474 P.3d 651
Alaska2020Background
- In 2012 the superior court found by a preponderance of the evidence that Robert had sexually abused N.C.; it awarded Tatiana sole legal and primary physical custody and set benchmarks (psychological evaluation and compliance with treatment) before supervised visitation could begin.
- Robert did not appeal the 2012 custody order and repeatedly sought visitation over the next years; he moved in 2016 and an eight-day evidentiary hearing was held in 2017–2018.
- During the later proceedings Robert repeatedly attempted to relitigate the 2012 sexual-abuse finding; the superior court barred relitigation (it labeled the bar collateral estoppel but the Court of Appeals notes law-of-the-case would have been the proper doctrine).
- After an extended hearing the superior court found Robert had substantially complied with the 2012 benchmarks and concluded supervised visitation was appropriate, but only if a specific, safe implementation plan existed (identifying counselors, supervisors, costs, and payment sources).
- The court declined to order immediate, unconditional visitation, citing the children’s fear and the need to protect their best interests; Robert appealed, arguing (1) he should be allowed to relitigate the abuse finding and (2) he was entitled to an unequivocal visitation order once benchmarks were met.
Issues
| Issue | Plaintiff's Argument (Robert) | Defendant's Argument (Tatiana/Court) | Held |
|---|---|---|---|
| Relitigation of 2012 sexual-abuse finding | Should be allowed to relitigate based on new evidence and alleged trial counsel failures | The 2012 finding is final; relitigation is barred (law of the case/collateral estoppel); fairness and finality favor barring relitigation | Court did not abuse discretion in barring relitigation; law-of-the-case applies (result same despite label) |
| Right to supervised visitation after meeting benchmarks | Meeting 2012 benchmarks entitles him to immediate supervised visitation | Benchmarks do not create an automatic right; court must still determine best interests and require a concrete, safe plan | No automatic entitlement; visitation conditionally granted but requires a specific implementation plan |
| Claim of de facto termination / impossible conditions | Court-imposed conditions create a catch‑22 and effectively terminate parental rights by preventing visitation | Order grants visitation subject to safety details; conditioning on treatment/professionals is appropriate to protect children | Not a de facto termination; conditioning was reasonable and not an abuse of discretion |
| Evidentiary standard for restricting visitation | Denial/limitation of visitation requires clear and convincing evidence | Civil custody determinations use preponderance of the evidence unless statutory/other context requires higher standard | Preponderance is the correct standard here; no clear-and-convincing requirement for this private custody decision |
Key Cases Cited
- Barber v. State, Dep’t of Corr., 393 P.3d 412 (Alaska 2017) (discusses law-of-the-case doctrine and preclusion of issues previously adjudicated in same case)
- Andrea C. v. Marcus K., 355 P.3d 521 (Alaska 2015) (collateral estoppel bars relitigation of factual issues actually litigated and necessarily decided)
- McAlpine v. Pacarro, 262 P.3d 622 (Alaska 2011) (emphasizes finality in custody decisions and discourages continual relitigation)
- State, Commercial Fisheries Entry Comm’n v. Carlson, 270 P.3d 755 (Alaska 2012) (law-of-the-case permits reconsideration only for exceptional circumstances presenting clear error or manifest injustice)
- Nelson v. Jones, 944 P.2d 476 (Alaska 1997) (conditioning visitation on participation in treatment does not constitute termination of parental rights)
- Thompson v. Thompson, 454 P.3d 981 (Alaska 2019) (parents’ custody proposals and related custody determinations are governed by the preponderance standard)