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.gov. 

THE SUPREME COURT OF THE STATE OF ALASKA 

JULIE I. HUSBY and GREGORY L

HUSBY, 

Appellants, 

v. 

JENNIFER M. MONEGAN and 

SCOUT A. MONEGAN, 

Appellees. 

. ) 

) Supreme Court No. S-18023 

Superior Court No. 3AN-19-09729 CI 

O P I N I O N 

No. 7620 – September 16, 2022 

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

Judicial District, Anchorage, Thomas A. Matthews, Judge. 

Appearances: Herbert M. Pearce, Law Office of Herbert M. 

Pearce, Anchorage, for Appellants. Notice of 

nonparticipation filed by Michael Gershel, Law Office of 

Michael Gershel, Anchorage, for Appellees. 

Before: Winfree, Chief Justice, Maassen, Carney, 

Borghesan, and Henderson, Justices. 

BORGHESAN, Justice. 

I. INTRODUCTION 

This appeal presents two related questions of law arising out of a motion 

to modify an order giving visitation rights to grandparents. 

First, which statute governs a motion to modify grandparents’ visitation: 

AS 25.20.065(a), which permits grandparents to petition for visitation but does not 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

mention modification of visitation orders; or AS 25.20.110(a), which authorizes 

modification of visitation orders but does not expressly mention grandparents? We 

conclude that AS 25.20.110(a) applies, requiring a movant to show a substantial change 

in circumstances before the court may modify the existing order. 

Second, when a grandparent seeks visitation over a parent’s objection, the 

grandparent must show clear and convincing evidence that the parent is unfit or that 

denying visitation will be detrimental to the child.1 If the court awards visitation rights 

to a grandparent, and the parent later moves to modify the grandparent’s visitation rights, 

must the court apply this “parental preference rule” in deciding whether to modify 

visitation? We hold that so long as the parents were protected by the parental preference 

rule in the proceedings resulting in the grandparent’s visitation rights, the rule does not 

apply in later proceedings to modify those visitation rights. 

Having clarified the applicable legal standards, we reverse and remand the 

superior court’s order in this case because it was error to decide the motions to modify 

the grandparents’ visitation rights without first holding a hearing on disputed issues of 

fact. 

1 See Ross v. Bauman, 353 P.3d 816, 828-29 (Alaska 2015); cf. Daves v. 

McKinley, 425 P.3d 92, 96 (Alaska 2018) (“In its initial resolution of a custody dispute 

between a . . . parent and any third party, including a grandparent, the . . . parent prevails 

unless the non-parent shows ‘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.’ ” 

(quoting Dara v. Gish, 404 P.3d 154, 161 (Alaska 2017))). 

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II. FACTS AND PROCEEDINGS 

A. Facts 

Jennifer Monegan is the birth mother of a child born in 2011, and Scout 

Monegan is the child’s adoptive father.2 Gregory and Julie Husby are the child’s 

maternal grandparents and live in Oregon. Jennifer and her child lived with the Husbys 

for a time after the child’s birth; the Husbys provided childcare and were significantly 

involved in the child’s life until he was two and a half years old. However, Jennifer’s 

relationship with the Husbys began to deteriorate after she started dating Scout. 

After Jennifer and Scout married in 2013, the Husbys petitioned for 

visitation in Oregon, where all of the parties lived at the time. Jennifer and the Husbys 

came to a mediated agreement providing, among other things, that the Husbys would 

have visitation with the child one weekend per month for 32 hours, as well as unlimited 

written and telephonic contact. The agreement also gave the parties an ongoing 

responsibility to update their contact information. An Oregon court approved the 

agreement and entered a stipulated order in March 2014. 

The Monegans moved to Alaska in March 2018. In-person visits occurred 

less frequently after the relocation: Between March 2018 and August 2019 the Husbys 

visited the child seven times. The Husbys tried to maintain their relationship with the 

child through letters, gifts, and weekly phone calls, and claim they were able to do so 

through the summer of 2019. 

