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 

NURIA MENGISTEAB, 

Appellant, 

v.	 

AHLA-TAKI OATES, 

Appellee.	 

) 

) Supreme Court No. 15986 

Superior Court No. 3AN-13-08093 CI 

O P I N I O N 

 

No. 7267 – August 3, 2018 

) 

) 

) 

) 

) 

) 

)
 

)
 

Appeal from the Superior Court of the State of Alaska,
 

Third Judicial District, Anchorage, Patrick J. McKay, Judge. 


Appearances: Nuria Mengisteab, pro se, Anchorage, 

Appellant.* 

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

and Carney, Justices. 

STOWERS, Chief Justice. 

I. INTRODUCTION 

Nuria Mengisteab filed a motion to modify custody to relocate with the 

parties’ young son to another state, and then moved two days later. After several months 

the superior court ordered that the child return to Alaska and conditionally awarded 

* The appellee, Ahla-Taki Oates, filed a pro se motion for reconsideration of 

our decision to accept Mengisteab’s late-filed notice of appeal. Oates did not file a brief 

on the merits of the case or otherwise participate in this appeal. 
 

 

 

 

 

primary custody to the father if Mengisteab chose to remain out-of-state. Appealing pro 

se, Mengisteab argues that the superior court erred in several respects. We conclude that 

none of her arguments have merit, except for her contention that the court failed to 

consider the effect separation from his mother would have on continuity and stability in 

the child’s life. Because the court was required to consider the child’s best interests 

based on the assumption that Mengisteab would remain out-of-state, we reverse and 

remand for further proceedings. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Saul was born in Alaska in March 2013 to Nuria Mengisteab and Ahla-Taki 

Oates.1 Mengisteab and Oates never married, nor have they lived together. Mengisteab 

also has two older sons and an adult daughter from two other relationships. Oates is 

married to another woman and is raising three other children. 

B. Proceedings 

In July 2013 Oates filed a complaint requesting sole legal and primary 

physical custody of Saul with visitation by Mengisteab to be determined by the court. 

Mengisteab responded by requesting shared legal custody and primary physical custody. 

She also requested that Oates’s visitation be limited to two days a week for two hours a 

day because Saul was breast-feeding. The parties participated in mediation and entered 

into an interim custody and child support agreement in September, giving Mengisteab 

primary physical custody, giving Oates visitation, and obligating Oates to pay $500 per 

month in child support for October and November. At a hearing in November to 

determine whether the parties could resolve any of their issues without trial, the court 

was informed that Mengisteab planned to move to Las Vegas in February 2014. 

1 We use a pseudonym for the child’s name to protect his privacy. 

-2- 7267 
 

 

 

 

 

 

 

 

 

 

In February 2014 the superior court held a half-day custody trial. 

Mengisteab testified that while she earlier had planned on moving out of state, she was 

not going to do so at that time, but she requested primary physical custody of Saul 

because it was in his best interests. She also alleged that Oates had a drinking problem 

and that his wife abused heroin. Oates testified that he sometimes had a few drinks at 

home with his family but “never did drugs” and “never had any abuse problems.” 

Oates’s wife testified that she had used illegal substances in the past but denied an abuse 

problem. Oates and Mengisteab’s sister both testified that on several occasions when 

Oates had scheduled visitation, Mengisteab refused to let him see Saul. Testimony by 

both Mengisteab and her sister also indicated that Mengisteab was resistant to using a 

breast pump so that Saul could remain on his feeding schedule while Oates exercised his 

visitation; this made it difficult for Oates to exercise any prolonged visitation with Saul. 

After the conclusion of the hearing, the court made written findings on all 

the statutory best interest factors. 2 The court found that (1) Saul had no special needs; 

(2) both parents were capable and desirous of meeting Saul’s needs; (3) Saul’s 

3 preference was not applicable; (4) love and affection existed between Saul and each

parent; (5) the length of time Saul had lived in a stable, satisfactory environment and the 

desirability of maintaining continuity at the time favored Mengisteab as Saul had 

primarily resided with Mengisteab in a stable, satisfactory environment; (6) Mengisteab 

was clearly reluctant to facilitate an open relationship between Oates and Saul except on 

her restrictive terms; (7) there was no substantiated evidence of domestic violence, child 

abuse, or child neglect; (8) there was no substantiated evidence of substance abuse; and 

2 AS 25.24.150(c) requires the court to consider the best interests of a child 

based on a set of factors when making custody decisions. 

3 The child’s preference is only a relevant factor “if the child is of sufficient 

age and capacity to form a preference.” AS 25.24.150(c)(3). 

