Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

NICKCOLE E. MOORE, 

Appellant, 

v. 

FORREST W. MCGILLIS, 

Appellee. 

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) Supreme Court No. S-16375 

Superior Court No. 1KE-10-00676 CI 

O P I N I O N 

No. 7217 – January 12, 2018 

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Appeal from the Superior Court of the State of Alaska, First 

Judicial District, Ketchikan, William B. Carey, Judge. 

Appearances: Allison Mendel and John J. Sherman, Mendel 

Colbert & Associates, Inc., Anchorage for Appellant. Blake 

M. Chupka, Chupka Currall LLC, Ketchikan, for Appellee. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

CARNEY, Justice. 

I. INTRODUCTION 

A mother moved to modify an existing custody arrangement with her exhusband. She asked that she be given primary custody of their daughter and that the exhusband’s visitation rights and legal custody over her son — the ex-husband’s 

stepson — be terminated. The trial court denied her motion and found that, given the 

recent intervention of the stepson’s biological father, the ex-husband’s obligation to pay 

child support was terminated. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

We affirm the trial court’s denial of the modification motion with regard 

to the daughter. But we hold that the legal intervention of a previously absent biological 

parent constitutes a substantial change in circumstances as a matter of law, and 

accordingly we reverse the trial court’s denial of the modification motion for the son and 

remand for best interests findings under AS 25.24.150(c). Finally, we hold that a 

psychological parent’s childsupport obligationcontinuessolongasthatparent maintains 

some custody of the child, and reverse the trial court’s absolution of the ex-husband’s 

child support obligation. 

II. FACTS AND PROCEEDINGS 

A. Prior Modification Motions 

Nickcole Moore and Forrest McGillis were married in Ketchikan in 2006. 

Nickcole had a son from a previous relationship, born in 2004. The son’s biological 

father, Jeremy Thompson, had been absent since the son’s birth. In 2007 Nickcole and 

Forrest had another child, a girl. 

In November 2010 Forrest filed a petition for divorce. The superior court 

issued a decree of divorce in December 2011 after a two-day hearing. The court awarded 

the parents shared legal custody of both children. Forrest received primary physical 

custody of their daughter in Ketchikan, while Nickcole, who had since moved to Arizona 

and begun a new relationship, received primary custody of her son. The court found that 

Forrest had established himself as the boy’s psychological father,1 and awarded him 

visitation with the son in Ketchikan for four weeks every summer and two weeks during 

1 A “psychological parent” is “one who, on a day-to-day basis, . . . fulfills the 

child’s psychological needs for an adult . . . . This relationship may exist between a child 

and any adult; it depends not upon the category into which the adult falls — biological, 

adoptive, foster, or common-law — but upon the quality and mutuality of the 

interaction.” Evans v. McTaggart, 88 P.3d 1078, 1082 (Alaska 2004) (quoting Carter v. 

Brodrick, 644 P.2d 850, 853 n.2 (Alaska 1982)). 

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the Christmas season in alternating years.2 Nickcole was awarded a similar arrangement 

with their daughter. Both parties were ordered to allow twice-per-week telephone 

contact with the child in the other’s custody. 

In May 2012 Nickcole filed a motion to modify custody, asking for “full 

custody” of her son and primary custody of her daughter. She alleged that the living 

situation in Ketchikan had deteriorated, that Forrest had prevented meaningful contact 

with their daughter, and that Forrest had assaulted Nickcole during the most recent 

custody exchange. Forrest denied the assault allegation and claimed that his living 

situation was “perfectly suited for the blended family being raised” by him and his 

girlfriend. 

The court denied Nickcole’s motion after a hearing. It concluded, based 

on recordings of the alleged assault and on witness testimony, that Nickcole had 

fabricated the incident and “perjured herself in court.” It dismissed her other claims as 

unproven and exaggerated. 

In May 2013 Nickcole filed a second motion to modify custody and child 

support, asking for primary custody of their daughter and sole custody of her son. She 

repeated a number of allegations regarding Forrest’s “chaotic” living environment and 

his refusal to facilitate contact with the children, and added that the recent reappearance 

of Jeremy Thompson, her son’s biological father, should be considered a changed 

circumstance warranting modification. 

The court denied Nickcole’s motion without a hearing. It found her 

allegations regarding contact and Forrest’s living conditions unsupported and stated that 

2 “To be awarded custody a ‘non-parent must show that the child would 

suffer clear detriment if placed in the custody of the parent.’ ” Osterkamp v. Stiles, 235 

P.3d 178, 185 (Alaska 2010) (quoting Evans, 88 P.3d at 1085). 