B. Proceedings 

In September 2019 the Monegans filed a complaint in the superior court to 

terminate the Husbys’ visitation rights, alleging it was not in the child’s best interests to 

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2 Scout adopted the child in 2014. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

continue visitation. The Husbys counterclaimed for modification of the stipulated order 

to allow “reasonable visitation” with the child. 

1. Cross-motions to modify visitation 

The Husbys then filed a motion to enforce the stipulated visitation order. 

The Husbys alleged that Jennifer and Scout were failing to abide by the stipulated order 

in several ways, including by limiting the frequency and duration of their phone calls 

with the child. The Husbys also alleged that Jennifer and Scout had cancelled three 

visits. In addition to seeking the Monegans’ compliance with the stipulated order, the 

Husbys reiterated their request for an order modifying the visitation schedule. 

The Monegans opposed the Husbys’ motion and filed a cross-motion to 

deny the Husbys visitation rights. The Monegans submitted an affidavit from Jennifer 

and unsworn declarations from the child’s birth father, the birth father’s wife, and 

Jennifer’s sister. Relying on these documents, the Monegans alleged that Gregory had 

secretly contacted the child’s birth father in 2019 to obtain a sample of his DNA for a 

paternity test. Although the child did not know at the time that he was adopted, Gregory 

allegedly told the birth father that the child had been asking who his birth father was. 

The Monegans alleged that once the paternity test came back, Gregory threatened to sue 

them to vacate the adoption. The Monegans added that Gregory had threatened to read 

the child a lengthy and derogatory “book” Gregory wrote about the Monegans if they did 

not comply with his requests. The Monegans also alleged that Gregory had become 

“belligerentand bullying”inhis interactions with them, andattached transcriptsofphone 

conversations between the parties corroborating their account. 

Jennifer’s sister alleged that Gregory had been physically violent with his 

children when they were younger. Among other things she alleged that Gregory had 

once drunkenly waved a gun and threatened to kill himself and told the sister “he could 

kill [her] and no one would know.” Jennifer’s sister also stated that she had recently 

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obtained a restraining order against Gregory becausehehad screamedat her husband and 

used “foul language” and “derogatory names” after she rejected the Husbys’ request to 

visit with her daughter. 

In response the Husbys submitted an affidavit from Gregory. Gregory 

denied many of the Monegans’ allegations, denying that he had harassed any of his 

children or their spouses, engaged in belligerent or bullying behavior, been physically 

violent with his children when they were younger, or pulled a gun on Jennifer’s sister. 

The Husbys also submitted an affidavit from Jennifer’s brother, which suggested that an 

incident involving Gregory that the sister’s declaration portrayed as inappropriate was 

in fact reasonable and caused him no harm. 

2. Superior court’s order terminating visitation rights 

The superior court issued an order denying the Husbys’ motion to enforce 

the stipulated order and granting the Monegans’ cross-motion to deny the Husbys 

visitation rights. 

In deciding the Monegans’ motion to modify the Husbys’ visitation, the 

superior court applied AS 25.20.065(a), as modified by our decision in Ross v. Bauman. 

3 

This statute authorizes a grandparent to petition the superior court for an order 

establishing reasonable rights of visitation between the grandparent and child if: “(1) the 

grandparent has established or attempted to establish ongoing personal contact with the 

child; and (2) visitation by the grandparent is in the child’s best interest.” Ross held that, 

to protect parents’ fundamental constitutional right to raise their children, a grandparent 

who seeks visitation over a parent’s objection must also “prove by clear and convincing 

evidence that it is detrimental to the child to limit visitation with the [grandparent] to 

P.3d at 828-29. 

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3 353 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

what the child’s otherwise fit parents have determined to be reasonable.”4 The superior 

court determined that AS 25.20.110(a), which requires a showing of substantial change 

in circumstances before an existing visitation order may be modified, did not apply to 

this case. Nevertheless, the court found that the Monegans’ move from Oregon to 

Alaska qualified as a substantial change in circumstances. 

