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 

HELENA DARA, f/k/a 

HELENA HARRIS, 

Appellant, 

v. 

HELENA GISH and HOWARD GISH, 

Appellees. 

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) Supreme Court No. S-16414 

Superior Court No. 3AN-14-04479 CI 

O P I N I O N 

No. 7201 – September 22, 2017 

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

Judicial District, Anchorage, Erin B. Marston, Judge. 

Appearances: Helena Dara, pro se, Memphis, Tennessee, 

Appellant. Herbert M. Pearce, Law Office of Herbert M. 

Pearce, Anchorage, for Appellees. 

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

and Carney, Justices. 

WINFREE, Justice. 

I. INTRODUCTION 

The superior court granted joint legal and primary physical custody of a 

child to his maternal grandmother and step-grandfather. The child’s mother — who 

retained joint legal custody and visitation rights — appeals, arguing that: she was 

entitled to court-appointed counsel during the proceedings; the order violates her 

Fourteenth Amendment right to direct the upbringing and education of her child; and the 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

court erred in its custody determination. Because the mother provides no legal basis for 

her claimto court-appointed counsel, weaffirmthecourt’s decision denying that request. 

Because the court applied the correct constitutional and legal standard for third-party 

custody, its factual findings were not clearly erroneous, and its exercise of discretion was 

not unreasonable, we affirm the court’s order awarding joint legal and primary physical 

custody of the child to the grandparents. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Helena Dara’s son was born in 2006. Dara’s mother and step-father, 

Helena and Howard Gish, have been a significant presence in the boy’s life. In March 

2009, at Dara’s request, the Gishes took the boy into their home and became his primary 

care givers because his parents could not adequately provide for him. In September, with 

Dara’s consent, the Gishes were appointed his legal guardians. Through 2012 Dara had 

frequent contact with her son, including overnight visitation. 

Dara’s son began receiving Individual Education Plans (IEPs) from the 

local school district in 2009. He received a variety of reading and language assessments 

around 2012; a neuropsychological evaluation from Dr. Kristi Fuller in 2013; and 

speech, language, and occupational therapy evaluations in January 2014. Around 

January 2014 the Gishes’ attorney requested that Dr. Alfred Collins, a licensed 

psychologist, provide an opinion whether Helena Gish was the boy’s “psychological 

parent”; Dr. Collins returned an opinion the next month that she was. In that opinion 

Dr. Collins found that the boy was “developmentally very delayed” and that although the 

boy had “made some progress over the past five years, due in large part to the efforts of 

Helena Gish,” he nonetheless “still remains far behind.” Dr. Collins further noted that 

the “Gishes have consistently provided the high level of support that [the boy] has 

required (OT, speech therapy, evaluations, etc.).” 

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Later testing — performed by Dr. Fuller in 2016 when the boy was almost 

ten years old — found “low-average general intellectual abilities,” “global deficits, with 

basic reading skills falling at an early first-grade level, and math calculation skills at an 

early second-grade level,” and “the presence of dyslexia.” Given the severity of the 

boy’s dyslexia, Dr. Fuller recommended that he continue working with a speech 

pathologist the Gishes had arranged. 

B. Proceedings 

In July 2012 Dara brought an action to terminate the guardianship, which 

the Gishes contested. Around the same time the Gishes also filed a petition to adopt 

Dara’s son. The adoption petition was denied in March 2013, and the guardianship was 

terminated in August 2014. In January 2014, after the adoption was denied but before 

the guardianship was terminated, the Gishes filed a separate complaint for custody and 

visitation, which underlies this appeal. The Gishes were represented by private counsel 

throughout the proceedings. Dara had private counsel until May 2015, when she notified 

the firm that she no longer needed their services. 

In March 2015 the parties arrived at a settlement agreement under which 

Dara was granted primary physical and sole legal custody, and the Gishes received 

regular visitation rights. The parties stipulated that “a strong and heartfelt bond” had 

developed between the boy and the Gishes and that it was in his “best interest that he 

have regular and consistent visitation” with them. But less than two weeks after the 

parties reached the agreement, Dara left the state with her son without notifying the 

Gishes and cut off all communication with them. The Gishes hired a private investigator 

and discovered that Dara and her son were in Tennessee; another family member 

subsequently informed them of Dara’s precise whereabouts. After the Gishes informed 

the superior court that Dara had violated the settlement agreement’s visitation provisions 

and left the state with the boy, the court issued an order granting them interim custody. 