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the reappearance of the son’s biological father and his increased contact with the son 

“[did] not mean that . . . custody . . . needs to be modified.” 

In May 2015 Jeremy filed a “Petition to Intervene in Custody Action and 

Request for Allocation of Parental Rights and Responsibilities” as the son’s biological 

father. Shortly thereafter Nickcole filed a third motion to modify custody, seeking to 

terminate Forrest’s visitation rights to the son and once more asking for primary physical 

custody of their daughter. She alleged that Forrest’s relationship with her son had 

diminished, that Jeremy had since developed a “strong relationship” with the son, that 

Forrest’s living situation had “deteriorated” since the original custody order, and that 

Forrest was“interferingwithNickcole’s rightto telephonecontact with [their daughter].” 

Forrest opposedNickcole’s motion, but agreed that Jeremycould intervene 

and assume parental responsibilities, including Forrest’s child support obligation. 

Nickcole objected that Forrest could not both maintain custody of the son and absolve 

himself of his support obligation. 

The court granted Jeremy’s petition to intervene, scheduled a hearing on 

Nickcole’s motion, and appointed a custody investigator. 

B. The Modification Hearing And The Court’s Findings 

At the hearing the custody investigator testified and recommended that 

physical custody remain largely within the status quo: primary physical custody of the 

son with Nickcole and primary physical custody of the daughter with Forrest. But he 

also recommended that Nickcolebe awarded sole legal custody of her son, and suggested 

“fine-tuning” the custody schedule to reduce the son’s summer visitation in Ketchikan 

to three weeks to better reflect the child’s developing preferences. The custody 

investigator testified that the children had grown accustomed to their alternating, dualhousehold lifestyle, and that the primary concern for the parents should be maintaining 

stability. Although the parents offered two different types of home —Forrest living with 

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extended family in Ketchikan, Nickcole with a nuclear family in Phoenix, Arizona — 

the custody investigator testified that neither environment was superior to the other and 

that both children appeared to be doing well in their respective homes. 

The custody investigator also testified that Forrest and Nickcole were 

ineffective communicators. He described Nickcole as more willing to facilitate phone 

contact between Forrest and the children, and Forrest had confirmed to the investigator 

that his phone contact with the son had been “less than adequate.” 

Nickcole testified that Forrest’s contact and relationship with her son had 

been diminishing over time and that the son was now less interested in speaking to 

Forrest than in speaking to Jeremy, with whom he communicated often. She stated that 

Forrest had not allowed her to contact their daughter as the custody order required. She 

claimed that she was only able to speak to their daughter once every two to three weeks 

although she tried to call twice a week. She also argued that Forrest’s new work 

schedule — 2 p.m. to 10 p.m. on weekdays — kept him from the children even when 

they were visiting with him. 

The court found that Nickcole had not demonstrated a substantial change 

in circumstances as to the daughter. Nickcole’s problems communicating with Forrest, 

it found, were partly due to Nickcole’s “rather rigid and self-righteous attitude,” and 

were “nothing new.” The court then proceeded to “consider the physical, emotional, 

mental, religious, and social needs of the child,” and concluded that there was no 

indication that Forrest’s care of their daughter was unsatisfactory. The court found that 

both children had “adjusted” to the living situations and each “lived in a stable and 

satisfactory environment.” 

The court made no express finding regarding changed circumstances as to 

the son. It instead repeated its previous finding that Nickcole had fabricated an act of 

domestic violence in an effort to gain an advantage over Forrest in custody proceedings, 

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and concluded that Nickcole was “just hell bent on terminating the relationship between 

[her son] and [Forrest].” Based on the testimony of the custody investigator, the court 

found that Forrest’s parental relationship with the son continued “despite [Nickcole’s] 

best efforts.” 

The court ordered that the summer visitation schedule be changed from an 

equally divided four weeks in Alaska and Arizona for both children to three weeks in 

Alaska, five weeks in Arizona, to accommodate “[the son’s] other interests and needs.” 

The court “adopt[ed] all of the other recommendations by [the custody investigator] with 

respect to how the parties should communicate and such.” It did not address the 

recommendation that Nickcole be given sole legal custody of her son. 

At Nickcole’s request the court repeated the custody order’s requirements 

for telephone contact. It warned Forrest that Nickcole and their daughter were to “have 

two calls a week and that’s actual communication,” or Forrest “could be subject to being 

held in contempt of court.” 