Applying the standards in AS 25.20.065(a), the superior court first found 

that the Husbys had established ongoing personal contact with the child, citing the 

regular childcare they provided until he was two-and-a-half, and their regular visitation 

with him until he moved to Alaska. In its best interests analysis the court found that the 

child’s “physical, emotional, and mental needs are not benefitted by being subjected to 

Gregory’s forceful and, many times, inappropriate meddling into decisions that should 

be reserved for [the child’s] parents.” Referencing Gregory’s investigation into the 

child’s paternity, his threats to share derogatory information about the Monegans with 

the child, and his threats to overturn Scout’s adoption of the child, the court found that 

although the Husbys “clear[ly] . . . love their grandchild,” Gregory’s manipulation and 

aggression in pursuit of his goals were detrimental to the child. The court also noted the 

alleged history of abuse in the Husby household, citing two incidents: the one when 

Gregory allegedly handcuffed his son to a bed, and the one when Gregory drunkenly 

waved a gun around and threatened to kill himself and Jennifer’s sister. 

Finally the court found that the Husbys had not shown by clear and 

convincing evidence that a lack of visitation would be detrimental to the child. The court 

therefore denied the Husbys’ request for visitation against the Monegans’ wishes. 

The Husbys moved for reconsideration, arguing that the superior court 

applied the incorrect standard in determining whether to modify the stipulated visitation 

4 Id. 

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order. The Husbys also claimed that the court was required to hold an evidentiary 

hearing before modifying the stipulated order. The court denied the Husbys’ motion for 

reconsideration, disagreeing with the Husbys’ argument that AS 25.20.110(a) — rather 

than the standard the court applied — governs modification of grandparent visitation 

rights. The court also noted that the Husbys had failed to request an evidentiary hearing 

to address modification of the stipulated order despite having the opportunity to do so 

prior to the court’s ruling on the merits. 

3. Motion to compel enforcement of notice provision 

After reconsideration was denied the Husbys filed a motion to compel 

disclosure of the Monegans’ mailing address. The Husbys argued that disclosure was 

mandated by the terms of the adoption decree, which incorporated the stipulated 

visitation order, including the provision for updating contact information. The 

Monegans opposed, and the superior court denied the Husbys’ motion, explaining that 

the Monegans have the right to determine appropriate contact between the child and 

grandparents. 

The Husbys appeal the superior court’s order terminating their visitation 

rights and the order denying their motion to compel. 

III. STANDARDS OF REVIEW 

Whether the superior court applied the correct standard in a custody or 

visitation determination is a question of law we review de novo.5 We also review de 

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5 Id. at 823 (Alaska 2015) (quoting Osterkamp v. Stiles, 235 P.3d 178, 184 

(Alaska 2010)). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

novo constitutionalquestions,6 including theadequacy of the noticeand hearing afforded 

a litigant.7 

IV.	 DISCUSSION 

A.	 It Was Error To Apply AS 25.20.065(a) And The Parental Preference 

Rule When Considering The Proposed Modification Of Grandparent 

Visitation, But This Error Was Harmless. 

When a party seeks to modify an order giving visitation rights to 

grandparents, AS 25.20.110(a) applies. This statute, which governs modification of 

custody and visitation orders generally, requires the movant to showa substantial change 

in circumstances and that modified visitation is in the child’s best interests. And so long 

as the parental preference rule described in Ross v. Bauman8 applied in the proceedings 

that yielded the initial visitation order in the grandparents’ favor, the parental preference 

rule does not apply in subsequent proceedings to modify that order. 

In this case the superior court mistakenly applied the statute governing 

petitions to establish grandparent visitation in the first instance, AS 25.20.065(a), as well 

as the parental preference rule. These two errors do not, by themselves, require reversal. 

The court found in the alternative that the Monegans established the substantial change 

in circumstances required by AS 25.20.110(a): their move fromOregon to Alaska.9 And 

applying the parental preference rule was not decisive because the court separately found 

6 Id. 

7 Debra P. v. Laurence S., 309 P.3d 1258, 1260 (Alaska 2013) (quotation 

mitted). 