-3- 7267
 
 

 

 

 

 

 

 

 

 

 

 

 

(9) Mengisteab’s testimony was less persuasive because of her agenda to limit Oates’s 

time with Saul, but she was a good provider and had met Saul’s needs. Based on these 

findings, the court awarded primary physical custody to Mengisteab and established a 

visitation schedule for Oates. 

At the end of May 2014 Mengisteab filed a motion to modify custody. She 

informed the court that she would be moving out of state, that “[t]he current custody 

agre[e]ment will no longer work,” and she repeated her concern that “there[was] 

substance and alcohol use in [Oates’s] home.” She also requested back child support 

from May 2013 to September 2013, indicating that during the “Feb[ruary] 2014 court 

hearing, child support in arrears was not addressed.” Shortly after filing her motion, 

Mengisteab left Alaska with Saul without informing the court or Oates where she would 

be residing. She later testified that the initial plan was to move with her boyfriend to Las 

Vegas, where her boyfriend’s parents as well as her ailing grandfather lived, but she and 

her boyfriend had split up and she ended up staying in Las Vegas for only two days. She 

then moved to Olympia, Washington where she had previously lived for ten years, where 

she had given birth to two of her children, and where she had extended family. She also 

indicated she had secured a job and begun taking classes to renew a medical assistant 

license she had obtained in Washington in 2002. 

Due to several scheduling and communication conflicts, the court was 

unable to hold a custody modification hearing until early October 2014, which continued 

in late November. During the October portion of the hearing, the parties had a 

contentious discussion about visitation and back child support. 

After the November portion of the hearing, the court issued an oral ruling 

allowing Oates to travel to Washington to visit Saul at least three times before June 2015 

and authorizing half of the travel expenses to be credited against any child support Oates 

owed. The court ordered that Saul was to return to Alaska by July 2015 and indicated 

-4- 7267
 
 

 

 

 

 

 

 

 

that if Mengisteab chose to return as well, the court would reevaluate visitation at that 

time. The court did not resolve the issue of back child support at the hearing. 

The court thereafter issued a written order, memorializing the oral ruling and 

elaborating on its custody decision: 

Nothing has convinced the Court to change the 

findings in the decision concerning mother’s unwillingness 

to let father be involved in [Saul’s] life. The Court 

specifically finds that mother’s move was motivated, in great 

part, by a desire to separate [Saul] from his father — or at 

least make it difficult to allow his involvement in [Saul’s] 

parenting. Mother has no substantial ties to Washington. 

She lived and worked in Alaska for 5 years prior to her move. 

A substantial change in circumstances has occurred — 

mother unilaterally has moved out of state without 

notification. Father’s visits have been effectively terminated 

or diminished by her move. The Court finds this is not in 

[Saul’s] best interests. [Saul’s] best interests would best be 

served by having both parents available to [him]. If left in 

mother’s primary custody in Washington, the court believes 

that mother would continue to interfere with father’s access 

and parenting of [Saul]. 

The Court finds that it will be in [Saul’s] best interest 

to return to Alaska by July 15, 2015. If mother moves back 

with [Saul], the 2/10/14 decision shall control visits. If 

mother doesn’t move back, father will have primary physical 

custody and the parents shall submit proposed visitation plans 

to ensure mother’s continued involvement in [Saul’s] life. 

Mengisteab appeals. She argues the superior court erred in (1) finding that 

Mengisteab’s move out of state was primarily motivated by a desire to keep Saul’s father 

away from Saul; (2) finding that there was no evidence of substance abuse in Oates’s 

household; (3) failing to consider the potential consequences to Saul of separation from 

his mother were Mengisteab to remain out of state; (4) calculating child support; 

-5- 7267
 
 

 

 

 

 

(5) establishing visitation and addressing associated costs; and (6) demonstrating alleged 

bias against Mengisteab. 

III. STANDARD OF REVIEW 

Trial courts have “broad discretion in deciding child custody disputes”4

 and 

in determining whether a proposed child custody modification is in the best interests of 

the child.5 We will overturn a court’s best interests determination “only if the trial court 

abused its discretion or if the fact findings on which the determination is based are 

clearly erroneous.”6 “A finding of fact is clearly erroneous only when a review of the 

entire record leaves us with a definite and firm conviction that the trial court has made 

a mistake.”7 When reviewing a custody decision, we will find an abuse of discretion “if 

the trial court considered improper factors in making its custody determination, failed to 

consider statutorily mandated factors, or assigned disproportionate weight to particular 

factors while ignoring others.”8 We review de novo whether the trial court applied the 

correct legal standard.9 

4 Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (quoting 

Melendrez v. Melendrez, 143 P.3d 957, 959 (Alaska 2006)). 