The court ordered the parties to brief the issue of Forrest’s child support 

obligation. The court then issued written findings. It found that Nickcole had not 

demonstrated any change in circumstances with regard to their daughter, and that she had 

not shown that Forrest and their daughter’s new living situation with Forrest’s girlfriend 

and her family “had a negative impact on [the daughter].” It also found that her claim 

that Forrest’s new work situation prevented him from spending sufficient time with their 

daughter was “simply not supported by the evidence.” 

The court once more made no express changed circumstances finding with 

regard to the son. It instead dismissed Nickcole’s claims about “the dissolution of the 

relationship between [her son] and [Forrest]” as “the result of a concerted and highly 

cynical effort on the part of [Nickcole] to create that result.” The court ruled that 

Nickcole’sefforts notwithstanding, Forrest “still loves and cares about theboy and wants 

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what is best for him.” The court considered the introduction of Jeremy into the son’s life 

to be an effort by Nickcole to “place one more obstacle between [her son] and [Forrest].” 

The court repeated its revised visitation schedule for the children and 

restated its order that “[the daughter] is to have 2 uninterrupted phone calls per week 

with her mother.” “Legal and physical custody shall remain as previously set out,” the 

court concluded. 

The court then ruled that even though Forrest continued to share custody 

of the son, his child support obligation “effectively ceased when he acceded to 

[Jeremy’s] intervention in this matter and [Jeremy’s] request to have parental rights and 

obligations imposed.” 

Nickcole appeals. 

III. STANDARD OF REVIEW 

“Wereviewatrialcourt’schildcustodymodificationdecision deferentially, 

reversing the decision only when the lower court abused its discretion or when its 

controlling findings of fact were clearly erroneous.”3 “The court’s broad discretion 

extends to its determination whether, following an evidentiary hearing, the moving party 

has proven a substantial change in circumstances, meaning one that affects the child’s 

welfare.”4 “Abuse of discretion is established if the trial court considered improper 

factors in making its custody determination, failed to consider statutorily mandated 

3 Collier v. Harris (Collier II), 377 P.3d 15, 20 (Alaska 2016) (quoting 

McLane v. Paul, 189 P.3d 1039, 1042 (Alaska 2008)). 

4 Id. (citing Heather W. v. Rudy R., 274 P.3d 478, 482 (Alaska 2012)). 

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factors, or assigned disproportionate weight to particular factors while ignoring others.”5 

Certain events may amount to changed circumstances as a matter of law.6 

Trial courts similarly “have broad discretion in deciding whether to modify 

child support orders,” and we will “review a trial court’s determination of whether to 

modify child support for an abuse of discretion.”7 But this court “independently 

review[s] whether the trial court has applied the correct legal standard in determining a 

child support obligation.”8 

IV.	 DISCUSSION 

A.	 The Trial Court Did Not Abuse Its Discretion In Finding No 

Substantial Change In Circumstances Relating To The Parties’ 

Daughter. 

Nickcole argues that the superior court abused its discretion in finding that 

there was no substantial change in circumstances regarding their daughter. We disagree. 

Alaska Statute 25.20.110(a) allows for modification of a custody order “if 

the court determines that a change in circumstances requires the modification of the 

award and the modification is in the best interests of the child.” The change in 

5	 Id. (quoting Chesser-Witmer v.Chesser, 117P.3d 711, 715 (Alaska2005)). 

6 See Barrett v. Alguire, 35 P.3d 1, 6 (Alaska 2001) (stating that a “custodial 

parent’s decision to move out of state [with the children] amounts to a [substantial] 

change in circumstances as a matter of law” (alteration in original) (quoting Acevedo v. 

Liberty, 956 P.2d 455, 457 (Alaska 1998))). 

7 Wilhour v. Wilhour, 308 P.3d 884, 887 (Alaska 2013) (citations omitted). 

8 Sawicki v. Haxby, 186 P.3d 546, 550 (Alaska 2008) (citing Beaudoin v. 

Beaudoin, 24 P.3d 523, 526 (Alaska 2001)). 

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circumstances must be “substantial,”9 “affect[] the child’s welfare,”10 and be 

“demonstrated relative to the facts and circumstances that existed at the time of the prior 

custody order that the party seeks to modify.”11 When analyzing the child’s best interests 

the court should look to “the statutory factors enumerated in AS 25.24.150(c).”12 

Of the changes that Nickcole alleged, the most significant were Forrest’s 

new work schedule and family arrangements. Since the 2011 custody order, Forrest and 

his daughter had been living with his girlfriend and her large family. He had also been 

working an evening shift from 2 p.m. to 10 p.m. The daughter reportedly told the 

custody investigator that “she finds her dad preoccupied either . . . away at work or when 

he’s in the home that he’s busy preparing meals or doing things for the family.” 

