OPINION
Before BOOCHEVER, C. J., and RABIN-OWITZ, CONNOR, ERWIN and BURKE, JJ.
RABINO WITZ, Justice.
This is an appeal from the custody provisions of a divorce decree. In its decree the superior court awarded custody of the parties’ minor son Jason (then approximately two years of age) to appellee Michael Ho-rutz with “. . . Mary Frances Horutz having visitation rights as follows: One-half (½) day each week, provided the child is returned to the Plaintiff before bedtime.”
In concluding that Jason’s best interests required that he be in the care, custody and control of Michael Horutz, the trial court specifically found that
. Mary Frances Horutz, has been, and is, a person of bad character, and has been, and is, a poor and unfit mother; and she has established a pattern of life which is inimical to the proper rearing of children.
On the other hand, as to Jason’s father, the superior court found that:
While . . . Michael Horutz, Jr. has some faults, his pattern of life is generally good, and I find him to be a hard worker, thrifty, a good and moral
man, and a fit father for his son, Jason
In this appeal appellant has advanced 13 separate specifications of error, the most significant of which address the superior court’s determination of appellant’s unfitness to have custody of the minor child and the asserted failure of the superior court to conduct a fair and impartial trial.
On previous occasions we have alluded to our conclusion that “[e]hild custody determinations are among the most difficult in the law.”
For “[a] child may often carry with him for the rest of his life— more than half a century — the effects of a court’s custody award.”
In carrying out the grave responsibility granted them, our trial courts are vested with broad discretion in determining where custody should be placed.
At the appellate level the trial court’s resolution of custody issues will be disturbed only if this court is convinced that the record shows an abuse of discretion, or if controlling findings of fact are clearly erroneous.
In sifting and weighing the often emotionally charged and diametrically opposed testimony of the parties, our decisions, and Alaska’s positive law, require that the trial court’s resolution of custody issues be determined by the paramount criterion of the best interests of the child. For “[t]he best interests of the parent, or detriment to the parent, are not the test.”
In this regard AS 09.55.205 provides that in deciding custody questions, the trial court should be guided by the following considerations:
(1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider that preference in determining the question;
(2) as between parents adversely claiming the custody neither parent is entitled to it as of right.
When called upon to decide whether the trial court abused its discretion in applying the best interests test, we must at times determine whether the . trial court assigned “too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue.”
With these established precepts in mind, the evidentiary mix from which the superior court fashioned its oral decision and formal findings of fact, conclusions of law and decree will now be outlined.
Concerning what the record shows of the respective character of the parties, two rather salient points can be made. Much of the testimony which was adduced by the parties involves marital trivia and fails to focus on the real issues which needed to be addressed, namely, what custody disposition was in the best interests of the parties’ minor child Jason and the relative fitness of Michael and Mary as custodial parent. ' A second significant aspect of the record we have is that due to mechanical malfunctions of courtroom recording equipment, approxi
mately one hour of the testimony of Michael Horutz and approximately one hour of the testimony of Mary Horutz has been lost.
The record we do have reflects the following: Appellant Mary Horutz, at the time of trial, had been married four times. While still married to her third husband, she and appellant Michael Horutz began cohabitating and lived together for approximately six months before they were married. Mary had one child, Vickie, from a previous marriage.
Mary and Michael were married in late 1971, this was the first marriage for Michael. Jason was born in August of 1974 and approximately one year later Mary and Michael separated. They were granted a divorce by the superior court in September 1974.
During the time they lived together, Michael, for the most part, worked days either as a bartender or as an ironworker, and Mary worked nights as a cocktail waitress. Their differing schedules led to problems. The parties had arguments and fights which Mary contended caused her to drink more than she otherwise would. It is clear from the record that Mary’s daughter, Vickie, and Michael did not have a satisfactory relationship which led, in part, to Vickie’s voluntarily leaving her mother’s and Michael’s home when she was nearly 16 years old.
Mary began an affair with another man before Michael and she separated.
Our overall disposition of this appeal makes it unnecessary to discuss in detail each of the 13 separate specifications of error. We deem it sufficient to concentrate on the superior court’s conclusions “[t]hat it is in the best interests of Jason Michael Horutz, the minor child of the parties, that the plaintiff, Michael Horutz, Jr., should have the care, control and custody of said child,” and that Mary Horutz should be granted one-half day visitation rights per week.
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OPINION
Before BOOCHEVER, C. J., and RABIN-OWITZ, CONNOR, ERWIN and BURKE, JJ.
RABINO WITZ, Justice.
This is an appeal from the custody provisions of a divorce decree. In its decree the superior court awarded custody of the parties’ minor son Jason (then approximately two years of age) to appellee Michael Ho-rutz with “. . . Mary Frances Horutz having visitation rights as follows: One-half (½) day each week, provided the child is returned to the Plaintiff before bedtime.”
In concluding that Jason’s best interests required that he be in the care, custody and control of Michael Horutz, the trial court specifically found that
. Mary Frances Horutz, has been, and is, a person of bad character, and has been, and is, a poor and unfit mother; and she has established a pattern of life which is inimical to the proper rearing of children.
On the other hand, as to Jason’s father, the superior court found that:
While . . . Michael Horutz, Jr. has some faults, his pattern of life is generally good, and I find him to be a hard worker, thrifty, a good and moral
man, and a fit father for his son, Jason
In this appeal appellant has advanced 13 separate specifications of error, the most significant of which address the superior court’s determination of appellant’s unfitness to have custody of the minor child and the asserted failure of the superior court to conduct a fair and impartial trial.
On previous occasions we have alluded to our conclusion that “[e]hild custody determinations are among the most difficult in the law.”
For “[a] child may often carry with him for the rest of his life— more than half a century — the effects of a court’s custody award.”
