Mary A. CRAIG, Appellant, v. Casey McBRIDE, Appellee.
No. 5358.
Supreme Court of Alaska.
Jan. 29, 1982.
303
A. Lee Petersen, A. Lee Petersen, Inc., Anchorage, for appellee.
Deborah Holbrook, Juneau, guardian ad litem.
Before RABINOWITZ, C. J., and CONNOR, BURKE, MATTHEWS and COMPTON, JJ.
OPINION
COMPTON, Justice.
This is a custody dispute. The mother and the guardian ad litem1 appeal from the decision of the superior court which granted primary custody of Aurora Craig-McBride,
We need only briefly set forth the facts of this case.2 The claimants, Mary Craig Bird and Casey McBride, are the natural parents of Aurora. The parties lived together in Skagway, Alaska for much of the period between Spring 1975 and January 1977. Aurora, now five and one-half years old, was born March 7, 1976.
At the time of trial, the mother resided in Juneau with her husband, whom she married in March 1978, and her daughter Alim, Aurora‘s older half sister. The father continued to reside in Skagway, where he shared a house with two other single men. By all accounts, he is a respected community leader. The court, the guardian ad litem, and the child care specialist agreed that either parent was capable of giving Aurora adequate care.
Much of the evidence concerned the relative instability of the parties. Both had parented other children out of wedlock. Both had been involved in numerous intimate relationships. The principal distinguishing feature in terms of stability was that the father had worked diligently to establish a settled home in Skagway, while the mother frequently moved from city to city without establishing a stable home environment.
The court properly sought to identify the best interests of Aurora by reference to the factors set forth in
Custody disputes are among the most difficult matters which confront a trial judge. As a consequence, this court has often noted that trial courts enjoy wide discretion in resolving custody disputes. Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977); Horton v. Horton, 519 P.2d 1131 (Alaska 1974). Our role upon review is restricted. This court determines only if the trial court abused its discretion by considering improper factors in making its determination, by failing to consider statutorily-mandated factors, or by assigning too great a weight to some factors while ignoring others. Johnson v. Johnson, 564 P.2d 71, 74 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S.Ct. 896, 54 L.Ed.2d 800 (1978); Horton v. Horton, 519 P.2d 1131 (Alaska 1977); see Deivert v. Oseira, 628 P.2d 575 (Alaska 1981).
It is apparent that the deciding factor in this case was the court‘s assessment of the relative stability of the parties. For that reason, the principal question raised on appeal is whether the court‘s determination that the father offered a more stable environment reflected only the consideration of permissible factors.
Concluding that the father hаd “better disciplined management of life‘s affairs,” the court contrasted the instability which the mother had exhibited:
I am concerned about the history of the mother with respect to the number of different living situations she has moved into in recent years, and the lack of stability in terms of fixing a home and a place the child might know as a stable home. Although it is true that at the time of trial the [mоther] appeared to be in a satisfactory marriage relationship, her husband, Tracy Bird, having testified, nevertheless the extent to which she has moved about, borne children out of wedlock and demonstrated an instability in terms of place or relationship makes award of custody to her less desirable than to the father at this time. [Emphasis added.]
The relevant portions of the Findings of Fact, drafted by the father‘s counsel and signed by the court, roughly parallel these statements:
In contrast, the mother, though recently married, has shown an unstable work history and a life style characterized by frequent moves and few ties. The child which is the subject of this action is the third child born to the [mother] out of wedlock. Based upon the extent to which she has moved about, borne children out of wedlock, and demonstrated instability in terms of place or relationship an award of custody to her is less desirable than to the father. [Emphasis added.]
We conclude that the court‘s reference to the fact that the mother had borne children out of wedlock and demonstrated an instability in terms of relationships was improper. At best, such cоmments subjectively tainted the court‘s decision; at worst, they suggest that the court interjected impermissible factors in the course of its deliberations. See Carle v. Carle, 503 P.2d 1050 (Alaska 1972).5
Viewed in context, it is evident that the court was more generally concerned with the respective stability of the claimants, not their sexual conduct. Clearly, stability is a proper consideration.6 Thus, the fact that the fаther had lived in Skagway a number of years, obtaining the broad respect of the community, was undeniably relevant. In the same vein, the fact that the mother had only recently attempted to create a stable home environment was also entitled to consideration. Indeed, we do not preclude the court from determining on remand that factors such as these if the evidence shows that they still exist and are still to be given the same relative weight, are dispositive.7
Yet, we cannot countenance the court‘s reference to the mother‘s sexual conduct. Whether intended as condemnatory of the mother‘s sexual conduct or only as indicative of the mother‘s unstable life style, our concern is that the mother‘s bearing of children out of wedlock or her instability in terms of relationships should be determinative only were such conduct to adversely affect the child or the mother‘s parenting abilities. As we stated in Britt v. Britt, “evidence of the lifestyle, habits, or character of a custody claimant is relevant only to the extent that it may be shown to affect the person‘s relationship to the child.” 567 P.2d 308, 311 (Alaska 1977); see Bonjour v. Bonjour, 566 P.2d at 669; Horutz v. Horutz, 560 P.2d at 401. The record in thе present case offers scant evidence of any adverse effect resulting from the mother‘s conduct.8
The present case cogently illustrates that a court‘s reference to such factors as a parent‘s sexual conduct oftentimes intimates the court‘s denigration of a parent‘s chosen life style. To avoid even the suggestion that a custody awаrd stems from a life style conflict between a trial judge and a parent, we reiterate that trial courts must scrupulously avoid reference to such factors absent evidence of an adverse effect to the parent-child relationship.
