Jfe v. Jas

930 P.2d 409, 1996 Alas. LEXIS 146
CourtAlaska Supreme Court
DecidedDecember 13, 1996
DocketS-7501
StatusPublished

This text of 930 P.2d 409 (Jfe v. Jas) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jfe v. Jas, 930 P.2d 409, 1996 Alas. LEXIS 146 (Ala. 1996).

Opinion

930 P.2d 409 (1996)

J.F.E., Appellant,
v.
J.A.S., Appellee.

No. S-7501.

Supreme Court of Alaska.

December 13, 1996.
Rehearing Denied January 31, 1997.

Kenneth C. Kirk, Anchorage, for Appellant.

Ernest Z. Rehbock, Rehbock & Rehbock, Anchorage, for Appellee.

Before COMPTON, C.J., and RABINOWITZ, MATTHEWS, EASTAUGH and FABE, JJ.

MATTHEWS, Justice.

The issue in this case is whether the trial court erred in restricting a father's visitation privileges with his daughter to visits under the supervision of a third party. We conclude that a number of the findings made by the court concern incidents which are too removed in time and too trivial to support supervised visitation. We conclude further that while unrestricted visitation is the norm, supervised visitation can be required when the court makes findings which specify why unsupervised visitation is contrary to the best interests of the child. We remand for further proceedings conducted in accordance with these conclusions.

Appellant J.F.E. (John)[1] and appellee J.A.S. (Jane) are the parents of Rebecca, born in February 1989. John and Jane were never married. They lived together until May 1990. The parties agree that John was the primary care giver of the child from September 1989 until the parties separated. Thereafter Rebecca lived with Jane but John exercised visitation privileges. In November 1990 Jane prohibited John from further visitation, claiming that he had sexually molested Rebecca.

In January 1993 John filed a complaint for custody. In June 1994 John was permitted *410 supervised visits with Rebecca. Trial began in August 1994 and was spread out over six months, consuming seven trial days. Following the trial the court entered findings of fact and conclusions of law and decreed that custody of Rebecca should be with Jane and that John was entitled only to supervised visits.

In support of the supervised visitation limitation, the court referred to conduct of the child described as "sexual acting out." Concerning this behavior the court made the following findings:

7..... The court notes that in spite of the fact that no medical doctor has shown any physical indication of sexual abuse, [Rebecca] continues to act out with persons other than her mother in a sexually explicit manner, and certainly inconsistent with behavior of a child of her age and maturity.
....
12. This case has also been complicated by [Rebecca] exhibiting sexual acting out in that she has extremely terrifying nightmares and acts out sexually in a way which indicates one of three things, according to Dr. Laura Jones during her third time testifying. One would have been that she has been sexually abused in the past; two, sexual abuse is occurring presently which is very doubtful in that she [is] only having supervised visitation with her father and not much other contact with other males other than her godfather ...; third and finally, she could be acting out of anxiety that she is picking up verbally through her mother, which the court does not believe, nor did the experts.
13..... The evidence does not support finding that [John] himself has abused [Rebecca], but that she has exhibited, and the court does find that she was sexually abused based on her actions and the supporting testimony of Dr. Laura Jones, and Dr. Karen Sensig.
....
15..... The fact that [Rebecca] continues to act out sexually is of concern to the court, and as Dr. Jones said had visitation not begun, she would not have recommended that visitation start without much more counseling for [Rebecca] so that she does not have the anxiety after visits with her father nor does she have the nightmares and the sexual acting out that has continued.

Apart from concerns based on the child's acting out behavior, the court gave significant weight to a video tape and still photos which John took of Rebecca when the child was two years old or younger. Two of the photos were of Rebecca sitting unclothed in a bowl on a stove top. Other still photos and the video tape included scenes of the child while she was bathing. The court made numerous references to the photos and the video tape in its findings and conclusions:

[Finding] 4..... The court needs to consider the needs of the child in that [Jane] appears to be most attentive to the needs of the child, [Rebecca] whereas, at least early on as exhibited by the evidence submitted in open court, [John] is not sensitive to the needs of the child in that he allowed the child to be in an unsafe situation in a bath tub while being video taped without talking to the child, playing with the child, and doing anything other than taking the video picture of the child. Moreover, there was evidence submitted that [John], in what appeared to be at least in a negligent way, placed the child in a large pyrex type glass bowl on the stove and took pictures of her sitting on the stove, thinking it was "cute," which could have resulted in her falling while making a quick movement and severely injuring herself if not causing cuts that could be deadly.
....
[Finding] 9. There is an issue regarding special needs unique to this child in that [John] apparently has little sensitivity to the child's personal needs as exhibited by his prior actions in photographing the child, and taking video tapes and not even acknowledging or talking to the child. The taking of such video tape by [John] appeared to demonstrate his lack of sensitivity regarding his child's needs while she was younger, and the court recognizes that at her present age she is fluent in the English language and able to express herself verbally in a way where that aspect of *411 the father/daughter relationship may not be as significant.
....
[Finding] 11..... [T]here was substantial evidence of child neglect proven to the court's satisfaction in [John's] household and no evidence of any such neglect in [Jane's] household. In particular, the neglect indicated would be the way in which [John] had "posed" his daughter for photographs and video tapes which is apparent to the court in viewing the photographs and video tape. Children [Rebecca's] age at the time the video tapes and photos were taken are much too unsophisticated to do anything more than simply playing and smile. None of the experts believe that such "posing" was appropriate for the age of the child. Moreover, the court does deem it neglectful on [John's] part to ignore the cooing and pre-verbal sounds that [Rebecca] was making while he was video taping her at the time she was in her infancy, plus the fact she appeared to be standing in a slippery bath tub and jumping in a way that could cause her to fall and severely injure herself while he was taking the video tape. The court would note that [John] was not in the picture while the child was jumping and has no hand on her which would indicate to the court that the practice was unsafe. As previously indicated, [Rebecca] is approximately six (6) years of age at the present time, so these particular concerns are no longer in existence.
....
[Conclusion] 2.....

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Farrell v. Farrell
819 P.2d 896 (Alaska Supreme Court, 1991)
In Re Marriage of Diehl
582 N.E.2d 281 (Appellate Court of Illinois, 1991)
K.T.E. v. State
689 P.2d 472 (Alaska Supreme Court, 1984)
D.H. v. State
723 P.2d 1274 (Alaska Supreme Court, 1986)
J.F.E. v. J.A.S.
930 P.2d 409 (Alaska Supreme Court, 1996)
Lightbourne v. Lightbourne
179 A.D.2d 562 (Appellate Division of the Supreme Court of New York, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
930 P.2d 409, 1996 Alas. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jfe-v-jas-alaska-1996.