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In July 2015 the Gishes traveled to Tennessee and, using the interim custody order, 

secured the assistance of local authorities in obtaining physical custody of the boy and 

bringing him back to Alaska. 

The Gishes moved to set aside the settlement agreement and resumed their 

custody action against Dara when they returned to Alaska. Trial was scheduled for 

February 2016. At a November 2015 status hearing Dara informed the court she was no 

longer represented by counsel and was having some difficulty knowing what to file; she 

had requested appointed counsel at the legal aid center but had been denied. Dara again 

brought up the issue of appointed counsel at a January 2016 pretrial conference, this time 

requesting that the court appoint her counsel under AS 25.23.180(h), which provides a 

right to counsel in parental rights termination proceedings. The court informed Dara that 

the statute did not pertain to custody determinations, and that the court knew of no 

avenue under which it might be authorized to appoint counsel in a case such as hers. 

In February 2016 the parties agreed to a temporary visitation schedule 

under which the boy would live with Dara and her new husband in Tennessee over the 

following summer. Trial was continued and a status and custody hearing was scheduled 

for July. In April the Gishes sent Dara a letter suggesting her son’s progress in 

overcoming his special needs might bejeopardized by the summer away fromhis doctors 

and therapists in Alaska and proposing an alternative visitation schedule. Dara declined 

to alter the agreed-upon schedule and in May filed a motion to enforce visitation. The 

court held a hearing and issued an order enforcing the original visitation agreement. The 

court noted Dara’s son might lose some progress he had made in therapy but was 

reassured by testimony from Dara and her new husband that they had enrolled the boy 

in a summer therapy program at the Sylvan Learning Center. 

Dara’s son spent the summer in Tennessee with Dara and her husband, a 

man she had known for only about a month before the marriage. Dara’s son did not 

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attend the program in which Dara had testified to enrolling him. In late July the court 

held the scheduled status and custody hearing. Both Helena and Howard Gish attended 

in person; Dara and her husband participated telephonically. The court took care to 

review the third-party custody legal standard with Dara at the beginning of the 

proceedings, and on numerous occasionsthecourtexplainedhearingprocedures. Helena 

and Howard Gish testified about the boy’s special needs, what actions they had taken to 

address those needs, their concerns about Dara’s capacity to care for the boy, and why 

theywereseeking custody. Dararaised concerns about theGishes’care-giving decisions 

and the safety and stability of the Gishes’ home. Her concerns about the Gishes’ care 

giving stemmed in part from her own experience being raised by the Gishes, which she 

viewed unfavorably. Dara and her husband also testified to their understanding of the 

boy’s special needs and what steps they had taken to address those needs. On crossexamination the Gishes’ attorney raised the issue of the stability of Dara’s home life, 

pressing Dara’s husband for details concerning his relationship with his own five 

children. After an argumentative exchange Dara’s husband eventually had an extended, 

loud, and profane outburst, for which he later apologized. 

Three days after the hearing concluded the superior court issued its oral 

decision on record. The court found the Gishes had proved by clear and convincing 

evidence that the boy would suffer clear detriment if sole custody were granted to Dara; 

it granted the Gishes and Dara joint legal custody (with final decision-making authority 

vested in the Gishes), granted the Gishes primary physical custody, and granted Dara 

regular visitation. Dara appeals the superior court’s final custody order. 

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III. STANDARD OF REVIEW 

“We . . . review constitutional questions de novo, adopting the rule of law 

that is most persuasive in light of precedent, reason, and policy.”1 “Likewise, ‘[w]hether 

the court applied the correct standard in a custody determination is a question of law we 

review de novo.’ ”2 

”3 “The superior court has ‘broad discretion in custody awards.’ 

Consequently, “[w]e will reverse a superior court’s custody and visitation determination 

‘only if the superior court has abused its discretion or if its controlling findings of fact 

are clearly erroneous.’ ”4

 We will find an abuse of discretion when the superior court 

“ ‘consider[s] improper factors in making its custody determination, fail[s] to consider 

statutorily mandated factors, or assign[s] disproportionate weight to particular factors 

while ignoring others.’ We review factual findings, including determinations of 

psychological parent status, for clear error.”5 Factual findings are “clearly erroneous 

when a review of the record leaves us with the definite impression that a mistake has 

1 Ross v. Bauman, 353 P.3d 816, 823 (Alaska 2015) (omission in original) 

(quoting Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (footnote omitted)). 