8 353 P.3d at 828-29. 

9 Alaska R. Civ. P. 61 (“The court at every stage of the proceeding must 

o

disregard any error or defect in the proceeding which does not affect the substantial 

rights of the parties.”). 

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that having visitation with the Husbys was not in the child’s best interests. But because 

this best interests finding was made without first holding a hearing to resolve disputed 

facts, we remand for further proceedings. 

1.	 Alaska Statute 25.20.110(a) governs motions to modify orders 

granting visitation rights to grandparents. 

In deciding whether to grant the Monegans’ motion to modify the Husbys’ 

visitation, the superior court applied AS 25.20.065(a), under which “a child’s 

grandparent may petition the superior court for an order establishing reasonable rights 

of visitation” if the grandparent “has established or attempted to establish ongoing 

personal contact with the child” and visitation “is in the child’s best interest.” The 

Husbys contend that the superior court should have applied AS 25.20.110(a)’s standard, 

which requires that a party moving to modify custody or visitation show a substantial 

change in circumstances requiring modification of the award and that the modification 

is in the child’s best interests. We agree with the Husbys.10 

We construe statutes according to reason, practicality, and common sense, 

considering the meaning of the statute’s language, its legislative history, and its 

purpose.11 The goal of statutory construction is to give effect to the legislature’s intent, 

with due regard for the meaning the statutory language conveys to others.12 “We give 

10 Ross, 353 P.3d at 823 (“[W]hether the [superior] court applied the correct 

standard in a custody [or visitation] determination is a question of law we review de 

novo.” (third alteration in original) (quoting Osterkamp, 235 P.3d at 184)). 

11 Roberge v. ASRC Constr. Holding Co., 503 P.3d 102, 104 (Alaska 2022) 

(quoting Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1121 (Alaska 2017)). 

12 Id. (quoting Murphy v. Fairbanks North Star Borough, 494 P.3d 556, 563 

(Alaska 2021)). 

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unambiguous statutory language its ordinary and common meaning . . . .”13 And 

whenever possible we interpret each part or section of a statute in light of every other 

part or section, so as to create a “harmonious whole.”14 

The text of AS 25.20.065(a) indicates that it does not apply to modification 

of existing visitation orders. For one, the text specifically authorizes petitions to 

“establish[]” visitation; it does not mention modification.15 Furthermore, the element of 

the statute’s test requiring grandparents to have “established or attempted to establish 

ongoing personal contact with the child”16 is meaningful only when applied to a petition 

to establish visitation rights for the first time. When a party seeks to modify an order 

granting visitation rights to a grandparent, the grandparent will necessarily already have 

established ongoing personal contact with the child. It does not make sense to apply 

AS 25.20.065(a) to motions to modify visitation when one part of the two-part test is 

superfluous in that context. 

By contrast, AS 25.20.110(a) broadly allows a court to modify “[a]n award 

of custody of a child or visitation with the child . . . 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.” Although this statute does not mention grandparents and 

does specifically mention parents, the statutory text does not limit its scope to orders 

granting visitation to parents. The reference to “parent” provides only that the court must 

13 Id. (quoting Cora G. v. State, Dep’t of Health &Soc. Servs., Off. of Child.’s 

Servs., 461 P.3d 1265, 1277 (Alaska 2020)). 

14 Id. (quoting Darrow, 403 P.3d at 1127). 

15 AS 25.20.065(a). 

16 AS 25.20.065(a)(1). 

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explain its reasoning on the record if modifying visitation over a parent’s objection.17 

But the statutory text is broad enough to encompass modification of grandparent 

visitation orders. And there is no indication in the statute’s legislative history of intent 

to exclude modification of grandparent visitation awards from the statute’s purview. 

