Moore v. Moore , 349 P.3d 1076 ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
BRANDY MOORE, )
) Supreme Court No. S-15712
Appellant, )
) Superior Court No. 3AN-13-06985 CI
v. )
) OPINION
JEREMY MOORE, )
) No. 7013 – May 29, 2015
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: Laurence Blakely, Mendel & Associates, Inc.,
Anchorage, for Appellant. Notice of nonparticipation filed
by Cameron Compton, Law Offices of Dan Allan &
Associates, Anchorage, for Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Brandy and Jeremy Moore have one child, a ten-year-old daughter. When
Brandy and Jeremy divorced in 2014, the superior court granted sole legal and primary
physical custody of the child to Brandy and awarded Jeremy unrestricted visitation,
including visitation to foreign countries. Jeremy proposed taking the child to Micronesia
during his visitation period because he is now in a relationship with a Micronesian
woman he met while he was stationed there with the Army. Brandy asked the superior
court to limit Jeremy’s international visitation to countries that have ratified the Hague
Convention on the Civil Aspects of International Child Abduction. The superior court
denied Brandy’s motion, and she now appeals, arguing that the superior court abused its
discretion by allowing unrestricted international visitation. She worries that if Jeremy
absconds with the child to a non-signatory country, the child will then be beyond the
jurisdiction of the Alaska court to enforce the custody order. But because the superior
court made an express finding that Jeremy’s conduct raised no concerns about the safety
and return of the child, we affirm. Although the Hague Convention is one factor that
courts can look to in determining whether international visitation is appropriate when
there are concerns about the safety and return of a child, it is simply one factor among
many and is not dispositive.
II. FACTS AND PROCEEDINGS
A. Facts
Brandy and Jeremy married in 2003 and have one daughter, born in 2004.
Jeremy was in the military while the parties were married and was deployed to Iraq in
2004, Afghanistan in 2007-08, and Micronesia in 2012-13. In 2014 Jeremy was told that
he was being involuntarily separated from the Army following an investigation in which
the Army found Jeremy guilty of having an inappropriate relationship in Micronesia with
a woman who was not his wife.
The parties separated in May 2013 and divorced in July 2014. Brandy
alleges that since their separation, Jeremy has exercised only limited visitation with the
child. She reports that he had seven visits with the child from the time of the parties’
separation until their divorce trial over a year later, only three of which were overnight.
She alleged at trial that in the past Jeremy has gone up to two months without requesting
visitation. Brandy has been the primary caregiver since their daughter was born.
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B. Proceedings
A trial was held in part to determine Jeremy’s visitation rights. The parties
agreed that Brandy would have sole legal custody and primary physical custody, and that
Jeremy would have reasonable visitation including part of summer break.1 Brandy
requested a graduated summer visitation schedule, with Jeremy progressing to have
visitation for most of the child’s summer break by 2016. Jeremy requested that during
his custodial time with the child he have “the option to take the child out of the country,”
in particular to Micronesia.
Brandy testified that she did not want the child to travel to Micronesia with
Jeremy because she thought she would have no legal recourse if Jeremy attempted to
keep their child there, citing the fact that Micronesia is not a signatory to the Hague
Convention on the Civil Aspects of International Child Abduction (Hague Convention).
The Hague Convention is a multilateral treaty that “provides for a civil remedy to return
a child to his or her ‘habitual residence’ after unlawful abduction or wrongful retention
in a foreign nation.”2 Brandy testified that she was hesitant to let their daughter travel
abroad with Jeremy but that she would permit the child to visit foreign countries that had
ratified the Hague Convention. Brandy asserted that legal protection under the Hague
Convention was necessary because Jeremy had a demonstrated disregard for the law
based on his Army infractions.
1
Jeremy testified that he intended to find work in the construction industry,
which would require him to move every six to nine months. He acknowledged that, as
a result, Brandy would be better able to provide the child with stability.
2
Abouzahr v. Matera-Abouzahr, 824 A.2d 268, 279 (N.J. Super. App. Div.
2003); see 22 U.S.C. §§ 9001-9141 (2012) (establishing procedures for implementing
the Hague Convention in the United States).