5 Rego v. Rego, 259 P.3d 447, 452 (Alaska 2011) (citing Ebertz v. Ebertz, 

113 P.3d 643, 646 (Alaska 2005)). 

6 Id. (citing Ebertz, 113 P.3d at 646). 

7 Stephanie W., 274 P.3d at 1189 (quoting Evans v. Evans, 869 P.2d 478, 479 

(Alaska 1994)). 

8 Id. (quoting Evans, 869 P.2d at 479-80). 

9 Rego, 259 P.3d at 452 (citing McQuade v. McQuade, 901 P.2d 421, 423 n.3 

(Alaska 1995)). 

-6- 7267
 
 

 

 

 

We review visitation orders under an abuse of discretion standard.10 “A 

court abuses its discretion if it issues a decision that is ‘arbitrary, capricious, manifestly 

unreasonable, or . . . stems from an improper motive.’ ”11 “We review de novo the 

question of whether a judge appears biased, which is assessed under an objective 

standard.”12 

IV. DISCUSSION 

A. The Two Step Moeller-Prokosch Approach 

We have established a two-step approach for determining the best interests 

of a child in a custody dispute where one parent plans to relocate out of state with the 

child.13 The first step is to determine whether the planned move is “legitimate,” which 

we have defined as “not primarily motivated by a desire to make visitation . . . more 

difficult.” 14 The second step is to determine what is in the best interests of the child in 

10 Red Elk v. McBride, 344 P.3d 818, 822 (Alaska 2015) (citing Skinner v. 

Hagberg, 183 P.3d 486, 489 (Alaska 2008)). 

11 Shea v. State, Dep’t of Admin., Div. of Ret. & Benefits, 204 P.3d 1023, 1026 

(Alaska 2009) (alteration in original) (quoting Dobrova v. State, Dep’t of Revenue, Child 

Support Servs. Div., 171 P.3d 152, 156 (Alaska 2007)). 

12 Wells v. Barile, 358 P.3d 583, 588 (Alaska 2015) (quoting Sagers v. 

Sackinger, 318 P.3d 860, 863 (Alaska 2014)). 

13 Moeller-Prokosch v. Prokosch (Moeller-Prokosch I), 27 P.3d 314, 316 

(Alaska 2001); see also Rego, 259 P.3d at 453-55; Eniero v. Brekke, 192 P.3d 147, 150 

(Alaska 2008) (citing McQuade, 901 P.2d at 423-24). 

14 Moeller-Prokosch I, 27 P.3d at 316 (alteration in original) (quoting House 

v. House, 779 P.2d 1204, 1208 (Alaska 1989)); see also Eniero, 192 P.3d at 150 (quoting 

Moeller-Prokosch I, 27 P.3d at 316). 

-7- 7267
 
 

 

 

 

 

 

 

 

 

 

 

light of all relevant statutory best interests factors and the reasons for the relocation.15 If 

the move is legitimate, the court is not allowed to hold the move against a relocating 

parent, but if the move is primarily motivated by a desire to frustrate visitation, the court 

must take that motivation into account.16 In conducting the best interests analysis in this 

context, the court must perform a “symmetric” analysis,17 which means the court must 

assume that the move in question will take or has taken place and “make a determination 

as to whether it would be in the best interests of the parties’ [child] to be in the physical 

custody of [one parent] or [the other]” in their respective locations.18 

1.	 The superior court did not clearly err in finding that 

Mengisteab’s move was primarily motivated by a desire to 

frustrate visitation. 

The superior court applied the first step in our two-step approach and found 

that Mengisteab’s move was primarily motivated by a desire to deprive Oates of his 

ability to parent Saul.19 Mengisteab argues that the court erred in making this finding. 

We disagree. 

15 See Moeller-Prokosch v. Prokosch (Moeller-Prokosch II), 53 P.3d 152, 157 

(Alaska 2002); Moeller-Prokosch I, 27 P.3d at 316. 

16 Moeller-Prokosch II, 53 P.3d at 157 (citing Moeller-Prokosch I, 27 P.3d 

at 316); Rego, 259 P.3d at 454 (“[W]e made it clear that the superior court may not hold 

a legitimate move against a relocating parent. The Moeller-Prokosch cases set the 

governing standard for custody decisions involving parental relocation. Once a parent 

has shown that the decision to relocate is a legitimate one, then that parent is not required 

to defend the move a second time by showing that life with that parent is superior to life 

with both parents in the same city.” (footnotes omitted)). 