The policies behind AS 25.20.110(a)’s standard for modifying custody and 

visitation apply equally to parents and grandparents. Requiring the movant to show a 

substantial change in circumstances since the existing custody or visitation order was 

issued promotes “finality and certainty,” qualities that are “critical to the child’s 

emotional welfare.”18 The change in circumstances requirement thus “supplement[s] the 

statutorily mandated ‘best interest of the child’ standard by recognizing the child’s right 

to stability and continuity in his or her living arrangements.”19 The requirement protects 

that right by discouraging “harmful and needless relitigation of the issues” in custody or 

visitation proceedings of any type.20 

The superior court relied on Oregon case law to conclude that a change of 

circumstances is not needed to modify a grandparent visitation award. Oregon law is 

inapposite because there, unlike here, a party never needs to show a change of 

circumstances to modify visitation, whether by parents or grandparents. Oregon does 

17 AS 25.20.110(a) (“If a parent opposes the modification of the award of 

custody or visitation with the child and the modification is granted, the court shall enter 

on the record its reasons for the modification.”). 

18 McAlpine v. Pacarro, 262 P.3d 622, 626 (Alaska 2011) (quoting Peterson 

v. Swarthout, 214 P.3d 332, 340-41 (Alaska 2009)). 

19 Richard Montes, Harold J. Cohn & Shelley L. Albaum, The ChangedCircumstance Rule and the Best Interest of the Child, 24 L.A. LAW., Dec. 2001, at 12. 

20 LINDA D. ELROD, CHILD CUSTODY PRACTICE & PROCEDURE § 17:4 (2021 

ed.). 

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not have a statutory standard for modifying visitation.21 Oregon courts have held that 

although a showing of a substantial change of circumstances is required before 

modifying parental custody, the only relevant factor when deciding whether to modify 

court-ordered visitation is the best interests of the child.22 But Alaska law expressly 

requires a showing of a change of circumstances to modify custody and visitation 

orders.23 The Oregon decisions relied on by the superior court simply do not fit our 

statutory framework. 

But we do find persuasive the logic of the Tennessee Supreme Court when 

faced with the same statutory problem we face here. Tennessee’s grandparent visitation 

statute, like ours, addresses only the initial petition for visitation; it does not mention 

modification of court-ordered visitation.24 In Lovlace v. Copley the Tennessee court 

determined that a party seeking modification of court-ordered grandparent visitation 

must first demonstrate a material change in circumstances and then prove that the 

requested modification of visitation is in the best interests of the child.25 The court 

reasoned that this framework for modifying a parent’s visitation is “equally applicable” 

when modifying grandparent visitation because “giv[ing] deference to a court’s order” 

and “promot[ing] the important policy goal of stability for the child” are concerns in both 

21 See Meader v. Meader, 94 P.3d 123, 130-31 (Or. App. 2004), rev. denied, 

101 P.3d 809 (Or. 2004). 

22 Id.; see also In re Marriage of Ortiz, 801 P.2d 767, 769-70 (Or. 1990). 

23 AS 25.20.110(a). 

24 Compare id., with TENN. CODE ANN. § 36-6-306 (West 2022). 

25 418 S.W.3d 1, 23 (Tenn. 2013). 

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types of proceedings.26 The court also declined to distinguish between modification of 

custody and visitation, noting that “[v]isitation rights arise from the right of custody and 

are controlled by the same constitutional protections.”27 

In light of the text and purpose of our own statutes, as well as the rulings 

of other courts that have adopted a change in circumstances requirement when 

addressing motions to modify grandparent visitation,28 we hold that AS 25.20.110(a) 

applies to motions to modify an order granting visitation to grandparents. 

2.	 The parental preference rule does not apply in proceedings to 

modify a grandparent’s visitation rights so long as the rule 

applied to the initial proceeding establishing those rights. 

TheHusbysalso arguethat thesuperior court erred by applying theparental 

preference rule in the proceedings to modify their visitation, contending that this rule 

should apply only to an initial petition to establish grandparent visitation under 

AS 25.20.065(a). We generally agree with the Husbys’ argument on this point. 