2 Osterkamp v. Stiles, 235 P.3d 178, 184 (Alaska 2010) (alteration in 

original) (quoting Elton H. v. Naomi R., 119 P.3d 969, 973 (Alaska 2005)). 

3 Id. at 183 (quoting In re Adoption of Missy M., 133 P.3d 645, 648 (Alaska 

2006)). 

4 Id. (quoting R.I. v. C.C., 9 P.3d 274, 277 (Alaska 2000)) (citing Skinner, 

183 P.3d at 489). 

5 Id. (alterations in original) (footnote omitted) (quoting In re Missy M., 133 

P.3d at 648) (citing Kinnard v. Kinnard, 43 P.3d 150, 153 (Alaska 2002)). 

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been made.”6 “[W]e ordinarily will not overturn a trial court’s finding based on 

conflicting evidence,” nor will we “re-weigh evidence when the record provides clear 

support for the trial court’s ruling; it is the function of the trial court, not of this court, 

to judge witnesses’ credibility and to weigh conflicting evidence.”7 

IV. DISCUSSION 

Dara challenges the superior court’s decision to award custody to the 

Gishes on three grounds: (1) she was entitled to appointed counsel; (2) the decision 

violated her Fourteenth Amendment right to direct the upbringing and education of her 

child; and (3) the superior court erred in its custody determination. 

A. Dara Was Not Entitled To Appointed Counsel. 

Dara argues that she should have received court-appointed counsel, stating 

that she “asked for [counsel] and was denied and I believe that this is one reason that I 

was unable to get my child back.” Dara raised this issue twice before the superior court. 

At a status hearing in November 2015 the court inquired why in some time it had not 

received any communication from Dara; she responded that she was not sure what she 

should file because she had no money for an attorney, and that she had gone to legal aid 

and requested an attorney but was denied. In late January 2016, about one week before 

the then-scheduled trial, Dara requested appointed counsel under AS 25.23.180(h), 

which provides a right to counsel in parental rights termination proceedings. The court 

informed her that the statute did not apply because this was a custody proceeding and 

parental rights were not being terminated. The court explained it was aware of case law 

requiring appointed counsel in custody cases where the state provided representation for 

6 Id. (citing In re Missy M., 133 P.3d at 648). 

7 In re Adoption of S.K.L.H., 204 P.3d 320, 325 (Alaska 2009) (quoting 

Tessa M. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs., 182 P.3d 

1110, 1114 (Alaska 2008)). 

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the opposing party8 but that situation did not apply, and the court was aware of no other 

avenue authorizing it to appoint counsel. 

Dara’s claim — “that when somebody is trying to take a child froma parent 

and said parent does not have the means to afford an attorney that one shall be 

appointed” — is accurate in the parental rights termination context,9 but not in a custody 

case when neither party has the benefit of state-appointed counsel.10 In our recent 

Dennis O. v. Stephanie O. decision we held that in custody cases “self-represented 

indigent parents facing opposing parents represented by private counsel are not, as a 

class, deprived of due process rights solely because they do not have counsel.”11 The 

reasoning in Dennis O. applies also in the third-party custody context; if the third party 

seeking custody does not enjoy state-appointed counsel then no “fairness concerns” 

demand, as a rule, appointing counsel for the opposing parent.12 Dara presents no 

argument causing us to reconsider that holding or to distinguish its operation in the third8 See Flores v. Flores, 598 P.2d 893, 896 (Alaska 1979) (holding “that there 

is a constitutional right to counsel” in custody cases “where the other parent has an 

attorney supplied by a public agency”). 

9 See AS25.23.180(h) (“Therespondent toapetition filed for thetermination 

of parental rights . . . is entitled to representation in the proceedings by an attorney.”). 

10 Cf. Flores, 598 P.2d at 895 (holding that in custody cases where one parent 

is represented by state-appointed counsel, “[f]airnessalonedictatesthatthe[other parent] 

should be entitled to a similar advantage”). 

11 393 P.3d 401, 409 (Alaska 2017). 

12 Id. at 408. 

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party custody context; we reject her claim that the superior court erred by denying 

appointed counsel.13 

B.	 The Superior Court Applied The Correct Constitutional And Legal 

Standard. 

