as: 828 P.2d 769)
Court of Alaska.
Ray HARVICK, Appellant,
M. HARVICK, Appellee.
April 3, 1992.
court is vested with broad discretion in dealing with custody
Court reviews custody determinations on abuse of discretion basis.
is within special competency of Supreme Court to independently interpret
wife's right under Indian Child Welfare Act to withdraw relinquishment
of parental rights did not entitle former wife to custody
of child who lived with former husband after rights were
relinquished; rather, trial court should have conducted further proceedings to
modify custody. Indian Child Welfare Act of 1978, § 103(c),
25 U.S.C.A. § 1913(c);
AS 25.24.150(a, c).
general, when divorce decree gives custody to one parent, it
is effective only as between parties to the divorce.
wife's relinquishment of parental rights operated to transfer custody to
former husband as only remaining natural parent and constituted "modification
former husband was legal custodian of child, former wife had
burden of showing that substantial reasons existed for changing custody
and that change was in best interest of child.
*770 Clyde Ray Harvick, pro se.
Terry C. Aglietti, Aglietti, Rodey & Offret, Anchorage, for appellee.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
Pro se litigant Clyde Harvick appeals the superior court's decision
his ex-spouse, Dorthea Harvick, to withdraw her voluntary relinquishment of
parental rights in their daughter. The court's decision effectively reinstated
an earlier court order awarding custody to Dorthea. Although we
agree that Dorthea, a native Alaskan, had the right to
withdraw her relinquishment under the Indian Child Welfare Act (ICWA),
we remand this case for a hearing to determine what
custody disposition is in the child's best interests.
Dorthea and Clyde Harvick were divorced in March 1979. The
court gave Dorthea custody of the couple's two-year-old daughter, Mary
Jean. Clyde received reasonable visitation rights.
Subsequent to the divorce, Dorthea developed a severe problem with
alcohol. In April 1981, she placed Mary Jean with the
Division of Family and Youth Services (DFYS) and enrolled in
an alcohol treatment program. In June 1981, Dorthea voluntarily signed
a relinquishment of her parental rights before Master William Hitchcock.
Master Hitchcock signed a voluntary consent certification as required by
statute. DFYS took temporary custody of Mary Jean.
Later that month, DFYS moved Mary Jean from foster care
to the care of her father who was then residing
in Utah. According to the DFYS report, Clyde was "willing
and anxious" to take custody of Mary Jean. A home
by Utah social services at the request of DFYS indicated
that he was a fit person to take custody of
It appears from the record that neither Clyde nor the
state sought a final termination of Dorthea's rights. Although DFYS
paperwork indicated that "legal custody" was being returned to Clyde,
no order giving Clyde formal custody of Mary Jean was
ever issued by any court.
Mary Jean lived with her father for approximately six and
one-half years. Dorthea had no contact with Mary Jean until
she wrote her daughter in 1987. Dorthea did, however, correspond
sporadically with Clyde.
In November 1987, Dorthea filed an action in California, where
Clyde was then living with Mary Jean, seeking to enforce
the 1979 custody decree. She filed an affidavit with the
California court claiming that she had not known of Mary
Jean's whereabouts during the last six and one-half years. She
also claimed that she had voluntarily given Clyde temporary custody
of Mary Jean while she went through alcohol treatment but
that he had simply taken and kept the child.
Clyde informed the California court that Dorthea had voluntarily relinquished
all rights to the child. However, Clyde could not produce
documents to prove that this relinquishment had occurred. The California
court, having only the custody decree before it, ordered that
Mary Jean be returned to her mother. Consequently, Mary Jean
has been in Dorthea's physical custody since November 1987.
*771 In January 1988, Clyde moved to modify custody in the
Alaska courts. [FN1]
In May 1989, Dorthea moved to withdraw her voluntary relinquishment.
In October 1989, Judge Andrews consolidated Dorthea's motion with Clyde's
motion to modify.
Superior court Judge Elaine Andrews ordered a custody evaluation and
held a hearing on Clyde's motion to modify custody in
May 1989. At the hearing Clyde attempted to show that
Dorthea had voluntarily relinquished all her parental rights through the
testimony of the social worker who had been present at
the relinquishment. Judge Andrews stopped the hearing when she realized
that Clyde was attempting to prove termination of parental rights
by testamentary rather than documentary evidence and sent the attorneys
to look for the relinquishment document. Once the relinquishment file
was located, Judge Andrews ordered another hearing.