17 Moeller-Prokosch v. Prokosch (Moeller-Prokosch III), 99 P.3d 531, 535-36 

(Alaska 2004). 

18 Moeller-Prokosch II, 53 P.3d at 153. 

19 See Eniero, 192 P.3d at 150 (citing Moeller-Prokosch I, 27 P.3d at 316). 

-8-	 7267
 
 

 

 

 

While Mengisteab offered several legitimate reasons for her move, 

including social connections, family relationships, and schooling opportunities in 

Washington, the record provides clear support for the court’s finding that Mengisteab’s 

move was primarily motivated by an illegitimate purpose. Mengisteab repeatedly 

changed her plans about when she would leave Alaska, did not provide contact 

information or adequate notice of her move to the court, and did not provide either the 

court or Oates with a forwarding address. These actions led the court to find that 

Mengisteab was not credible and that she was motivated by a desire to interfere with 

Oates’s ability to parent. 

The court’s ultimately unfavorable determination with regard to 

Mengisteab’s move was made in the context of other instances evident from the record 

where Mengisteab resisted allowing Oates to visit with Saul, such as her repeated 

cancelling of scheduled visitations and her refusal to use a breast pump to accommodate 

Oates’s visitations into Saul’s feeding schedule. This context supports the court’s 

ultimate finding with respect to Mengisteab’s motivations. 

Mengisteab argues that the court erred in finding that she had “[n]o 

substantial ties to Washington.” Mengisteab testified that she previously lived in 

Washington for ten years, she still had all her friends from when she was 18, her 

children’s aunts lived in Washington, she gave birth to two of her children there, and she 

had obtained a medical assistant license in Washington that she could renew after taking 

classes. Thus, she argues it was clear error for the court to find that she had no 

substantial ties to Washington. But even if this specific finding was clearly erroneous, 

in the larger context this error was harmless and does not undermine the abundant 

support the record offers for the court’s ultimate finding that Mengisteab’s primary 

purpose for moving was to undermine a relationship between Saul and Oates, especially 

considering Mengisteab had spent the five most recent years of her life living and 

-9- 7267
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

working in Anchorage. We conclude the superior court did not clearly err in finding that 

Mengisteab’s move was primarily motivated by a desire to interfere with Oates’s 

visitation and ability to parent. 

More broadly, Mengisteab suggests that the superior court’s finding 

impermissibly restricted where she could live with her children and her family. We have 

held that it would be error for a trial court to restrict where a parent can live.20 A trial 

court does, however, have the authority to determine where a child will live by granting 

custody to a parent remaining in Alaska, so long as that determination is in the best 

interests of the child. In this case, the superior court clearly stated in the November 2014 

custody modification hearing that it could not “order Ms. Mengisteab to be back. But 

[it could] order [Saul] to be back.” This demonstrates that the court correctly applied this 

aspect of our case law, attempting to use its order to effectuate the best interests of Saul, 

not to control the location of Mengisteab. The superior court’s finding that Mengisteab’s 

move was primarily motivated by a desire to frustrate visitation and its resulting grant 

of custody to Oates may have restricted where Mengisteab could live with Saul, but it did 

not place any impermissible restrictions on her ability to relocate. 

2.	 It was legal error not to conduct a symmetrical analysis of the 

potential effect on continuity and stability in Saul’s life. 

Mengisteab argues that “[r]emoving [Saul] from his mother and brother[]s 

would have been traumatic.” She asserts that this is “not in the best interest of [Saul] and 

would have caused severe separation anxiety.” In support, she claims that Saul had 

“fully lived with [her] since the day he was born” and “[a]t the time of the court decision 

[Saul] was not even 2 yet and hadn’t had contact with his father in over 9 months.” She 

adds that “[Saul] is well bonded” to his two brothers, that the court “awarded [her] full 

See Moeller-Prokosch I, 27 P.3d at 317 (“We conclude that the trial court 

does not have the authority to place restrictions on a parent’s ability to relocate . . . .”). 

-10-	 7267 

20 
 

 

 

 

 

 

 

physical custody,” and that her “extended family love[s] [Saul] and cares for him.” We 

agree with Mengisteab that the court erred in failing to adequately consider the effect 

living in Alaska without his mother and siblings would have on continuity and stability 

in Saul’s life. 