1.	 The state’s third-party custody legal framework protects 

parents’ constitutional rights. 

Dara argues the superior court violated her Fourteenth Amendment 

substantive due process right “to direct the upbringing and education of [her] child[],” 

citing a number of United States Supreme Court cases establishing that right.14 Dara is 

correct that “[t]he ‘right to the care and custody of one’s own child is a fundamental right 

recognized by both the federal and state constitutions’ [that] therefore ‘falls within the 

protections of the due process clause.’ ”15 The Gishes do not contest this. 

But, as the Gishes note, we have established a legal framework in thirdparty custody cases under which parents’ constitutional rights are appropriately and 

effectively balanced against the child’s welfare.16 We have regularly applied this legal 

13 Under Dennis O. a litigant may argue an individual due process right to 

counsel given a case’s particular circumstances. See id. at 409-11. Dara has not 

suggested, and the record does not reflect,any dueprocess concerns indicatingappointed 

counsel might have been uniquely necessary in her case. 

14 See U.S. Const. amend. XIV, § 1; Troxel v. Granville, 530 U.S. 57, 65-66 

(2000); Wisconsin v. Yoder, 406 U.S. 205, 232-33 (1972); Prince v. Massachusetts, 321 

U.S. 158, 164-66 (1944); Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & 

Mary, 268 U.S. 510, 534-35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923). 

15 Alex H. v. State, Dep’t of Health &Soc. Servs., Office of Children’s Servs., 

389 P.3d 35, 48 (Alaska 2017) (footnote omitted) (quoting Seth D. v. State, Dep’t of 

Health & Soc. Servs., Office of Children’s Servs., 175 P.3d 1222, 1227-28 (Alaska 

2008)). 

16 See Evans v. McTaggart, 88 P.3d 1078, 1082, 1089-90 (Alaska 2004) 

(continued...) 

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framework in third-party custody cases without challenge to its constitutionality, and 

Dara presents no argument why we should consider a departure now.17 If the superior 

court applied the correct third-party custody legal standard in this case, then there is no 

reason to question the constitutionality of its decision. 

2. The superior court applied the correct legal standard. 

A “non-parent who has a significant connection with the child has standing 

to assert a claim for custody.”18 “[E]stablishing psychological parent status ‘is more 

demanding than the “significant connection” status that a third party must have in order 

to seek custody.’ ”19 Once standing is established, a third party seeking custody must 

“show by clear and convincing evidence that the parent is unfit or that the welfare of the 

child requires the child to be in the custody of the non-parent.”20 To satisfy the burden 

under the “welfare of the child” analysis, the “non-parent must show that the child would 

suffer clear detriment if placed in the custody of the parent.”21 In determining clear 

detriment, “analysis is not limited to examining the child’s relationship with the legal 

16 (...continued) 

(discussing constitutionality of legal framework applied in third-party custody cases; 

holding that related legal framework used in third-party visitation cases is not 

unconstitutional under relevant precedent). 

17 See, e.g., Osterkamp v. Stiles, 235 P.3d 178, 184-89 (Alaska 2010); Elton 

H. v. Naomi R., 119 P.3d 969, 975-77 (Alaska 2005); Kinnard v. Kinnard, 43 P.3d 150, 

153-55 (Alaska 2002). 

18 Evans, 88 P.3d at 1081 (quoting Buness v. Gillen, 781 P.2d 985, 988 

(Alaska 1989), overruled on other grounds by Evans, 88 P.3d at 1085 n.34 (requiring the 

clear and convincing evidence standard in third-party custody cases)). 

19 Osterkamp, 235 P.3d at 184 n.17 (quoting Evans, 88 P.3d at 1082). 

20 Id. at 185 (quoting Evans, 88 P.3d at 1085). 

21 Id. (quoting Evans, 88 P.3d at 1085). 

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parent; courts may take into account the relationship between a child and a third party.”22 

Accordingly, although “[p]sychological parent status does not entitle a third party to 

custody[,] . . . this status can help a third party prove that it would be clearly detrimental 

to a child to deny third party custody.”23 

The superior court applied this framework throughout the proceedings and 

when issuing its decision on record. Counsel for both parties submitted briefing in 

October 2014 on standing and relevant third-party custody case law. Following a March 