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Jeremy countered that Brandy’s claims regarding the Hague Convention
were pretext for the fact that she did not want him to take their daughter out of the
country because she was resentful of his relationship with a Micronesian woman. He
argued that Brandy “impermissibly influenced” the child by convincing her that he left
because he “chose [the woman] over the child.” Jeremy also asserted that Brandy was
harassing him and refusing to facilitate and encourage his relationship with the child, and
that Brandy’s “behavior and mental state have deteriorated.” He alleged that Brandy was
stalking him by driving by his residence and forcing her way into his house; contacting
his Army chain of command and making false claims against him; and yelling,
threatening, and throwing items at Jeremy in front of the child. Jeremy argued that he
had sparse contact with the child because he was “scared of Brandy” and was worried
that Brandy would again levy false claims against him with his Army chain of command.
At the time of trial Jeremy was awaiting his discharge from the Army and
looking for civilian work both in the United States and abroad. He argued that he wanted
their daughter to be able to visit him wherever he resides and that it is in her best interest
“to be able to visit different cultures.”
Superior Court Judge Gregory Miller issued a decision in July 2014
granting Brandy sole legal custody and primary physical custody. The superior court
ordered that “[t]here shall be no restriction on where Jeremy may travel with the child
during his visitation with the child. Jeremy may travel out of the country including, but
not limited to Micronesia. There is no restriction that Jeremy may not travel with the
child to only Hague Convention countries.” The superior court granted visitation to
Jeremy for parts of the summer of 2014 and every other weekend if he remained in
Alaska during the school year. The court granted Jeremy summer visitation for five full
weeks beginning in 2015 and continuing every summer thereafter. It also awarded
visitation during winter break in odd numbered years and spring break in even numbered
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years. At the end of the decision, under the heading “Findings of Fact and Conclusions
of Law,” the superior court noted that “[t]he child custody and visitation is in the best
interest of the child.”
Earlier, at the end of the trial in June, the superior court had provided more
detail about its decision. The court discussed each of the statutory best interest factors
as they relate to custody and visitation in this case.3 It then rejected Brandy’s request to
limit foreign travel. The court acknowledged Brandy’s desire to avoid “plac[ing the
child] in any situation where [Jeremy] might take her and keep her and not return her,”
but concluded that it had “seen no evidence” and “heard no testimony that [Jeremy] has
that intention or desire.” The superior court said that an example of that intention or
desire might be present if Jeremy “had a job offer in Micronesia, if he proposed to the
person in Micronesia and they were planning to live over there,” or if similar
circumstances existed, but that it saw none of that here. The superior court noted that
travel is broadening and enriching for children and stated, “I don’t care if it’s a Hague
Convention country or not. [Travel] is a good thing, in my mind. There are exceptions
to that, of course. But in general terms, that’s what I’m finding.”
Brandy filed a motion for reconsideration at the end of July 2014. She
argued that the superior court “failed to consider [her] arguments regarding the
significance of the Hague Convention and the prevention of parental child abductions
when it expressly granted Jeremy the power to travel to a non-Hague country with the
minor child.” Brandy reiterated her concern that “[i]f Jeremy travels to Micronesia, as
he wishes, the child is beyond the jurisdiction of this Court and the United States to
enforce a child custody order” and argued that “[s]hould Jeremy decide to not return [the
child], this Court has provided him with the means to do so.” Finally, Brandy asserted
3
See AS 25.24.150(c).
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that the superior court’s order “has overlooked the material fact that Jeremy’s grant of
unfettered travel to non-Hague Convention countries with [the child] does not comport
with the letter and the spirit of Alaska’s child custody laws.”
Jeremy opposed the motion for reconsideration regarding international
travel and again argued that Brandy was using the fact that Micronesia is not a Hague
Convention signatory “as pretext to prohibit visitation where the ‘other woman’ lives.”
The superior court issued a short order in September 2014 denying
Brandy’s motion for reconsideration “as to travel restrictions.” Brandy appeals, arguing
that the trial court’s award of unrestricted international travel was an abuse of discretion,
asserting that “trial courts must consider, inter alia, a foreign country’s Hague
Convention signatory status in determining whether it is in the best interest of the child
to allow [foreign] visitation” and that “unrestricted international travel is not in [the
child’s] best interest,” in particular. She requests that this court “reverse the trial court’s
decision on the subject of international travel and remand with directions to issue an
order allowing visitation to occur in Hague Convention signatories only and require the
posting of security prior to travel.” Jeremy did not submit a brief on appeal.