In December 1989, Judge Andrews granted Dorthea's motion to set
aside relinquishment of her parental rights. In her decision and
order, Judge Andrews stated that:
the plain language of § 1913
[of the Indian Child Welfare Act (ICWA) ], it appears
that, no final decree of termination having been entered by
the Alaska courts and no final petition of adoption having
been signed that Ms. Harvick has an unqualified right to
withdraw her voluntary relinquishment. To find otherwise would be contrary
to the dictates of ICWA and the ameliorative goals of
effect of this court's order granting the withdrawal of Ms.
Harvick's voluntary relinquishment is to set the parties back to
their respective legal positions of March 15, 1979, pursuant to
the divorce decree granted at that time. The mother has
custody of the child. The father has rights of visitation.
Judge Andrews also ruled that Clyde's motion for modification was
not ripe for decision. [FN2] This appeal followed.
Apparently, the court ordered Clyde's motion to modify custody withdrawn
without prejudice on November 1, 1990.
courts are vested with broad discretion in dealing with custody issues.
Gratrix v. Gratrix, 652 P.2d 76, 79 (Alaska 1982). We review custody determinations
on an abuse of discretion basis. Id. at 79- 80. It is within the special competency of this court
to independently interpret a statute. Wien
Air Alaska, Inc. v. Dep't of Revenue, 647 P.2d 1087,
1090 (Alaska 1982).
A literal application of the ICWA
authorizes Dorthea's withdrawal of her relinquishment. The
ICWA provides that:
any voluntary proceedings for termination of parental rights to, or
adoptive placement of, an Indian child, the consent of the
parent may be withdrawn for any reason at any time
prior to the entry of a final decree of termination
or adoption, as the case may be, and the child
shall be returned to the parent.
25 U.S.C. § 1913(c).
In re J.R.S. v. M.S.F., 690 P.2d 10 (Alaska 1984) (consent to termination of parental
rights under the ICWA may be withdrawn at any time
before a final decree of termination is entered). Although the
drafters of this statute probably never envisioned the unusual circumstances
of this case, a plain reading of the section supports
the trial court's decision to allow Dorthea to withdraw her
However, the relinquishment issue clouds what is essentially a custody
dispute between divorced parents. Although no court order transferred legal
custody to Clyde, we cannot ignore the fact that he
was the child's sole care giver for six and one-half
In general, when a divorce decree
gives custody to one parent, as opposed to the other, it is effective
only as between the parties to the divorce. Turley
v. Turley, 638 P.2d
469 (Okla.1981). Courts have applied this
rule in holding that the right to custody of a minor child automatically
transfers to the non-custodial parent when the custodial parent dies.
v. Superior Court, 82 Ariz. 181, 309 P.2d 973 (1957). Similarly, in this case, Dorthea's
relinquishment of parental rights operated *772 to transfer custody to Clyde as the only remaining natural parent. The
relinquishment document, which was approved by the court, constitutes
a modification of custody.
Although Dorthea retains the right to withdraw her relinquishment under
the ICWA, it does not naturally follow that she is
therefore entitled to legal custody of her daughter under state
law. We therefore conclude that the superior court erred in
returning the parties to their 1979 legal positions without further
proceedings to modify custody. [FN3]
It is unclear why the superior court ruled that Clyde's
motion was not ripe for decision at the December hearing.
We have previously observed that the ripeness doctrine is designed
to prevent judicial review of abstract disagreements. Standard
Alaska Production Co. v. State, 773 P.2d 201, 210 n. 14 (Alaska 1989). This is
not such a dispute.
The superior court has continuing jurisdiction "during the minority of
a child of the marriage, [to] make, modify, or vacate
an order for the custody of or visitation
with the minor child that may seem necessary or proper...."
AS 25.24.150(a). Both our case law and statutes require custody
determinations to be in accordance with the best interests of
the child. See
Gratrix, 652 P.2d at 82 (the paramount consideration in custody determinations
is the best interest of the child); AS 25.24.150(c).
We believe that the unique facts of this case require
a hearing to determine what custody disposition is in the
best interests of Mary Jean. Although, in general, it is
desirable to maintain continuity of care, see
Morel v. Morel, 647 P.2d 605, 608 (Alaska 1982), Mary Jean has lived
with both her mother and father for extended periods. The
trial court should recognize that Mary Jean lived with her
father for six and one-half years having little or no
contact with her mother and that Dorthea removed Mary Jean
from her father's care by deceptive means. We emphasize, however,
that this hearing should focus on Mary Jean's interests. To
this end, the court should ascertain her preferences. AS 25.24.150(c)(3).
Because we find that Clyde is
Mary Jean's legal custodian, Dorthea has the burden of showing that substantial
reasons exist for changing custody and that such a change is in the best
interests of Mary Jean. See
Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989) (parent seeking modification of custody
decree must show substantial change in circumstances).
We REMAND this case to the superior court for further
proceedings consistent with
828 P.2d 769