The parental preference rule protects parents’ constitutional liberty interest 

in the care, custody, and control of their children by creating a presumption in favor of 

“a fit parent’s determination as to the desirability of visitation with third parties.”29 The 

26 Id. at 29, 31 (quoting Rennels v. Rennels, 257 P.3d 396, 401-02 (Nev. 

2011)). 

27 Id. at 30 (alteration in original) (quoting Smallwood v. Mann, 205 S.W.3d 

358, 362-63 (Tenn. 2006)). 

28 E.g., Rennels, 257 P.3d at 401-02; Kulbacki v. Michael, 899 N.W.2d 643, 

645-46 (N.D. 2017); Scott v. Scott, 19 P.3d 273, 275 (Okla. 2001). 

29 Ross v. Bauman, 353 P.3d 816, 827 (Alaska 2015) (emphasis omitted) 

(quoting Evans v. McTaggart, 88 P.3d 1078, 1089 (Alaska 2004)); see also Troxel v. 

Granville, 530 U.S. 57, 65 (2000) (“[T]he interest of parents in the care, custody, and 

control of their children[] is perhaps the oldest of the fundamental liberty interests 

(continued...) 

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rule requires a third party seeking court-ordered visitation with a child to prove by clear 

and convincing evidence “that it is detrimental to the child to limit visitation with the 

third party to what the child’s otherwise fit parents have determined to be reasonable.”30 

Yet the rule does not apply in every dispute over visitation between parents 

and third parties. We have ruled that the presumption of parental preference “drops out 

in subsequent modification proceedings” when a third party has already been granted 

permanent custody over a parent’s objection.31 We now hold that the same rule applies 

when a third party has previously been granted visitation. 

Our decision in C.R.B. v. C.C., a third-party custody case, explains why the 

parental preference rule applies only to initial proceedings.32 In that case we 

acknowledged that the parental preference rule “is a vital safeguard against enabling 

nonparents to convince courts to remove children improperly from their parents.”33 Yet 

applying the rule involves “an inevitable sacrifice of children’s interests in cases where 

a nonparent can better serve those interests, but a parent’s custody is not ‘clearly 

detrimental.’ ”34 We held that this “sacrifice is unnecessary where a court has granted 

29 (...continued) 

recognized by [the U.S. Supreme Court].”). 

30 Ross, 353 P.3d at 828-29. 

31 Daves v. McKinley, 425 P.3d 92, 96 (Alaska 2018) (quoting Abby D. v. Sue 

Y., 378 P.3d 388, 392 (Alaska 2016)). 

32 959 P.2d 375, 380 (Alaska 1998). 

33 Id. (emphasis omitted). 

34 Id.; see also Abby D., 378 P.3d at 394 (“[I]t would be antithetical to the 

child’s best interests to apply [the parental preference presumption] again in [custody] 

modification proceedings.”). 

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a nonparent custody after giving a parent notice and a chance to be heard” because the 

parent’s right to custody had already been protected in the initial determination.35 

There is no obvious reason to treat visitation disputes differently. So long 

as the parental preference rule applied in the proceeding that resulted in the third-party 

visitation order, the rule does not apply in proceedings to modify that order. “Having 

once protected the parent’s right” to determine visitation “at the risk of sacrificing the 

child’s best interests, we should not then sacrifice the child’s need for stability . . . by 

modifyingthosearrangementsmorereadily than in aparent-parentcase.”36 Instead, “any 

modification motion is subject to the usual test of AS 25.20.110(a), meaning that the . . . 

decree will be modified only ‘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.’ ”37 

The Monegans already received the protection of the parental preference 

rule in their initial visitation dispute with the Husbys in the Oregon courts. Oregon law 

contains a comparable parental preference rule requiring third parties seeking visitation 

with a child against the parents’ wishes to rebut the presumption that the parents act in 

the child’s best interests.38 The Monegans did not invoke the protection of Oregon’s 

parental preference rule in a contested proceeding. Instead they stipulated to visitation 

35 C.R.B., 959 P.2d at 380. 

36 Id. 

37 Daves, 425 P.3d at 96 (quoting Abby D., 378 P.3d at 392); see also C.R.B., 

 P.2d at 380. 