A symmetrical analysis does not require detailed parallel findings on every 

best interests factor.21 In determining a child’s best interests, “the superior court need 

not mention each factor by name; it is sufficient if the court’s findings provide ‘a clear 

indication of the factors [that the court] considered important in exercising its discretion 

or allows us to glean from the record what considerations were involved.’ ”22 And the 

court may give enhanced attention to a factor it considers particularly relevant to a 

child’s best interests, as long as it does not assign “disproportionate weight to particular 

factors while ignoring others.”23 

Despite this flexibility, in the Moeller-Prokosch line of cases we expressed 

particular concern that the court conduct a symmetrical analysis with regard to a child’s 

relational and geographical stability.24 In Moeller-Prokosch III, while we acknowledged 

that in its best interests analysis “[t]he superior court did recognize that [the child] would 

be devastated if he had to move to Florida away from [his father],” we concluded that the 

21 See Rego, 259 P.3d at 455 (“While the superior court’s analysis does not 

detail every aspect of [the child’s] future in Alaska and in New Jersey, the court gives 

sufficiently detailed and ‘symmetric consideration’ to [the child’s] experience if [the 

father] took him to New Jersey or relocated to New Jersey without him.”). 

22 Caroline J. v. Theodore J., 354 P.3d 1085, 1092 (Alaska 2015) (alteration 

in original) (quoting Rosenblum v. Perales, 303 P.3d 500, 504 (Alaska 2013)). 

23 Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (quoting 

Evans v. Evans, 869 P.2d 478, 479-80 (Alaska 1994)). 

24 See Moeller-Prokosch III, 99 P.3d 531, 535 (Alaska 2004). 

-11- 7267
 
 

 

 

 

 

 

 

court erred because it “did not discuss the corresponding effect on [the child] if he had 

to stay in Alaska after [his mother] moved to Florida.”25 In the parent relocation context, 

we also warned that a “continuity test centered entirely on the child’s geographical 

stability would always favor placing the child with the non-moving parent,” and 

instructed the court to also consider relational aspects of stability. 26 We explained that 

“the impact of separation is . . . properly considered as part of the stability analysis under 

the fifth statutory factor” provided in AS 25.24.150(c)(5),27 which requires the trial court 

to consider “the length of time the child has lived in a stable, satisfactory environment 

and the desirability of maintaining continuity.” This stability analysis, we explained, 

“requires symmetric consideration of the consequences to [the child] both if [the moving 

parent] leaves with him and if [the moving parent] leaves without him.’ ”28 

Consequently, the superior court here was required to evaluate and 

symmetrically analyze the best interest factors clearly affected by Mengisteab’s move, 

especially the stability factor singled out in the Moeller-Prokosch line of cases.29 The 

court’s February 2014 order, which was incorporated by reference into its November 

25 Id. In Moeller-Prokosch III, we characterized the court’s error as abuse 

of discretion. Id. However, as discussed further below, we also explained that 

AS 25.25.150(c)(5) “requires” and “commands” a comprehensive inquiry into stability 

and continuity, with no room for discretion to entirely forgo a symmetrical analysis. 

Id. at 534-35. Accordingly, while a custody award is subject to judicial discretion and 

reviewed for abuse thereof, it is legal error not to conduct the required comprehensive 

and symmetrical stability analysis. 

26 Id. at 535 (quoting Meier v. Cloud, 34 P.3d 1274, 1279 (Alaska 2001)). 

27 Id. at 535 n.17. 

28 Id. at 536. 

29 Id. at 534-35. 

-12- 7267
 
 

 

 

2014 order, made specific findings about each of the statutorily required best interest 

factors. With respect to most of these factors, it was acceptable for the court in its 

November order to rely on its prior best interests findings because the record gives no 

clear indication that they changed in the eight months between February and November 

or in light of Mengisteab’s illegitimate move.30 We understand the trial court’s omission 

of these factors as an indication that it considered them largely unchanged, a 

consideration we can “glean from the record.”31 

But Mengisteab’s move clearly had potential to affect continuity and 

stability in Saul’s life. 32 The superior court never explicitly discussed this factor or the 

effect that separating Saul from his mother were she to remain in Washington would 

have on him as required by our Moeller-Prokosch decisions. Saul had been in 

Mengisteab’s primary physical custody from birth until the court’s November 2014 order 

was issued. In February 2014 the court gave Mengisteab custody of Saul primarily 

because stability and continuity in Saul’s life favored keeping him with Mengisteab. By 

November 2014 Oates and Saul were largely strangers, as the superior court 

acknowledged when it ordered Skype visits between Saul and Oates before their planned 

visitation, so that Saul would be familiar with Oates when Oates flew to Seattle and 

removed him from Mengisteab’s physical custody. 

30 The record supports that in November 2014 Saul still had no special needs, 

the child’s preference regarding custody remained inapplicable, both parent-child 

relationships remained loving, and there was no substantiated evidence of domestic 

violence, neglect, or substance abuse.