Butthetrialcourtwaswithin its discretion to find thesechanges insufficient 

to warrant a modification of custody because they did not demonstrate any material 

negative impact on the child. A substantial change in circumstances must be “one that 

affects the child’s welfare.”13 And although Forrest’s time with his daughter had 

decreased since 2011, Nickcole failed to show that this had resulted in any material 

disruption to what the custody investigator described as an otherwise stable existence in 

Ketchikan. The custody investigator’s recommendations and testimony support the 

court’s finding that no substantial change in circumstances had occurred with regard to 

the daughter’s welfare, despite the changes in Forrest’s work hours and family life. 

9 Collier v. Harris (Collier I), 261 P.3d 397, 403 (Alaska 2011). 

10 Collier II, 377 P.3d at 20 (citing Heather W., 274 P.3d at 482). 

11 Collier I, 261 P.3d at 403 (quoting Peterson v. Swarthout, 214 P.3d 332, 

340-41 (Alaska 2009)). 

12 Collier II, 377 P.3d at 20 (quoting Heather W., 274 P.3d at 482-83). 

13 Id. 

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Nickcole also argues that the court failed to account for her difficulty 

contacting her daughter. But the court admonished the parties to “communicate better,” 

warned Forrest that he could be held in contempt for failing to facilitate Nickcole’s calls, 

and repeated its order that “[the girl] should have 2 uninterrupted phone calls per week 

with her mother.” We have held that denial of telephone visits is “a serious issue,” and 

may constituteasignificant changeincircumstances justifying modificationofcustody.14 

But we have also held that a court should not order a change in custody for violations of 

custody orders “until [it] has explored less intrusive means of obtaining compliance.”15 

And we have stated that the appropriate response to a party’s failure to abide by a court 

order “is to seek an order directing the non-compliant party to comply.”16 Although 

Nickcole testified that she was only able to speak with her daughter once every two or 

three weeks, not the twice-weekly calls that the court ordered in 2011, the record does 

not show that Nickcole ever filed a motion to compel Forrest’s compliance. The superior 

court was thus within its discretion to focus on enforcement of the present order rather 

than address it through custody modification. 

Nickcole also claims that the court wrongfully analyzed the circumstances 

from the date of her previous motion, rather than from the 2011 custody order that she 

actually sought to modify.17 She points to the court’s statement that her communication 

14 Hunter v. Conwell, 276 P.3d 413, 421 (Alaska 2012). 

15 Vachon v. Pugliese, 931 P.2d 371, 379 (Alaska 1996). 

16 Collier I, 261 P.3d at 406 (quoting Peterson, 214 P.3d at 341 n.28). 

17 See Barrett v. Alguire, 35 P.3d 1, 5-6 (Alaska 2001) (“The required change 

in circumstance . . . must be demonstrated relative to the facts and circumstances that 

existed at the time of the prior custody order that the party seeks to modify.” (quoting 

Jenkins v. Handel, 10 P.3d 586, 589 (Alaska 2000))). 

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problems with Forrest were “nothing new,” and contends that such a statement could 

refer only to her previous motions. 

But nothing in the context of the superior court’s statement suggests that 

the court was not referring back to the 2011 order, and both parties had testified at the 

original custody trial to similar communication problems. Although in its written 

findings the court did at times refer to Nickcole’s previous motions to modify, we are 

persuaded that this did not skew the court’s analysis. The court analyzed Nickcole’s 

alleged changes on their merits and concluded that Nickcole had not shown sufficient 

negative impact on her daughter to warrant modification of the existing custody 

arrangement. This analysis was grounded in the custody investigator’s testimony, and 

the court’s decision was within its discretion. 

B.	 The Intervention Of The Son’s Biological Father Amounted To 

Changed Circumstances As A Matter Of Law. 

Nickcole argues that the superior court abused its discretion in failing to 

find that the circumstances underlying its original custody order for her son had changed. 

She places special significance on the reappearance of her son’s biological father and 

Forrest’s diminished role in the son’s life. 

The court did not make any findings about changed circumstances when 

it denied Nickcole’s motion to modify her son’s custody. Instead it noted the changes 

she alleged — the son’s growing estrangement from Forrest and the intervention of 

Jeremy — and discounted their significance by attributing them to “a concerted and 

highly cynical effort on the part of [Nickcole].” 