III. STANDARD OF REVIEW
“The superior court has broad discretion in its determinations of child
custody. We will not set aside the superior court’s child custody determination unless
its factual findings are clearly erroneous or it abused its discretion.”4 A factual finding
is “clearly erroneous when our review of the entire record leaves us ‘with a definite and
firm conviction that a mistake has been made.’ ”5 “The trial court’s factual findings
4
Limeres v. Limeres, 320 P.3d 291, 295-96 (Alaska 2014) (footnote omitted)
(citing Cusack v. Cusack, 202 P.3d 1156, 1158 (Alaska 2009)).
5
Millette v. Millette, 177 P.3d 258, 261 (Alaska 2008) (quoting Dingeman
(continued...)
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enjoy particular deference when they are based ‘primarily on oral testimony, because the
trial court, not this court, judges the credibility of witnesses and weighs conflicting
evidence.’ ”6 There is an abuse of discretion if the superior court “considered improper
factors in making its custody determination, failed to consider statutorily mandated
factors, or assigned disproportionate weight to particular factors while ignoring others.”7
This court will not overturn a trial court’s discretionary ruling unless “the reasons for the
exercise of discretion are clearly untenable or unreasonable.”8
IV. DISCUSSION
In determining whether to limit foreign visitation, the trial court may look
to a number of factors, including whether proposed countries of visitation are Hague
Convention signatories. But this factor is not dispositive given the broad discretion
accorded to trial courts in custody determinations. Because the superior court considered
the risks of and reasons for international visitation here and found that they posed no
threat to the safety and return of the child, we find no abuse of discretion.
5
(...continued)
v. Dingeman, 865 P.2d 94, 96 (Alaska 1993)).
6
Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011) (quoting
Josephine B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 174
P.3d 217, 222 (Alaska 2007)).
7
Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) (quoting Siekawitch
v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
8
Burke v. Maka, 296 P.3d 976, 980 (Alaska 2013) (quoting Lewis v. State,
469 P.2d 689, 695 (Alaska 1970)).
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A. Trial Courts May Look To A Number Of Factors, None Of Which Are
Dispositive, In Determining Whether To Limit International
Visitation.
Alaska Statute 25.24.150(c) requires courts to “determine custody in
accordance with the best interests of the child under AS 25.20.060-25.20.130.” The
statute sets out nine enumerated factors for trial courts to consider when making a
discretionary best interest determination toward apportioning custody.9 Although
Brandy does not seek review of “an ‘award’ or ‘determination’ of custody as used in the
Alaska Statutes, and therefore the explicit statutory best interests factors contained in
9
The factors that AS 25.24.150(c) requires courts to consider when making
a custody determination in the best interest of a child include:
(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 if the child is of sufficient age and
capacity to form a 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 willingness and ability of each parent to facilitate and
encourage a close and continuing relationship between the
other parent and the child, . . . ;
....
(9) other factors that the court considers pertinent.
The statute also discusses evidence of domestic violence and substance abuse (factors
(7) and (8), respectively), which were not a focus at trial here.
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AS 25.24.150(c) do not apply,”10 we have recognized that the superior court is
“nonetheless required to account for [the child’s] best interests” when considering issues
regarding the permissibility of international travel and visitation.11
Brandy argues that the superior court abused its discretion by allowing
unrestricted international visitation because the proposed country of travel, Micronesia,
is not a signatory to the Hague Convention.12 A trial court abuses its discretion if, among
other things, it “consider[s] improper factors in making its custody determination” or
“fail[s] to consider statutorily mandated factors.”13 Alaska law does not explicitly
prohibit child custody visitation in non-Hague Convention signatory nations or otherwise
restrict international travel as part of custody visitation, and there are no specific
statutorily mandated factors for a trial court to consider with regard to foreign visitation.
10
Patrawke v. Liebes, 285 P.3d 268, 271 (Alaska 2012) (citation omitted).
11
See id. at 271-72 (holding it was an abuse of discretion for the superior
court to deny a father’s request to secure a passport for his child without any contrary
reason).