31 Caroline J. v. Theodore J., 354 P.3d 1085, 1092 (Alaska 2015) (quoting 

Rosenblum v. Perales, 303 P.3d 500, 504 (Alaska 2013)). 

32 See AS 25.24.150(c)(5). 

-13- 7267
 
 

 

 

 

 

 

 

 

 

The record does not indicate how the court’s position on this factor changed 

since February 2014 or how the court weighed it relative to other factors in modifying 

custody. The only clues to the superior court’s reasoning on this issue are its abbreviated 

November 2014 best interests analysis, its February 2014 best interests analysis, and 

testimony from various hearings. This information is insufficient for determining the 

court’s position on this factor. As we have explained previously, the absence of any 

discussion of the impact on the child of separation from the out-of-state parent raises 

some question whether the best interests analysis was based on the assumption that the 

separation would take place, as we require.33 To ignore this relational facet of stability34 

ignores both the primary concern that a symmetrical analysis is intended to address and 

an important component of the best interests analysis in this case. 

We recognize that the court found that if Saul were “left in [his] mother’s 

primary custody in Washington, . . . [Mengisteab] would continue to interfere with 

[Oates’s] access and parenting of [Saul].” We have also previously explained that “[i]t 

is essential to have a custodial parent willing to foster an open relationship with the other 

parent when a great distance separates the child[] from the non-custodial parent.”35 Even 

so, the trial court may not rely on one factor to the exclusion of all others.36 The trial 

33 See Moeller-Prokosch III, 99 P.3d 531, 535 (Alaska 2004). 

34 See Barrett v. Alguire, 35 P.3d 1, 9 (Alaska 2001) (“The trial court’s 

consideration of the stability of the children’s environment in a custody modification 

case can encompass a multitude of factors, including, but not limited to, the relationship 

with the custodial parent, the home provided by the custodial parent, the children’s 

school, the community of friends and family, the cultural community, and the children’s 

relationship with the non-custodial parent. It also includes stability of place.”). 

35 Silvan v. Alcina, 105 P.3d 117, 121 (Alaska 2005). 

36 See Stephanie W. v. Maxwell V., 274 P.3d 1185, 1189 (Alaska 2012) (citing 

(continued...) 

-14- 7267
 
 

 

 

 

 

 

 

 

court was required to consider the potential consequences to Saul both if he were to live 

in Washington with Mengisteab and if he were to live in Alaska without her,37 and it was 

legal error not to do so. 

We assume, but do not know, that Mengisteab now resides in Alaska. We 

also are aware that considerations of stability and continuity in Saul’s life may well have 

changed since the last hearing. On remand, provided that Mengisteab still wishes to 

move, the superior court must conduct a symmetrical best interests analysis, including 

full consideration of the effect separating Saul from his mother would have on continuity 

and stability in his life were she to ultimately move to, or remain in, Washington. The 

court may take additional evidence as necessary to conduct this symmetrical analysis. 

B.	 Mengisteab’s Other Claims Of Error 

1.	 The superior court did not clearly err in finding there was no 

substantiated evidence of substance abuse in Oates’s household. 

Mengisteab argues that the superior court erred with regard to “[s]afety 

concerns involving drug and alcohol use in [the] father[’]s home.” As part of its best 

interests analysis, the court should consider evidence of substance abuse.38 However, 

“the scope of [this] inquiry is limited to facts directly affecting the child’s well-being.”39 

In its February 2014 order the court found that there was no evidence of substance abuse 

36 (...continued)
 

Evans v. Evans, 869 P.2d 478, 479-80).
 

37 Cf. Moeller-Prokosch III, 99 P.3d at 535-36. 

38 See AS 25.24.150(c)(8). 

39 S.N.E. v. R.L.B., 699 P.2d 875, 878 (Alaska 1985); see AS 25.24.150(c)(8) 

(providing that the best interests analysis should consider “evidence that substance abuse 

by either parent or other members of the household directly affects the emotional or 

physical well-being of the child”); AS 25.24.150(d) (“In awarding custody the court may 

consider only those facts that directly affect the well-being of the child.”). 

-15-	 7267
 
 

 

 

 

 

 

 

 

 

 

 

substantiated by a preponderance of the evidence, and this finding is supported by the 

record. Oates testified that he “never had any abuse problems.” Oates’s wife testified 

that she had used substances in the past but denied an abuse problem. During the 

November 2014 hearing, the court pointed out that the only evidence supporting that 

there was substance abuse by Oates, his wife, or anyone else connected with Oates’s 

household was Mengisteab’s own allegations. The court’s factual findings, including its 

credibility findings — especially when the court makes those findings based on oral 

testimony — are due particular deference. 40 Based on this record, we conclude that the 

court did not clearly err in finding there was no substantiated evidence of substance 

abuse in Oates’s household. 

