from being alone with any child.1 I do not believe that this situation is in the best interests of the Duffus children.

As the court recognizes, the mother’s involvement with Glynn does not necessarily require that the Duffus girls be removed from her custody. Indeed, “[t]here is no bright line rule against the involvement of any specific category of persons in a household which includes children. In making a custody determination the court considers only ‘facts directly affecting the child’s well-being.’ ” Op. at 780. In my view, the superi- or court could not adequately determine how Glynn’s involvement in. the Duffus children’s fives would affect their well-being until the girls were apprised of the circumstances surrounding his past antisocial conduct and the terms of his current probation order. Accordingly, the best interests of Beth and Michelle cannot be meaningfully evaluated until this extremely relevant information is conveyed to them, and the impact of such disclosure on the two minor children is assessed.

The court’s reliance on S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985), holding that lesbian status has no bearing on a custody decision, to support its conclusion is misplaced. At stake here is more than Glynn’s *783status as a treated child molester.2 The question, rather, given the best interests standard which governs custody determinations, is whether the Duffus children will feel safe and secure in an environment in which Glynn is frequently present, at times without the presence of other adults. If Beth and Michelle — with full awareness of the circumstances — do not psychologically or emotionally feel safe and secure in Glynn’s presence, the home environment is unlikely to be one in which the girls’ well-being will be served. This is true even if Glynn does not pose any actual danger to the children.

This court’s previous cases require a reasonable nexus between the status or conduct in question and the well-being of a child. They do not require that the child be in actual danger, the standard impliedly imposed by the superior court and affirmed by the court’s opinion.3 As we stated in S.N.E.:

When a court determines the best interests of the child under the changed circumstances doctrine, the scope of judicial inquiry is limited to facts directly affecting the child’s well-being. ...
For example, that a mother is living with another man in an adulterous relationship does not justify denying her custody absent any indication of adverse effects on the child. Nor does bearing children out of wedlock or instability in relationships warrant a custody change where the parent’s conduct does not adversely affect the child or the mother’s parenting abilities. Even the mental health of the custodial parent is “relevant only insofar as it has or can be expected to negatively affect the child.”

S.N.E., 699 P.2d at 878 (footnote and citations omitted, emphasis added).

It is reasonable to believe that Beth and Michelle might be adversely affected by the frequent presence in their home of a man whom they know to have repeatedly molested children in the past. Moreover, the children’s emotional and psychological well-being might well be affected in situations where they are alone with Glynn. Since the superi- or court made its determination as to custody before the children were made aware of Glynn’s past conduct and present status, one can only speculate as to the revelation’s effect on the Duffus girls. I thus conclude that the superior court abused its discretion in making what is meant to be a best interests determination before it was in a position to ascertain the impact of disclosure on the children.4

*784Moreover, I believe that the superior court’s mandated consideration of the children’s preference was inadequate, given the lack of information available to Beth and Michelle when they “chose” to live with Ju-liann. Because the children did not know of Glynn’s past or current treatment status, they could not have expressed an informed preference as to custody arrangements. See AS 25.24.150(c)(3); Rooney v. Rooney, 914 P.2d 212,217 (Alaska 1996).

As the superior court recognized and the court’s opinion affirms, the children are “of sufficient age to formulate and express a preference” as to custody arrangements. The superior court was required to consider these preferences. To the extent that they were based on flawed or severely limited information, the stated preferences of Beth and Michelle should not have provided a basis for the custody decision.5

The appropriate time at which to make a determination of the Duffus children’s best interests would be after the passage of a reasonable time following disclosure of Glynn’s past conduct and present condition. Admittedly on the record we do have, the superior court might reasonably conclude that remaining in Juliann’s custody is in the best interests of the children. However, for the reasons discussed in this separate opinion, I believe that the superior court erred in reaching its custody determination based on the evidence before it. Rather, the custody issue should be remanded to the superior court for further findings after disclosure has been made to Beth and Michelle of Glynn’s past conduct and present condition, and a reasonable period has elapsed within which to assess the impact on their well-being of such disclosures.

. As stated in the court's opinion,

Glynn was convicted of molesting several male children over a decade ago.... Glynn is not “cured,” and his probation order prohibits him from being alone with any child.
Glynn is present in Juliann’s home every day after work until the family goes to bed.... He also has spent brief periods of time alone with the children.... Juliann has not told the children of Glynn's past.

*783Op. at 779.

. As Glynn’s probation officer admits, "His sexual urges towards minor males have diminished from the time of his offense, but have not been entirely eliminated. This is consistent with what other therapists have reported, insofar as there is no ‘cure.’"

. As stated in the court's opinion:

The heart of Kenneth’s appeal is his contention that the trial court’s finding that Glynn does not constitute a threat to the physical or emotional well-being of the children was clearly erroneous. While Kenneth's concerns in this regard are understandable, we conclude that the trial court did not err in resolving this issue.
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In the absence of any evidence that Glynn presents a threat to the physical well-being of the children, we cannot form "a definite and firm conviction on the entire record that a mistake has been made” in finding that Glynn does not pose a threat to the physical wellbeing of the children.

Op. at 780-81.

. The superior court's order provides:

If Mr. Glynn is to remain involved with the plaintiff, plaintiff shall, within three months of the date of this order obtain the advice of a counselor or other expert in the field as to how to prepare the children for revelation of Mr. Glynn's past and of the best way to integrate him into the family unit without threat to the children or him.

This provision seems to contemplate the possibility that the revelation of Glynn's condition could potentially have adverse consequences on Beth and Michelle, and seeks to mitigate those consequences. However, the order does not require Juliann to disclose the information, but is simply reactive to the likely possibility that the girls will somehow discover it for themselves. This in itself is problematic. Whatever threat Glynn's condition poses to the children’s emotional and physical well-being could be addressed, at least in part, by Beth and Michelle being made aware that they are not to be alone with Glynn, according to the terms of his probation, and that certain behavior on Glynn’s part should immediately be reported if it occurs. Given that these conditions have not been imposed, I agree with the court’s decision to remand this matter to the superior court for modification of the relevant provision.

. See John P. McCahey, Child Custody & Visitation Law and Practice § 10.08[3] (1993) (“a frequently recurring concern [in assessing the weight given a child's preference] is whether or not a child is able to express an informed, intelligent and sound preference") (emphasis added).