2015 settlement conference, the court in its findings of fact and conclusions of law 

implementing the parties’ settlement agreement noted that the parties had stipulated to 

the “strong and heartfelt bond” between Dara’s son and the Gishes, and that the Gishes 

had served as “the primary care givers of the minor child for a period in excess of five 

years.” This stipulation and the court’s conclusion that the Gishes served as primary care 

givers for the majority of the boy’s life demonstrated the “significant connection” 

between the boy and the Gishes sufficient to establish standing to seek custody.24 

The Gishes’ standing to seek custody was further established by the court’s 

later finding that the Gishes had achieved “psychological parent” status, a “more 

demanding” means of establishing standing than the significant connection test.25 In its 

July 2015 order granting the Gishes interim custody, the court found that “[b]ased upon 

22 Id. (citing J.W. v. R.J., 951 P.2d 1206, 1211 (Alaska 1998), overruled on 

other grounds by Evans, 88 P.3d at 1085 n.34 (requiring the clear and convincing 

evidence standard in third-party custody cases)). 

23 Id. at 184 n.17 (emphasis in original) (citing Buness, 781 P.2d at 989 n.8). 

24 See Buness, 781 P.2d at 986, 988 (holding that significant connection was 

“unquestionably” established when child lived with half-sister’s father several days a 

week for approximately four years and continuously for about one year). 

25 Osterkamp, 235 P.3d at 184 n.17 (quoting Evans, 88 P.3d at 1082). 

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the long and established relationship that exists between [Dara’s son] and Howard and 

Helena Gish, and in conjunction with the professional opinion and recommendations of 

Dr. Alfred Collins,” the Gishes “are the ‘psychological’ parents” of Dara’s son. The 

court reiterated its finding that the Gishes are psychological parents in its July 2016 

decision on record. In making these findings the superior court applied the correct legal 

standard to determine standing in a third-party custody case. 

The superior court likewise required the correct standard of proof and 

applied the correct substantive legal standard. The court distinguished this case from 

custody cases between two biological parents wherecustody isdetermined in accordance 

with the child’s best interests.26 The court expressly noted that it was required to make 

findings under the clear and convincing evidence standard’s “quite high burden,” rather 

than under the preponderance of the evidence standard typically applied in custody 

disputes.27 Citing a number of relevant third-party custody and visitation decisions,28 the 

26 Compare Ronny M. v. Nanette H., 303 P.3d 392, 401 (Alaska 2013) (noting 

that in a dispute between biological parents “[t]he superior court must determine custody 

in accordance with the best interests of the children” (citing AS 25.24.150(c)), with 

C.R.B. v. C.C., 959 P.2d 375, 380 (Alaska 1998) (observing that “despite an inevitable 

sacrifice of children’s best interests in cases where a nonparent can better serve those 

interests,” the higher burden of showing that “a parent is unfit or that his or her custody 

is clearly detrimental” is necessary in third-party cases to avoid the danger of taking 

children from their parents simply because authorities personally disapprove of parents’ 

lifestyles or limited means (citing Carter v. Novotny, 779 P.2d 1195, 1197 (Alaska 

1989))), overruled on other grounds by Evans, 88 P.3d at 1085 n.34. 

27 See Evans, 88 P.3d at 1085 (requiring “heightened . . . clear and convincing 

evidence standard” in “initial custody contests between parents and non-parents” rather 

than preponderance of evidence standard used in custody cases between parents). 

28 The superior court relied on Ross v. Bauman, 353 P.3d 816 (Alaska 2015);
 

Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010); Evans v. McTaggart, 88 P.3d 1078
 

(continued...)
 

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superior court noted the extremely high burden the Gishes had to surmount to 

demonstrate that the child’s welfare required them to have custody; they had to prove 

that “custody by the biological parent would be clearly detrimental to the child.” The 

court conveyed this same standard to Dara at the beginning of the trial to ensure that she 

understood what the Gishes were required to prove and that she could effectively 

represent herself. The legal standard the court conveyed to the parties and applied in its 

decisioncomportswith our established requirements;third parties seekingcustody “must 

show by clear and convincing evidence that the parent is unfit” or that “the child would 

suffer clear detriment if placed in the custody of the parent.”29 

Because the superior court applied the correct legal framework and that 

framework appropriately balances the child’s welfare against the fundamental right to 

parent, Dara’s constitutional argument fails. 

C. The Superior Court Did Not Err In Its Custody Determination. 

The superior court found the Gishes proved by clear and convincing 

evidence that Dara’s son would suffer clear detriment if Dara were given sole custody. 