12
There are 93 Hague Convention signatory countries out of 195 countries
worldwide. Status table, H AGUE C ONFERENCE ON PRIVATE INT ’L LAW ,
http://www.hcch.net/index_en.php?act=conventions.status&cid=24 (last visited May 22,
2015). AS 25.30.400 provides that “a court of this state may enforce an order for the
return of a child made under the Hague Convention on the Civil Aspects of International
Child Abduction as if the order were a child custody determination.” Many parents have
filed suit under the International Child Abduction Remedies Act, the U.S. law
implementing the Hague Convention, see 22 U.S.C. § 9001 et seq. (2012), to have a
child returned after the other parent took and kept a child outside his or her country of
habitual residence. See, e.g., Abbot v. Abbot, 560 U.S. 1 (2010); Karpenko v. Leendertz,
619 F.3d 259 (3d Cir. 2010); Toren v. Toren, 191 F.3d 23 (1st Cir. 1999); Shalit v.
Coppe, 182 F.3d 1124 (9th Cir. 1999); Friedrich v. Friedrich, 78 F.3d 1060 (6th Cir.
1996); Courdin v. Courdin, 375 S.W.3d 657 (Ark. App. 2010).
13
Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) (quoting Siekawitch
v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
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Brandy does not cite any decision from this court or any other that has held
that a country’s Hague Convention signatory status provides a definitive ground for
determining whether to allow international visitation in the best interest of the child.
Indeed, courts in other jurisdictions have declined to apply a bright-line rule to limit
foreign visitation based on the Hague Convention signatory status of a proposed country
of travel.14 A bright-line rule restricting international visitation to Hague Convention
signatory nations would “mistakenly change the focus from the parent to whether [the
proposed country of travel’s] laws, policies, religion or values conflict with our own.”15
Other courts that have considered international visitation issues broadly,
and the Hague Convention specifically, have generally done so in light of the traveling
parent’s risk of and assurances against non-return of the child, and the reason for the
child’s travel, such as family ties, heritage, cultural programming, or similar reasons.16
14
See, e.g., In re Rix, 20 A.3d 326, 329 (N.H. 2011) (“[W]hile a foreign
country’s Hague Convention signatory status should be a significant factor for the trial
court to consider, it cannot, standing alone, be determinative of whether it is in the best
interests of a child to travel with a parent outside the country.”); MacKinnon v.
MacKinnon, 922 A.2d 1252, 1260 (N.J. 2007) (“Although a foreign nation’s Hague
Convention status is a pertinent factor [in considering the international removal of a
child], it is by no means dispositive.”); Abouzahr v. Matera-Abouzahr, 824 A.2d 268,
281 (N.J. Super. App. Div. 2003) (declining “to adopt a bright-line rule prohibiting
out-of-country visitation by a parent whose country has not adopted the Hague
Convention”); Long v. Ardestani, 624 N.W.2d 405, 417 (Wis. App. 2001) (observing
that no cases “even hint” at a rule that provides “as a matter of law that a parent . . . may
not take a child to a country that is not a signatory to the Hague Convention if the other
parent objects”).
15
Abouzahr, 824 A.2d at 281-82.
16
See, e.g., MacKinnon, 922 A.2d at 1259-60 (addressing “concerns
implicated by international removal, such as Hague Convention membership, cultural
and social concerns, feasibility of visitation, and enforceability of parental rights”).
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In Abouzahr v. Matera-Abouzahr, the New Jersey Superior Court, Appellate Division,
articulated a sensible standard for considering a country’s Hague Convention signatory
status in conjunction with other factors:
The danger of retention of a child in a country where
prospects of retrieving the child and extraditing the wrongful
parent are difficult, if not impossible, is a major factor for a
court to weigh in ruling upon an application to permit or to
restrain out-of-country visitation. But it is not the only factor.
In addition to the laws, practices and policies of the foreign
nation, a court may consider, among other things, the
domicile and roots of the parent seeking such visitation, the
reason for the visit, the safety and security of the child, the
age and attitude of the child to the visit, the relationship
between the parents, the propriety and practicality of a bond
or other security and the character and integrity of the parent
seeking out-of-country visitation as gleaned from past
comments and conduct.[17]
Courts often examine the risk that a traveling parent might take a child
outside the United States and not return the child.18 “[A] number of cases in American
17
824 A.2d 268, 282 (N.J. Super. App. Div. 2003).
18
See, e.g., Kamal v. Imroz, 759 N.W.2d 914, 919 (Neb. 2009) (holding that
a trial court did not abuse its discretion in restricting a child’s travel out of the country
because father once took the child out of state without informing the mother); Rix, 20
A.3d at 329-30 (holding that a trial court did not abuse its discretion by permitting a
father to vacation with his child in India, a non-Hague Convention country, when the
mother’s evidence gave no indication the father intended to flee with the child and not
return); Puran v. Murray, 829 N.Y.S.2d 227, 228 (N.Y. App. Div. 2007) (holding that
a family court providently exercised discretion to permit a father to take his child to his
home country of Guyana when the mother offered no proof that the father threatened to
abscond with the child).