38 OR. REV. STAT. ANN. § 109.119(1), (2)(a), (3)(a) (West 2022); see also 

959

Harrington v. Daum, 18 P.3d 456, 461 (Or. App. 2001) (reversing trial court’s decision 

to order third-party visitation because neither third party nor children had interest that 

could “overcome father’s right to decide the issue of visitation”). 

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with the Husbys. But the rule nevertheless governed that dispute and protected the 

Monegans’ constitutional right to direct their child’s upbringing. Because that interest 

has already been protected, and there is a countervailing need to protect the stability of 

the child’s family life, the parental preference rule does not apply in these modification 

proceedings.39 

B.	 It Was Error To Modify The Husbys’ Visitation Without An 

Evidentiary Hearing To Resolve Disputed Facts. 

Having clarified the standard courts should use when considering whether 

to modify a grandparent visitation award, we turn to the superior court’s decision to 

terminate the Husbys’ visitation rights. The superior court made findings addressing the 

two prongs of the correct standard: that the Monegans’ move from Oregon to Alaska 

was a substantial change in circumstances and that ongoing visitation with the Husbys 

was not in the child’s best interests. But because the court did not find that the 

Monegans’ relocation alone justified terminating the Husbys’ visitation, and because the 

court’s findings about thechild’s best interests werebasedondisputed factualallegations 

erroneously resolved without a hearing, we must vacate the modification order and 

remand for further proceedings. 

A party moving to modify custody or visitation must “demonstrate that the 

[alleged] changed circumstances [since entry of the last decree], considered in 

conjunction with other relevant facts bearing upon the child’s best interests, warrant 

modification of the existing . . . decree.”40 The change in circumstances must be 

39 The initial grandparent visitation award was not based on a finding that the 

Monegans were unfit. Whether the parental preference rule applies in cases when the 

initial visitation award was premised on a finding of parental unfitness is not squarely 

presented in this appeal, and we express no opinion on that issue. 

40 Long v. Long, 816 P.2d 145, 150 (Alaska 1991) (quoting Lee v. Cox, 790 

(continued...) 

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“substantial,”41 but “[t]he change in circumstances required to modify visitation . . . is not 

as great as that required for a change in custody.”42 Although an out-of-state move may 

be a substantial change in circumstances,43 the logistical difficulty of physical visitation 

does not necessarily mean that cutting off all contact is in the child’s best interests. Here 

the court did not rule that the Monegans’ relocation alone justified wholly eliminating 

the Husbys’ in-person visitation, let alone their right to communicate with the child in 

writing, over the telephone, or through the internet. 

The superior court’s other best interests findings reveal why the court 

terminated the Husbys’ visitation, but we cannot rely on these findings because they 

were made without an evidentiary hearing to resolve disputed facts.44 In rejecting the 

Husbys’ argument on reconsideration that the court should have held an evidentiary 

40 (...continued) 

P.2d 1359, 1361 (Alaska 1990)). 

41 McLane v. Paul, 189 P.3d 1039, 1043 (Alaska 2008) (“We require [a] 

showing [of a substantial change in circumstances to modify custody] to maintain 

continuity of care and to avoid disturbing and upsetting the child with repeated custody 

changes. We have cautioned that ‘[c]hildren should not be shuttled back and forth 

between divorced parents unless there are important circumstances justifying such 

change.’ ” (third alteration in original) (footnote omitted) (quoting Nichols v. Nichols, 

516 P.2d 732, 735 (Alaska 1973))). 

42 Morino v. Swayman, 970 P.2d 426, 428 (Alaska 1999). 

43 Cf. Bruce H. v. Jennifer L., 407 P.3d 432, 436-37 (Alaska 2017) (“[F]or 

physical custody purposes an out-of-state move is a substantial change of circumstances 

as a matter of law.”). 

