Family Law Keyed to Weisberg

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Bell v. Bell

Citation. Bell v. Bell, 794 P.2d 97, 1990 Alas. LEXIS 79 (Alaska June 22, 1990)

Brief Fact Summary. Mother and Father married and produced one child from the marriage. The two separated, but alternated custody and cooperated in making most major decisions. The trial court awarded legal and physical custody of the child to Mother.

Synopsis of Rule of Law. Alaskan statutory law favors joint legal custody when possible, regardless of the physical custody arrangement.

Facts. Greg and Debra Bell married in 1986 and separated in 1987. While married, the two shared most child rearing tasks. Sharon Nollman babysat the couples’ child part-time in 1996 and full-time in 1987. She continued to babysit until February 1988, when this trial occurred. The couple agreed to share custody upon separation, with both using Nollman to babysit. They accommodated each other’s schedules. An interim custody hearing directed the couple to continue their weekly alternating schedule of shared physical custody, and to continue utilizing Nollman for babysitting. They continued to accommodate one another and cooperating in making major decisions about their sons medical care. The trial court awarded legal and physical custody of the child to Debra, allowing Greg visitation on alternating weekends and during four one-week periods spread throughout the year. Greg appealed.

Issue. Did the trial court err under Alaskan law by not awarding joint custody to both parents?

Held. The court’s ruling was clearly erroneous because the evidence did not support the court’s ruling that the couple were incapable of meaningful communication and/or negotiation.
Alaskan statute states that the court may award shared custody to both parents if shared custody is determined to be in the best interests of the child.

Two interrelated aspects are apparent in a joint custody arrangement: 1) legal custody, which means the parents share responsibility in making of major decisions affecting the child’s welfare; 2) physical custody, which means that each is entitled to the companionship of the child over periodic intervals of time. In an act amending the statute, the legislature expressed a policy favoring the award of joint legal custody, regardless of the physical custody arrangement.

The factual finding underlying the trial court’s ruling was clearly erroneous. The court found the two were incapable of meaningful communication and/or negotiation regarding matters that relate to the best interests of the child. However, the only area of irreconcilable conflict was what form of day care was best for the child. This one area of conflict does not support a finding of inability to cooperate.

The custody investigator recommended joint legal custody because the couple had the ability to deal with each other in a civil and mutual manner. At trial, both parties agreed that joint legal custody was appropriate. Although the disagreement over daycare represents a fundamental child care issue, it does not require denial of the legislatively preferred joint legal custody.

Discussion. The case demonstrates the difference between joint legal and joint physical custody, and the Court supports the public interest of joint legal custody based upon the public interest to encourage parents to share the rights and responsibilities of child rearing.