The court entered a number of findings supporting that determination. Its “primary 

finding” was that the boy has special educational, emotional, and psychological needs, 

including severe dyslexia. The court also found that: (1) the Gishes have undertaken a 

number of actions to meet the boy’s special needs; (2) Dara cannot meet those needs, is 

unwilling to recognize those needs, has a history of not following through with the boy’s 

care, and her failings are attributable not to a lack of resources but rather a lack of will; 

(3) the Gishes were the boy’s primary parents for five years, they remain his 

28 (...continued) 

(Alaska 2004); Todd v. Todd, 989 P.2d 141 (Alaska 1999); and Buness v. Gillen, 781 

P.2d 985 (Alaska 1989). 

29 Osterkamp, 235 P.3d at 185 (quoting Evans, 88 P.3d at 1085). 

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psychological parents, and separating the boy from them would cause him emotional 

harm; (4) due to Dara’s “severe hatred of her parents” her “actions are not dictated by 

the welfare of” her son, and if she has custody “she will do everything to terminate the 

relationship between the grandparents and the child,” to her son’s detriment; and 

(5) Dara has an unstable home-life. Dara challenges many of the court’s controlling 

factual findings and its failure to address in its decision on record a number of facts and 

factors she considers relevant to the determination. 

Dara first argues the superior court should have considered her son’s 

purported preference to live with her. The court informed Dara at the trial’s conclusion 

that, given her son’s age and special needs, his preference would not “carry the day one 

way or the other.” The court noted that in a custody case between parents it would be 

required under AS 25.24.150 to consider her son’s preference if he were “of sufficient 

age and capacity to form a preference,”30 but under that statutory analysis most judges 

would not consider her son sufficiently mature to develop an informed preference.31 

Given the boy was only ten years old at the time of trial and there was extensive evidence 

concerning his developmental delays, the court’s finding that Dara’s son was not “of 

sufficient age and capacity to form a preference” was not clearly erroneous. There thus 

was no need for the court to address in its decision on record the boy’s purported 

preference, even assuming courts must consider that factor in the third-party custody 

context.32 

30 AS 25.24.150(c)(3). 

31 See William P. v. Taunya P., 258 P.3d 812, 816 (Alaska 2011) (affirming 

finding that children aged 10 and 11 lacked sufficient age and capacity to form 

preference). 

32 Cf. Park v. Park, 986 P.2d 205, 207 (Alaska 1999) (“While a court 

(continued...) 

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Dara next challenges the superior court’s finding that she has an unstable 

home. She contends her son was with her and her husband “for the entire summer and 

was healthy, reading on his own, [and] took to [her] husband to the point that he calls 

him Dad.” The court relied on the following evidence for its unstable home-life finding: 

Dara married a man in Tennessee after knowing him for only 30 days; her husband has 

5 children under the age of 11 by 3 different women yet has visitation with none; and her 

husband “exhibited explosive anger,” cursing in court at counsel and the parties, all in 

front of Dara despite her earlier testimony that she suffered from post-traumatic stress 

disorder. The court found that behavior was not “an indication that the biological mother 

. . . comes from a stable home environment at this point.” Dara argues no adverse 

inference should be drawn from her husband’s outburst because he “was asked 

relentlessly about his children that are not part of this case and [he] asked nicely 

numerous times that they leave his children out of it but the[y] beat on him about it until 

he did have that outburst,” and “anybody when pushed enough would have done the 

same thing.” But the superior court was entitled to draw reasonable inferences from the 

husband’s testimony and demeanor at trial;33 it is not unreasonable to be concerned that 

32 (...continued) 

determining custody [between biological parents] must always consider each of these 

[AS 25.24.150(c)] factors, it need not refer to all of them in explaining its custody 

decision.”); Duffus v. Duffus, 932 P.2d 777, 779 (Alaska 1997) (“While trial courts are 

encouraged to state all findings in their written orders, they are not required to do so as 

long as the basis for their decisions is clear from the record and susceptible to review.”). 

33 See Whitesides v. State, Dep’t of Pub. Safety, Div. of Motor Vehicles, 20 

P.3d 1130, 1136 (Alaska 2001) (“The significance of live testimony and demeanor 

evidence has been long recognized. Blackstone explained that, ‘[by] examination of 

wittnesses viva voce, in the presence of all mankind, . . . and this [method] only, the 

persons who are to decide upon the evidence have an opportunity of observing the . . . 

behaviour. . . and inclinations of the witness.’ ” (first omission and first and second 

(continued...) 