44 Regina C. v. Michael C., 440 P.3d 199, 203 (Alaska 2019) (“The‘adequacy 

of the notice and hearing afforded a litigant’ is a question of constitutional law ‘to which 

we apply our independent judgment.’ ” (quoting Debra P. v. Laurence S., 309 P.3d 1258, 

1260 (Alaska 2013))). 

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hearing to protect the Husbys’ due process rights, the court commented that “[t]here is 

no clear direction either in Alaska Statutes or case law that grandparents are entitled to 

an evidentiary hearing for a modification of visitation rights.” We have held in other 

visitation and custody contexts, however, that parties are entitled to a hearing if they 

oppose modification and raise a genuine dispute of material fact regarding the child’s 

best interests.45 The same important interests are at stake here, requiring the same 

procedural protection.46 

The Husbys opposed the Monegans’ proposed modification and raised 

factual disputes about the child’s best interests; it was therefore error to modify visitation 

without a hearing. As the superior court recognized, Gregory’s affidavits denied at least 

some of the Monegans’ allegations, including that he had been physically violent with 

his children when they were younger, that he had pulled a gun on Jennifer’s sister, and 

that he had harassed any of his children or their spouses as described in the sister’s 

declaration. The Husbys also alleged that it would not be in the child’s best interests to 

45 See A.H. v. P.B., 2 P.3d 627, 628 (Alaska 2000) (vacating superior court’s 

order reducing father’s visitation without a hearing when father opposed mother’s 

motion to modify visitation arrangement); Walker v. Walker, 960 P.2d 620, 622 (Alaska 

1998) (holding that hearing was required prior to granting an opposed motion to modify 

custody when party opposing the custody modification “squarely contested” other 

party’s allegations via affidavit); D.D. v. L.A.H., 27 P.3d 757, 760 (Alaska 2001) 

(“[B]ecause Danielle opposed Leif’s motion to modify the custody arrangement and 

raised factual disputes regarding the best interests of their child, the superior court should 

have conducted an evidentiary hearing.”). 

46 Cf. Laura B. v. Wade B., 424 P.3d 315, 318 (Alaska 2018) (“Had the 

superior court held a . . . hearing, Laura could have offered witnesses and other evidence 

supporting her contention that living with her was in the daughter’s best interests. Laura 

also could have examined the custody investigator and rebutted his findings and 

credibility assessments with her own evidence. But without the second hearing Laura 

was unableto challenge the custody investigator’s findings or present other evidence and 

arguments about the daughter’s best interests.”). 

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fully cutoffcommunication and visitation withthem, citing the“lasting impression”they 

left after providing “crucial and critical care” to the child from his birth until he reached 

two and a half years old. Taking all of their allegations as true, the Husbys raise factual 

disputes regarding whether ending visitation would be in the child’s best interests. On 

remand the superior court must hold an evidentiary hearing before making findings of 

fact. 

For similar reasons we also vacate the superior court’s order denying the 

Husbys’ motion to compel enforcement of the stipulated provision for updating contact 

information. The Husbys sought disclosure of the Monegans’ current address so that the 

Husbys could send letters and gifts to the child. The Husbys frame this provision as a 

“non-visitation term[]” that survives any termination of their visitation rights.47 But the 

notice provision is not a standalone right; it merely allows the parties to exercise their 

rights of contact under the visitation order. Nevertheless, because the superior court cut 

off this right without first holding a hearing on the disputed allegations, we must vacate 

its decision. 

V. CONCLUSION 

We VACATE the superior court’s orders modifying visitation and denying 

theHusbys’ motion tocompel and REMANDfor further proceedings consistentwiththis 

opinion. 

47 There is no merit to the Husbys’ argument that the provision for updating 

contact information cannot be modified because it was incorporated into the adoption 

order. Any visitation rights incorporated into an adoption order — including provisions 

for contact — are subject to future modification. 

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