We reverse this part of the superior court’s order. Just as a parent’s move 

out of state with a child constitutes changed circumstances as a matter of law,18 we hold 

Id. at 6 (citing Acevedo v. Liberty, 956 P.2d 455, 457 (Alaska 1998)). 

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that the intervention of a previously absent biological parent is likewise a changed 

circumstance that requires the court to weigh the child’s best interests and fashion an 

appropriate custody arrangement in light of the change. We remand for the trial court 

to consider the son’s best interests in light of Nickcole’s motion to modify both his 

physical and legal custody, which “deserve separate analysis.”19 

C.	 It Was Error To Terminate Forrest’s Support Obligation While He 

Retained Legal Custody. 

Nickcole argues that the trial court erred in terminating Forrest’s child 

support obligation to her son, andargues that even though Jeremy has intervened, Forrest 

continues to have a support obligation because of his continuing legal custody of her son. 

We agree with Nickcole and reverse the trial court’s decision absolving Forrest of his 

support obligation. 

“A biological father’s duty of support arises at the birth of his child.”20 A 

stepparent, meanwhile, generally does not acquire a support obligation toward a 

stepchild purely by virtue of becoming his or her stepparent.21 Even stepparents who 

have acted as psychological parents during a marriage are generally not subject to postmarital child support obligations when the stepparent seeks to disestablish the parental 

relationship.22 

19 Collier II, 377 P.3d at 15, 20. 

20 Hubbard v. Hubbard, 44 P.3d 153, 156 (Alaska 2002). 

21 See Dewey v. Dewey, 886 P.2d 623, 625 (Alaska 1994) (“At common law, 

a stepparent-stepchild relationship imposes no obligations and confers no benefits on 

either the stepparent or the child.” (quoting Burgess v. Burgess, 710 P.2d 417, 422 

(Alaska 1985))). 

22 See Hubbard, 44 P.3d at 156 n.7 (“[R]equiring a non-biological father to 

assume apost-divorce supportobligation isunlikely to encourage a lasting bond between 

(continued...) 

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ButForrest has notsought to disestablish hisparental relationship to theson 

here. The trial court found that he has continued to act as the boy’s psychological father, 

and Forrest has fought for and obtained continued physical and legal custody of the 

child. We have stated that those with legal custody of a child are obliged to support that 

child: “It would be strange if a child’s permanent legal custodian(s) did not have such 

a duty, at least while they retained custody; otherwise a grant of custody to a nonparent 

would leave a child with no one in its home legally obliged to support it.”23 Other courts 

too have noted the connection between custody of a child and the obligation to support.24 

Because Forrest remains the psychological father of the son, and because 

he retains legal custody, he also retains a support obligation — the intervention of the 

son’s biological father notwithstanding. We therefore reverse the trial court’s decision. 

But we note that Forrest’s custody arrangement may change on remand with the superior 

court’s analysis of the best interests factors under AS 25.24.150, and that determination 

may affect Forrest’s support obligation. 

22 (...continued) 

the non-biological father and the child.”); B.E.B. v. R.L.B., 979 P.2d 514, 520 (Alaska 

1999) (holding that “the risk of emotional harm inherent in severing a child’s 

relationship with a psychological parent cannot itself suffice as a basis for invoking the 

doctrine of paternity by estoppel”). 

23 C.R.B. v. C.C., 959P.2d375, 385 n.24(Alaska1998) (disapproved on other 

grounds by Evans, 88 P.3d at 1085). 

24 See Stein v. Stein, 831 S.W.2d 684, 689 (Mo. App. 1992) (noting that a 

“[h]usband was obligated to support [the] child as long as he retained legal custody”); 

A.S. v. I.S., 130 A.3d 763, 765 (Pa. 2015) (“[W]hen a stepparent takes affirmative legal 

steps to assume the same parental rights as a biological parent, the stepparent likewise 

assumes parental obligations, such as the payment of child support.”); In re Marriage of 

Farrell, 835 P.2d 267, 271 (Wash. App. 1992) (holding that a stepparent’s support 

obligation terminated once “the stepparent is no longer ‘custodial’ ”). 

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V. CONCLUSION 

We AFFIRM the trial court’s denial of Nickcole’s motion with regard to 

the parties’ daughter. We REVERSE its ruling as to the son’s changed circumstances 

and REMAND so it can conduct a best-interests analysis. We also REVERSE the trial 

court’s absolution of Forrest’s support obligation, and REMAND for proceedings 

consistent with this opinion. 

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