A second issue raised on appeal is whether it was error for the trial court to separate Aurora from her half sistеr Alim without articulating “compelling” or “necessary” reasons why such a separation was in Aurora‘s best interest. We address the governing legal principles in order to offer guidance to the trial court.
This court has often embraced the proposition that it is desirable to not separate siblings in the course of custody disputes. Nichols v. Nichols, 516 P.2d 732, 736 (Alaska 1973); Rhodes v. Rhodes, 370 P.2d 902, 903 (Alaska 1962); see Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).9 Divorces and custody disputes are traumаtic enough without needlessly severing sibling relationships.
Yet our concern for maintaining sibling relationships has not been transformed into a rigid rule to govern all situations. It is simply inappropriate to resolve custody disputes by application of rigid legal maxims.10 In Nichols v. Nichols we articulated a more flexible approach:
[C]onsideration should be given to the desirability of not separating the children unless their welfare clearly requires such a сourse. As in other facets of the difficult problems confronting a trial judge in custody matters, there is no hard and fast rule. The question of whether or not it is necessary to separate children must depend upon the facts and circumstances of each particular case.
516 P.2d at 736 [footnote omitted.]
Contrary to the mother‘s assertion, the Nichols standard does not require a showing of “necessary” or “compelling” reasons in order for а trial court to separate siblings. Rather, we prefer to accord trial judges the necessary discretion to best respond to the myriad of factual settings which will invariably arise in custody matters, at all times cognizant that it is the best interests of the child which is the paramount consideration. Though maintaining sibling relationships will typically be in the best interests of the child, cases will undoubtedly аrise where the best interests of the child dictate otherwise.11
The jurisdictional posture of the present case exemplifies why it would be inappropriate to accord undue weight to the desirability of keeping siblings together. Alim, Aurora‘s older half sister, is not before the court. Were our policy in regard to keeping siblings together to override all other indications of the child‘s best interest, a parent with a child who is either a step- or half- sibling of the child in dispute would invariably obtain custody. Such a result does not comport with the fundamental premise that trial courts enjoy wide discretion in ascertaining, by reference to
A final matter merits discussion. An inordinate amount of time has passed—more than two years—since the trial court announcеd its decision to award custody to the father.12 On remand, the trial court must again assess whether an award of custody to either parent would, inter alia, better provide continuity and stability for Aurora.
In conclusion, we cannot affirm the decree in this case because the court improperly made reference to factors which should not have influenced the custody determination. We therefore reverse and remand for further proceedings not inconsistent with the standards set forth in this opinion.
REVERSED and REMANDED.
RABINOWITZ, Chief Justice, concurring.
I agree with the majority‘s ruling that the superior court‘s custody award cannot stand because the trial court impermissibly considered the mother‘s sexual liaisons, notwithstanding the dearth of evidence demonstrating that this conduct had a detrimental imрact on the child or on the parent-child relationship. I cannot emphasize too strongly that trial judges must guard against injecting socialized, stereotyped assumptions and misconceptions into custody decisions.1 Nevertheless, I am compelled to file this separate opinion because I believe the majority has fallen prey to the same kinds of sterеotyped views for which the superior court‘s custody award is being reversed.
In sum, I agree with the majority‘s disposition of this appeal and with the reasoning therefor; I do not, however, agree that a parent‘s nomadic life should be considered relevant in a custody dispute absent evidence that this way of life has a demonstrable impact on the child.
BURKE, Justice, with whom CONNOR, Justice, joins, dissenting.
I dissent.
The majority concedes that, viewed in context, the trial court was concerned with the respective stability of the parties, not their sexual conduct. I agree with that conclusion and see no reason to reverse the court‘s custody determination simply because of Judge Stewart‘s reference to what the majority deems an “impermissible factor.” I would affirm the judgment of the superior court.
Notes
The court shall determine custоdy in accordance with the best interests of the child. Neither parent is entitled to preference as a matter of right in awarding custody of the child. In determining the best interests of the child the court shall consider all relevant factors including:
- (1) the physical, emotional, mental, religious and social needs of the child;
- (2) the capability and desire of each parent to meet these needs;
- (3) the child‘s preference;
- (4) the love and affection existing between the child and each parent;
- (5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
- (6) the desire and ability of each parent to allow an open and loving frequent relationship between the child and his other parent.
Of course, past events may at times illuminate a parent‘s present status. In the present case, the mother had only been married for one year at thе time of trial. Notwithstanding that her marriage had a profound stabilizing influence, we do not think the trial court erred in considering that prior to her marriage the mother had failed to establish a stable home or sense of community. It follows, though, that the stability of the mother‘s home during the pendency of this appeal will undoubtedly affect whether the instability noted at the original proceeding remains relevant in assessing her