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if the husband is unable to control his temper in a courtroom he may also be unable to 

do so in a child’s presence. The court’s finding that Dara had an unstable home-life was 

reasonable and grounded in testimony; it was not clearly erroneous. 

Dara next challenges the superior court’s findings that she is unwilling to 

recognize her son’s special needs and is ill-equipped to meet his needs. She argues that 

she and her husband have done everything in their power to care for her son, and that she 

failed to enroll her son in therapy during the summer of 2016 — despite her husband’s 

insurance providing coverage — only because the boy was with her for a relatively short 

time, making treatment impractical. But the superior court relied on Dara’s own actions 

and testimony, which contradict the explanation she offers on appeal. When the court 

agreed to permit her son to remain in Tennessee for a summer in the face of concerns the 

Gishes raised, the court acknowledged that the boy “may lose some of the progress he 

has gained through the therapy he has completed.” Despite these misgivings the court 

allowed Dara to take custody for the summer because she and her husband assured the 

court they had enrolled the boy in summer therapy. “Despite that agreement,” the court 

noted at trial, Dara’s son never attended the courses, and Dara’s only explanation was 

that “his spot got taken by someone else.” 

Referencing tests indicating Dara’s son was at a first- or second-grade level 

when he should have been entering the fifth grade, the court asked Dara whether she 

recognized her son’s developmental delays and whether she thought they were a real 

problem. Dara responded by minimizing his needs, equivocating, and noting that many 

of her family members had some sort of delay. When asked whether she had read the 

expert reports on her son and whether she believed they had validity, Dara again 

(...continued) 

alterations in original) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *373)). 

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equivocated. She focused on her belief that Dr. Collins’s report was biased, noted that 

her father thought she had dyslexia simply because she did not enjoy reading, and 

informed the court that a friend with dyslexia told her people sometimes just grow out 

of it. When the court asked Dara what she had done over the summer to address her 

son’s dyslexia, she replied only that she had been working with him and working on his 

reading. This testimony, and Dara’s failure to provide her son with therapy over the 

summer as she had assured the court she would, support the court’s decision.34 Its 

finding that Dara is unwilling and ill-equipped to address her son’s needs is not clear 

error. 

Dara also argues that her admittedly “very unhealthy relationship” with her 

parents is not her fault and that it should not be held against her. She contends they 

physically and emotionally abused her, but denies she will put her antipathy toward them 

above her son’s needs; she has “no intention of cutting [her] parents out of [her son’s] 

life as he does love them.” Regardless of fault, our inquiry centers on the child’s 

welfare; the relevant question is which party is more likely to detrimentally cut the boy 

offfroman emotionallyand psychologically important relationship.35 Thesuperior court 

found that the Gishes are psychological parents to Dara’s son, and we have stated that 

“courts may take into account the relationship between a child and a third party in 

34 In re Adoption of S.K.L.H., 204 P.3d 320, 325 (Alaska 2009) (“When 

reviewing factual findings . . . we will not re-weigh evidence when the record provides 

clear support for the trial court’s ruling; it is the function of the trial court . . . to judge 

witnesses’ credibility and to weigh conflicting evidence.” (quoting Tessa M. v. State, 

Dep’t of Health &Soc. Servs., Office of Children’s Servs., 182 P.3d 1110, 1114 (Alaska 

2008))). 

35 See Osterkamp v. Stiles, 235 P.3d 178, 186 (“[W]hen a child’s ‘strongest 

psychological bonding’ is with third parties, ‘it would be detrimental to [the child] to 

destroy those bonds.’ ” (second alteration in original) (quoting Todd v. Todd, 989 P.2d 

141, 143 (Alaska 1999))). 

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determining whether awarding custody to the legal parent . . . would result in clear 

detriment to the child.”36 The superior court also found that, if granted sole custody, 

Dara would “do everything to terminate the relationship between the grandparents and 

the child,” to her son’s detriment. 