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jurisdictions recognize the propriety of [limiting] visitation when the noncustodial parent
is shown to pose a risk of abduction.”19
Courts also examine whether there are available legal structures that may
provide assurances against non-return, such as general extradition treaties or having the
traveling parent post a security bond. Some courts have required a traveling parent to
post a security bond prior to travel,20 but doing so is discretionary based on the parents’
circumstances.21 In Patrawke v. Liebes, we did not require a father to post a security
bond in order for him to obtain a passport to travel with his child.22 The mother “failed
to offer a compelling reason why it would not be in [the child’s] best interests to obtain
a passport.”23
19
Lee v. Lee, 49 So. 3d 211, 215 (Ala. Civ. App. 2010) (citing Shady v. Shady,
858 N.E.2d 128, 143 (Ind. App. 2006); Moon v. Moon, 589 S.E.2d 76, 79-80 (Ga.
2003)); see also Monette v. Hoff, 958 P.2d 434, 436 (Alaska 1998) (limiting visitation
in part based on the guardian ad litem’s testimony that “[the mother’s] history of
secreting away her daughter from [the daughter’s father], as well as her conduct of not
telling [the father] exactly where the child was here in Alaska for a period of time does
cause concern that she presents a risk of abduction of the child”).
20
See, e.g., Long v. Ardestani, 624 N.W.2d 405, 411 (Wis. App. 2001)
(imposing a bond through a pre-existing custody agreement).
21
See Abouzahr, 824 A.2d at 282 (mentioning “the propriety and practicality
of a bond or other security” as a factor “a court may consider, among other things” but
declining to impose restraints on international visitation because “[n]o testimony
indicates that [the father] disrespects the United States, its culture, customs, laws or
values”).
22
285 P.3d 268 (Alaska 2012).
23
Id. at 272.
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Extradition treaties can also provide assurances against non-return.
Micronesia, the proposed country of foreign visitation, does have an extradition treaty
with the United States.24 That extradition treaty could be used to enforce the
International Parental Kidnaping Crime Act (IPKCA), which Congress passed in 1993
to supplement the Hague Convention when its civil remedies are inapplicable or
ineffective.25 IPKCA makes it a federal offense for a parent to wrongfully remove a
child from the United States, punishable by up to three years imprisonment.26 Thus,
Brandy would not be without recourse, particularly since Jeremy offered to sign a
document consenting to the application of the laws of the United States during out-of­
country travel.27
24
Agreement on Extradition, Mutual Assistance in Law Enforcement Matters
and Penal Sanctions Concluded Pursuant to Section 175 of The Amended Compact of
Free Association, U.S.-Micr., tit. 2, art. 1, May 14, 2003, T.I.A.S. 04-625.4.
25
See Pub. L. 103-173 § 2(a), 107 Stat. 1998 (codified as amended at 18
U.S.C. § 1204 (2012)); Abouzahr, 824 A.2d at 280 (discussing IPKCA).
26
18 U.S.C. § 1204(a); see also United States v. Amer, 110 F.3d 873, 877-79
(2d Cir. 1997) (upholding IPKCA against a constitutional challenge).
27
Like a country’s Hague Convention signatory status, whether a proposed
country of travel has an extradition treaty with the United States is not dispositive in
deciding whether to limit foreign visitation. See MacKinnon v. MacKinnon, 922 A.2d
1252, 1262 (N.J. 2007) (holding only that “trial courts must consider the question of the
enforceability of visitation and other court orders in the international removal context”
(emphasis added)); Abouzahr 824 A.2d at 281 (declining to adopt a “bright-line rule
prohibiting out-of-country visitation by a parent whose country has not . . . executed an
extradition treaty with the United States”). The MacKinnon court sensibly held that “[i]n
future proceedings, when a parent raises concerns regarding enforceability, the trial court
should pursue alternative solutions to such problems by, for example, encouraging the
parties to obtain appropriate orders in the foreign nations or enter into contractual
agreements, enforceable overseas, governing visitation arrangements.” 922 A.2d
(continued...)