2.	 The superior court did not abuse its discretion in calculating 

child support. 

Mengisteab appears to argue that Oates failed to pay child support during 

2013 and owes her $6,000 in back child support payments. Mengisteab also claims that 

“Oates has been at the same job on the slope making over $130,000 a year [and] had the 

ability to financially support [their] son but refused to.” It appears that she is arguing 

that the court erred by failing to address Oates’s failure to pay child support from the 

time of Saul’s birth even though he had the ability to pay because of his job on the North 

Slope. 

But the court did not abuse its discretion by not addressing the effective 

date of Oates’s child support obligation or his potential responsibility for back child 

support at the February 2014 trial or the November 2014 custody hearing. The issue of 

custody and visitation took priority during those hearings, and the court signaled that 

child support would be addressed separately. The court followed through, addressing 

Stephanie F. v. George C., 270 P.3d 737, 745 (Alaska 2012) (citing Millette 

v. Millette, 177 P.3d 258, 261 (Alaska 2008)). 

-16- 7267 

40 
 

 

 

 

 

 

 

 

child support in a separate order dated the same day as its November 2014 custody 

modification order.41 The court’s prioritization and timing of its decisions in this regard 

were not an abuse of discretion.42 

3.	 The superior court did not err in establishing visitation and 

addressing associated costs. 

Mengisteab claims that the superior court erred with regard to the 

“[v]isitation schedule and costs associated with them” but does not elaborate. 

Mengisteab’s statement appears most relevant to the court’s November 2014 oral 

findings and written order in which it determined that Oates “shall have reasonable 

phone and Skype/Facetime visits with [Saul],” and “shall elect 3 visits between now and 

next May[] when he can fly to Seattle and pick [Saul] up for a visit on his time off from 

the Slope.” The court also ordered that Oates could credit half of the direct transit costs 

of the visits toward his child support obligation. In addition, the court found that if 

Mengisteab moved back to Alaska with Saul before the court’s July 15, 2015 deadline, 

41 Mengisteab has not formally appealed the superior court’s child support 

order. However, Mengisteab does list “Child support” in her statement of issues 

presented for review. Because the child support order was entered on the same day as 

the custody modification order — November 21, 2014 — it is possible that Mengisteab 

meant to include the child support order in her reference to the court’s “final judgment 

entered on November 21, 2014” in her notice of appeal. That said, Mengisteab’s brief 

does not discuss the issue of child support beyond repeated conclusory statements, and 

the child support order is not present in either Mengisteab’s excerpt of record or the 

record as a whole. On appeal, “issues not briefed or only cursorily briefed are 

considered waived.” Daggett v. Feeney, 397 P.3d 297, 304 n.19 (Alaska 2017) (citing 

Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001)). To the extent Mengisteab meant 

to challenge the separate child support order, her challenge is waived. 

42 See, e.g., Kailukiak v. State, 959 P.2d 771, 775 (Alaska App. 1998) (“Trial 

judges should, of course, be as free as possible to fashion procedures that expedite the 

business of their courts and that satisfy the litigation needs of the parties appearing 

before them.”). 

-17-	 7267
 
 

 

 

 

then the February 2014 order, which accounted for daycare arrangements and 

Mengisteab’s work schedule, would control visitation. The February 2014 order 

outlined a visitation schedule that would accommodate Oates’s schedule as a slope 

worker and Mengisteab’s work and daycare considerations. In the November 2014 

order, the court also tailored visitation to Mengisteab’s potential geographical location 

and took into account the extra cost to Oates of visiting Saul in Washington. The court’s 

decision was not an abuse of discretion. 

4. The superior court’s conduct did not demonstrate judicial bias. 

Mengisteab finally argues that the superior court was biased and prejudiced 

against her, and that the judge had a conflict of interest. She raises this argument for the 

first time on appeal, which would typically be grounds to consider the argument 

waived.43 However, in Greenway v. Heathcott, we explained that it is unclear “what 

must be done to preserve for review a claim of judicial bias, if, as here, there has been 

no motion for recusal, disqualification, or new trial” — that is, where there was no 

opportunity for the trial court to address the issue.44 In that case, although we ultimately 

found the claims of bias unwarranted, we assumed, without deciding, that the bias issues 

raised were properly preserved for review.45 We make the same assumption here. 