In carrying out the grave responsibility granted them, our trial courts are vested with broad discretion in determining where custody should be placed.
At the appellate level the trial court’s resolution of custody issues will be disturbed only if this court is convinced that the record shows an abuse of discretion, or if controlling findings of fact are clearly erroneous.
In sifting and weighing the often emotionally charged and diametrically opposed testimony of the parties, our decisions, and Alaska’s positive law, require that the trial court’s resolution of custody issues be determined by the paramount criterion of the best interests of the child. For “[t]he best interests of the parent, or detriment to the parent, are not the test.”
In this regard AS 09.55.205 provides that in deciding custody questions, the trial court should be guided by the following considerations:
(1) by what appears to be for the best interests of the child and if the child is of a sufficient age and intelligence to form a preference, the court may consider that preference in determining the question;
(2) as between parents adversely claiming the custody neither parent is entitled to it as of right.
When called upon to decide whether the trial court abused its discretion in applying the best interests test, we must at times determine whether the . trial court assigned “too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue.”
With these established precepts in mind, the evidentiary mix from which the superior court fashioned its oral decision and formal findings of fact, conclusions of law and decree will now be outlined.
Concerning what the record shows of the respective character of the parties, two rather salient points can be made. Much of the testimony which was adduced by the parties involves marital trivia and fails to focus on the real issues which needed to be addressed, namely, what custody disposition was in the best interests of the parties’ minor child Jason and the relative fitness of Michael and Mary as custodial parent. ' A second significant aspect of the record we have is that due to mechanical malfunctions of courtroom recording equipment, approxi
mately one hour of the testimony of Michael Horutz and approximately one hour of the testimony of Mary Horutz has been lost.
The record we do have reflects the following: Appellant Mary Horutz, at the time of trial, had been married four times. While still married to her third husband, she and appellant Michael Horutz began cohabitating and lived together for approximately six months before they were married. Mary had one child, Vickie, from a previous marriage.
Mary and Michael were married in late 1971, this was the first marriage for Michael. Jason was born in August of 1974 and approximately one year later Mary and Michael separated. They were granted a divorce by the superior court in September 1974.
During the time they lived together, Michael, for the most part, worked days either as a bartender or as an ironworker, and Mary worked nights as a cocktail waitress. Their differing schedules led to problems. The parties had arguments and fights which Mary contended caused her to drink more than she otherwise would. It is clear from the record that Mary’s daughter, Vickie, and Michael did not have a satisfactory relationship which led, in part, to Vickie’s voluntarily leaving her mother’s and Michael’s home when she was nearly 16 years old.
Mary began an affair with another man before Michael and she separated.
Our overall disposition of this appeal makes it unnecessary to discuss in detail each of the 13 separate specifications of error. We deem it sufficient to concentrate on the superior court’s conclusions “[t]hat it is in the best interests of Jason Michael Horutz, the minor child of the parties, that the plaintiff, Michael Horutz, Jr., should have the care, control and custody of said child,” and that Mary Horutz should be granted one-half day visitation rights per week. As we have indicated, the major premise for these conclusions was the superior court’s underlying findings that Mary was of bad character, a “poor and unfit mother,” and had “established a pattern of life which is inimical to the proper rearing of children.” A minor premise of the superior court’s conclusion was the finding that Mary’s child by a previous marriage “has been virtually ruined by various aspects of Mary’s pattern of life.”
Given the enormously important interest involved here, .the significant gaps in the testimony of the two principal witnesses, and the opaqueness of the evidence as it relates to the relative parental fitness of Mary and Michael, we have concluded that the matter should be remanded to the superior court for further proceedings. This is not to say that we have necessarily found the superior court’s ultimate determination of custody was erroneous in light of the best interests of the minor child standard, although we do have serious reservations as to whether there is sufficient evidentiary basis for the extremely limited visitation rights which were accorded Mary.
On the other hand, our ability to carry out our normal review functions has been seriously handicapped by the absence of a complete record in the case at bar. We are fully cognizant of the limitations of both the parties’ emotional and material resources in these matters, as well as the need to conserve judicial resources. Nevertheless, our past decisions have made it abundantly clear that the focal point of any custody dispute is to reach a custody disposition that is in the child’s, not the parent’s best interest. It is on this point that our careful review of the partial record we do have leaves us uncertain as to the sufficiency of the evidentiary bases for the trial court’s controlling findings concerning Mary’s bad character and her unfitness to act as a custodial parent of Jason. For the record is lacking any searching inquiry into Mary and Michael’s relative fitness as parents of their minor child. What we find in the record is a great quantum of testimony which concerns conduct of Mary and Michael that is unrelated and lacks relevance to their respective relationships to their minor child, and their ability to accord the child the most meaningful parent-child relationship.
More particularly, it strikes us that the trial court might possibly have assigned too great a weight to the respective sexual conduct of the parties without determining what impact such conduct had on the parties parental relationship to Jason.
In view of this possibility and the
importance of the custody question and the fact that the child’s best interests were not independently protected by the appointment of a guardian ad litem, we cannot finalize the decree in this case.
We therefore remand the case for further proceedings not inconsistent with the foregoing. Upon remand, the superior court should appoint a guardian ad litem for the child,
and take such additional steps as are deemed appropriate, including the taking of additional testimony on the custody issue. During the pendency of such further proceeding, primary custody is to remain with Michael, with the superior court further empowered to make such interim visitation provisions as it deems appropriate.
The Decree of Divorce as entered in this case is affirmed in its provisions dissolving the bonds of matrimony between Mary and Michael and its approval of the parties’ property settlement agreement. The portions of the decree relating to the award of custody, visitation rights and support payments are vacated and remanded for further proceedings not inconsistent with this opinion.