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Abouzahr also advises courts to look to “the reason for the visit.”28 Brandy
asserts that “[c]ourts generally find that international travel to a non-signatory is [only]
in the child’s best interest if there is a particular reason for this travel, for instance, when
relatives live abroad, when one parent is from the foreign country, or when the travel is
sanctioned by a school language program in which the child is enrolled.” Although it
is true that the cases Brandy cites29 articulate some positive reason for travel, they do not
imply that the lack of any particularized justification beyond the broadly enriching
benefits of travel should act as a negative restriction.
The superior court did not specifically analyze the reasons for the child’s
travel, save to say that travel is generally beneficial.30 Brandy may not agree with the
broad benefits of travel, but the fact that the superior court did not enumerate any
particularized travel justifications does not mean it “failed to consider statutorily
27
(...continued)
at 1260.
28
824 A.2d at 282.
29
See Patrawke v. Liebes, 285 P.3d 268, 270 (Alaska 2012) (allowing a father
to obtain a passport for his child despite the mother’s objection so the child could, among
other things, attend a Japanese Immersion Program through her school); In re Rix, 20
A.3d 326, 329 (N.H. 2011) (allowing visitation to India, a non-signatory country, to see
relatives); Long v. Ardestani, 624 N.W.2d 405, 416 (Wis. App. 2001) (allowing
visitation to Iran, a non-signatory country, because, among other reasons, the father was
from Iran).
30
The superior court noted at the end of trial that travel is broadening and
enriching and stated, “I don’t care if it’s a Hague Convention country or not. [Travel] is
a good thing, in my mind. There are exceptions to that, of course. But in general terms,
that’s what I’m finding.”
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mandated factors”31 or otherwise abused its discretion. As we have previously
suggested, travel is generally beneficial and in a child’s best interests.32
B. The Superior Court Did Not Abuse Its Discretion By Not Limiting
International Visitation Because It Found That Jeremy Posed No
Threat To The Child’s Safety And Return.
We have held that “[p]rovisions of a custody award must be supported by
findings of fact demonstrating that the superior court properly considered the best
interests of the child.”33 “The trial court’s factual findings enjoy particular deference
when they are based ‘primarily on oral testimony, because the trial court, not this court,
judges the credibility of witnesses and weighs conflicting evidence.’ ”34 Here, the
superior court stated that it had “seen no evidence” and “heard no testimony that
[Jeremy] has [the] intention or desire” to “take [the child] and keep her and not return
her.” Brandy presented no conflicting evidence to suggest that Jeremy poses a flight risk
with the child; she merely asserted that he may wish to travel abroad for work or to see
his Micronesian girlfriend. But those possibilities do not indicate any intent on Jeremy’s
31
Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) (quoting Siekawitch
v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
32
See Patrawke, 285 P.3d at 272 (suggesting that travel is beneficial by
holding that because a child “has significant opportunities to travel abroad, . . . to deny
her a passport, without any contrary reason given by [the mother], assuredly would harm
[the child’s] best interests”).
33
Green v. Parks, 338 P.3d 312, 315 (Alaska 2014) (alteration in original)
(quoting Mariscal v. Watkins, 914 P.2d 219, 222 (Alaska 1996)).
34
Sheffield v. Sheffield, 265 P.3d 332, 335 (Alaska 2011) (quoting
Josephine B. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 174
P.3d 217, 222 (Alaska 2007)); see also Hanlon v. Hanlon, 871 P.2d 229, 232 (Alaska
1994) (“[A]ssessing witness credibility is a trial-court function, and the court in this case
clearly acted within its discretion by crediting one version of events over another.”).
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part to take and keep the child abroad in contravention of the custody order and thus the
superior court’s factual findings are not clearly erroneous. We do not “reweigh the
evidence when the record provides clear support for the trial court’s ruling.”35
We next turn to whether the superior court abused its discretion by not
limiting foreign visitation. The abuse of discretion standard asks “whether the reasons
for the exercise of discretion are clearly untenable or unreasonable”36 and fall outside the
boundaries of reasonable responses. Here, the superior court acknowledged and weighed
the risks that Jeremy’s foreign travel with the child might entail, and thus its visitation
order is not facially unreasonable.