“A judge must recuse himself or herself if there is bias. If the appearance 

of bias is involved, we have held that the judge should give weight to preserving the 

appearance of impartiality.”46 “We review de novo the question of whether a judge 

43 See Mellard v. Mellard, 168 P.3d 483, 489 (Alaska 2007). 

44 294 P.3d 1056, 1063 (Alaska 2013). 

45 Id. at 1063, 1066. 

46 Id. at 1063 (footnotes omitted) (citing Amidon v. State, 604 P.2d 575, 577­

(continued...) 

-18- 7267
 
 

 

 

 

 

 

 

appears biased, which is assessed under an objective standard.”47 However, as we 

explained in Greenway, it is not obvious what standard of review — de novo review or 

abuse of discretion review — applies when a claim of actual bias is first raised on appeal 

and the trial court had no opportunity to address it.48 Like in Greenway, we need not 

decide this issue here, as we would reach the same conclusion under either standard. 

Mengisteab claims the trial court was “extremely bias[ed] and prejudice[d] 

and extremely harsh [in] ignoring [her] evidence and coming up with [its] own findings.” 

She further claims that the judge had a conflict of interest in this case because “he was 

the Judge in [her] son’s father[’s] case when [the father] was arrested for a DUI in 

2009.”49 Finally, she asserts that the judge “brought up several times [that] ‘he doesn’t 

know how I got the Supreme Court to overturn his decision,’ ” and that he told her 

lawyer, “She’s rude, I don’t like her and she does this all the time.”50 Unlike the 

appellant in Greenway, who cited five specific incidents in the record which she argued 

demonstrated judicial bias or the appearance of bias,51 Mengisteab does not support her 

46 (...continued) 

78 (Alaska 1979)). 

47 Wells v. Barile, 358 P.3d 583, 588 (Alaska 2015) (quoting Sagers v. 

Sackinger, 318 P.3d 860, 863 (Alaska 2014)). 

48 Greenway, 294 P.3d at 1062-63. 

49 Mengisteab does not specify, and the record does not indicate, which case 

this refers to. 

50 Mengisteab does not explain which supreme court decision she is referring 

to, and the record does not indicate when she appeared before this court in the past. 

Mengisteab also does not explain what conduct the statement “she does this all the time” 

refers to. 

51 Greenway, 294 P.3d at 1061-62, 1064-67. 

-19- 7267
 
 

 

 

 

 

 

 

 

 

contention with any citations to the record. In our review of the record, we found no 

incidents matching Mengisteab’s description. On one occasion, the trial court did tell 

Mengisteab’s attorney that it repeatedly “had to admonish [Mengisteab] to take her turn 

and she’s just unwilling to do so,” which bears some resemblance to Mengisteab’s claim 

that the court told her lawyer “she does this all the time.” However, it does not 

reasonably appear to reflect any personal bias against Mengisteab, does not suggest the 

trial judge considered Mengisteab rude, and does not indicate the judge disliked her 

personally. Rather, the court’s statement may at most reflect simple frustration with 

Mengisteab’s tendency — evident from the record — to interrupt the court, Oates, and 

her own counsel during court proceedings. Our review of the record also did not reveal 

any instances of the court ignoring evidence, and as discussed above, the court’s factual 

findings were supported by the record and not clearly erroneous. Finally, even assuming 

that the judge was the presiding judge in a prior DUI case involving Mengisteab’s son’s 

father, this does not by itself give rise to a conflict of interest that would require recusal.52 

Having reviewed the record and trial proceedings, we conclude that there 

is no indication of any bias or prejudice. The record instead indicates that the trial judge 

dealt fairly and courteously with both parties, and gave Mengisteab reasonable 

opportunities to explain her claims and evidentiary objections. Mengisteab’s allegations 

appear to reflect only her general dissatisfaction with the trial court’s rulings. As we have 

explained, allegations of judicial bias are unfounded where they are “simply another 

52 See Lacher v. Lacher, 993 P.2d 413, 420-21 (Alaska 1999) (holding that 

a judge’s involvement in past cases with negative outcome for the appellant personally 

did not require recusal). 

-20- 7267
 
 

 

iteration of [the appellant’s] own discontent with the court’s substantive rulings.”53 

Accordingly, we conclude that Mengisteab’s contentions are unwarranted. 

V. CONCLUSION 

We conclude that the superior court’s failure to conduct a symmetrical best 

interests analysis was legal error and REMAND for a symmetrical best interests analysis 

consistent with this opinion. We AFFIRM the superior court’s decision in all other 

respects. 

53 Ward v. Urling, 167 P.3d 48, 58 (Alaska 2007); see also Greenway, 294 

P.3d at 1063(“[E]ven incorrect rulings against a party do not show bias in and of 

themselves.”). 

-21- 7267