Evidence in the record supports this finding. The parties, stipulating to the 

“strong and heartfelt bond” between Dara’s son and his grandparents, agreed at a March 

2015 settlement hearing that Dara would have primary custody of the boy, and that the 

grandparents would have regular visitation so he would not be traumatized by an abrupt 

end to contact with them. But less than two weeks after this settlement, Dara 

“intentionally did abscond” from the state, cutting off all contact between the boy and 

his grandparents until the Gishes tracked Dara down several months later. When the 

court inquired why Dara had cut off all contact, she responded that she asked her son 

whether he wanted to talk to the Gishes and he said “no,” and that she was not going to 

otherwise contact the Gishes because of her dislike for them. And in July 2015 

Dr. Collins testified that Dara’s decision to move away and cut off contact was 

“detrimental to [the boy’s] welfare and has likely created significant trust issues between 

[the boy] and [Dara] that may lead to further difficulties in their relationship in the 

future.” Given this evidence and the superior court’s responsibility to judge witnesses’ 

credibility,37 it was not clear error to find that Dara, if given sole custody, would 

terminate her son’s relationship with the Gishes and that such action would be 

detrimental to the boy’s welfare. 

36 Id. at 185 (citing J.W. v. R.J., 951 P.2d 1206, 1211 (Alaska 1998), 

overruled on other grounds by Evans v. McTaggart, 88 P.3d 1070, 1085 n.34 (Alaska 

2004)). 

37 See In re S.K.L.H., 204 P.3d at 325 (quoting Tessa M., 182 P.3d at 1114). 

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Dara next suggests the bond and “psychological parent” status between her 

son and the Gishes should be discounted because she has been “fighting to get [her] child 

back since 2012,” but the Gishes have used litigation “so that they would be able to keep 

[her] son long enough to validate their claim” to psychological parent status. We have 

held that “the relevant point in time for establishing psychological parent status is the 

time when a complaint for custody or visitation is filed.”38 By January 2014, when this 

action was initiated, the Gishes had served as primary care givers for almost five of the 

boy’s eight years. The superior court expressly referenced this five-year period in 

finding that the Gishes had established “psychological parent” status. Relying on the 

five-year period ending on the date the Gishes filed their complaint for custody was not 

legal error.39 

Dara finally argues the superior court’s order should be reversed because 

the Gishes have “an unhealthy relationship with [her] child” and a “severely unstable 

home.” Among the allegations Dara raises to support these contentions are: Helena Gish 

at times allows the boy to sleep in her bed; the Gishes “sleep in separate bedrooms,” a 

sign of instability; Helena is scared of Howard; and the Gishes are “both severely 

deceitful and manipulative.” These factual allegations are necessarily either new on 

appeal or were litigated at trial. If the former, we will not consider arguments based on 

38 Osterkamp, 235 P.3d at 188. 

39 We note that it is unlikely the superior court’s analysis would have changed 

if it had assessed whether the Gishes had established psychological parent status by the 

time Dara commenced litigation in 2012, rather than by the time the Gishes filed their 

complaint 18 months later, and a finding that they had would not have been clearly 

erroneous. By 2012 the Gishes had served as primary care givers and legal guardians 

for approximately half the boy’s life. 

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those allegations.40 If the latter, given that Dara’s challenges to the superior court’s 

controlling factual findings, as discussed above, do not demonstrate clear error, any 

conflicting contentions argued on appeal concerning the relative stability and felicity of 

the Gishes’ home are insufficient to overturn the court’s clear detriment finding.41 As 

noted above the court correctly relied on the third-party custody legal framework we 

have established. And as outlined in this section the court exercised a high degree of 

care in its role as fact-finder, entering detailed findings under those exacting third-party 

custody standards. The court did not err in awarding the Gishes joint legal and primary 

physical custody. 

V. CONCLUSION 

We AFFIRM the superior court’s decision. 

40 See Reilly v. Northrop, 314 P.3d 1206, 1214 (Alaska 2013) (“We ‘will not 

consider on appeal new arguments which . . . “depend on new or controverted facts,” . . . 

unless the new issue raised establishes plain error.’ ” (quoting Krossa v. All Alaskan 

Seafoods, Inc., 37 P.3d 411, 418-19 (Alaska 2001))). 

41 See In re S.K.L.H., 204 P.3d at 325 (“[W]e ordinarily will not overturn a 

trial court’s finding based on conflicting evidence, and we will not re-weigh evidence 

when the record provides clear support for the trial court’s ruling . . . .” (quoting Tessa 

M., 182 P.3d at 1114)). 

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