In particular, Brandy’s subjective fear that Jeremy might abscond with the
child is not, standing alone, enough to suggest that the superior court’s order not limiting
foreign visitation was unreasonable or otherwise an abuse of discretion. Other courts
that have considered whether one parent’s fear that the other poses a flight risk should
factor into a trial court’s custody determination have concluded that such fears should
not be credited unless they are well-founded.37 The Abouzahr court held that even if one
parent’s fear of non-return is genuine, “fear alone is not enough to deprive a non­
custodial parent” of international visitation where “[n]o testimony indicates that [the
35
Graham R. v. Jane S., 334 P.3d 688, 696 (Alaska 2014) (quoting Kelly v.
Joseph, 46 P.3d 1014, 1019 (Alaska 2002)).
36
Burke v. Maka, 296 P.3d 976, 980 (Alaska 2013) (quoting Lewis v. State,
469 P.2d 689, 695 (Alaska 1970)).
37
See, e.g., Keita v. Keita, 823 N.W.2d 726, 732 (N.D. 2012); MacKinnon v.
MacKinnon, 922 A.2d 1252, 1256 (N.J. 2007); Abouzahr v. Matera-Abouzahr, 824 A.2d
268, 281 (N.J. Super. App. Div. 2003).
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parent] disrespects the United States, its culture, customs, laws or values.”38 In Keita v.
Keita, the North Dakota Supreme Court held that a district court’s finding that a father
was a “flight risk” was clearly erroneous because the record did not “include specific
evidence that [the father] has an intent to abscond or flee with the child.”39 Similarly, in
MacKinnon v. MacKinnon, the New Jersey Supreme Court upheld a trial court’s removal
order to Japan based in part on the trial court’s finding that the mother’s past conduct
provided “no justifiable basis for a genuine fear that [she] will not return [the child] or
refuse visitation.”40 “Observing that [the mother] obeyed all previous court orders, the
[trial] court considered the possibility that [the mother] would abscond with [the child]
‘an acceptable risk under the circumstances,’ ” which the New Jersey Supreme Court
held did not constitute an abuse of discretion.41
Here, Brandy attempts to substantiate her fear that Jeremy may abscond
with the child by arguing that Jeremy “has no demonstrated incentive to return to the
United States” because he has no job or strong ties here and that he “has also
demonstrated a disdain for legal rules,” based on his Army infractions. Though the
Army found Jeremy guilty of having an inappropriate relationship in Micronesia with a
woman who was not his wife, this prior bad act has little bearing on Jeremy’s propensity
38
Abouzahr, 824 A.2d at 281, 282.
39
823 N.W.2d 726, 732 (N.D. 2012) (noting that the trial court’s factual
finding was clearly erroneous because it “appear[ed] to be based on ‘uncertainty’ about
[the father’s] immigration status and extended family, in addition to [the mother’s
fears]”).
40
922 A.2d 1252, 1256, 1262 (N.J. 2007) (noting that although the trial court
found the father’s fear to be “sincere,” it ultimately concluded that his fear that he would
lose his daughter was “unfounded”).
41
Id. at 1256.
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to disregard the law with regard to the child’s custody. His relationship with a woman
in Micronesia might provide an incentive for him to go there, perhaps long-term, but it
does not suggest that Jeremy might want to abscond with the child and keep her in
Micronesia permanently.
Finally, the superior court did not abuse its discretion by “fail[ing] to
consider statutorily mandated factors”42 regarding foreign visitation because there is no
Alaska law that addresses international visitation. And the superior court did not
“assign[] disproportionate weight to particular factors while ignoring others”43 because
there are no past Alaska decisions to inform the weight that trial courts should give to
“other factors the court considers pertinent”44 regarding whether foreign visitation is in
a child’s best interest. The superior court’s on-the-record discussion with the parties at
the end of the trial demonstrates that it considered the key factors underlying the
importance of the Hague Convention and other courts’ reasoning as to whether to allow
international visitation: the risks of and reasons for that travel. Thus, the superior court
did not “consider[] improper factors in making its custody determination.”45
V. CONCLUSION
Because the superior court found that Jeremy’s conduct raised no concerns
about the safety and return of the child, a finding which is not clearly erroneous, we
AFFIRM, and hold that the superior court did not abuse its discretion by not limiting
international visitation to Hague Convention signatory nations.
42
Frackman v. Enzor, 327 P.3d 878, 882 (Alaska 2014) (quoting Siekawitch
v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998)).
43
Id. (quoting Siekawitch, 956 P.2d at 449).
44
AS 25.24.150(c)(9).
45
Frackman, 327 P.3d at 882 (quoting Siekawitch, 956 P.2d at 449).
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