HAMILTON v. HAMILTON was a 2002 Alaska Supreme Court
decision.  John Hamilton and Phyllis Hamilton began dating
in 1990; moved in together in late spring 1991; and had their
first son in June 1991. They married in November 1991.  In
April 1993, a second son was born. Phyllis Hamilton started
rearing their two sons as Jehovah's Witnesses in 1995.  The
marital relationship deteriorated, and in May 1997,  John
moved out and filed for divorce. Phyllis Hamilton moved
with the boys from Petersburg to Juneau, where she
obtained a job with state government. The decree of
divorce was entered on March 25, 1999.
John Hamilton and Phyllis Hamilton were given joint legal
custody of the children, with primary physical custody in
Phyllis. John was given visitation during Thanksgiving,
winter holiday, spring break, and summer vacation. In
addition, John was given "visitation rights if he is in
Juneau, provided it is reasonable and does not interfere
with pre-planned activities or school attendance, and may
have the boys travel to visit him in Petersburg for up to five
weekends during the school year, at his expense."  The
agreement also gave each parent the right to make
decisions regarding day-to-day care and control of the
children when the children are residing with that parent, but
major decisions regarding education, medical care, and
socialization were to be made jointly. John and Phyllis
agreed to a "good faith requirement" to use their best
efforts to comply with statements of principle relating to
their parenting rights and responsibilities, including
working together on providing a sound moral,
socioeconomic, and educational environment for the
children; promoting the relationship between the children
and the other parent; and supporting the other parent's
lifestyle in front of the children.
The two boys first attended Glacier Valley and later
Harborview Elementary Schools in Juneau. After visiting
the staff and teachers at Glacier Valley, John claimed that
Phyllis called to scream at him about turning the teachers
against her. Soon after, Phyllis transferred the boys to
Harborview. John  Hamilton claimed that the reason Phyllis
gave for transferring the children was because he had
turned the teachers against Phyllis and, as a result, Glacier
Valley was a bad environment for the children. When John
Hamilton tried to visit Harborview, he reported a very
hostile attitude from the receptionist and office workers. He
further reported that Phyllis had not listed him in the boys'
paperwork on record at the schools. John had to pry
information about Frank's and Ian's progress from three
different school administrators.
Later, the custody investigator spoke with the boys'
teachers at both schools, as well as both principals. The
investigator's report states that Phyllis told the staff at
Glacier Valley not to inform John about any concerns they
may have regarding the boys, and that they were to deal
with her only. Phyllis's response at trial was that the
custody investigator and staff at Glacier Valley and
Harborview were lying. The custody investigator also found
that staff and teachers at Glacier Valley had difficulty
working with Phyllis. They found her to be in denial about
problems the boys were facing, and that she avoided
dealing with concerns by blaming others.
While there was nothing mentioned in the custody
agreement requiring the custodial parent (Phyllis) to share
school information, John and Phyllis were to consult with
one another on substantial questions relating to educational
programs. They were also to exert "their best efforts to
work cooperatively in future plans consistent with the best
interests of the children ... ."  The trial court later ruled that
Phyllis had breached this part of their custody agreement.
In October 1999, John Hamilton filed a motion and
memorandum to enforce visitation and for sanctions
against Phyllis Hamilton.  John claimed that Phyllis had
twice violated the child custody agreement by not allowing
him to visit the boys when he was in Juneau on business.
In his affidavit, John stated that Phyllis had hung up on him
when he had called to arrange visitation for times he would
be in Juneau on business. Phyllis did call him back soon
afterward but no plans for visitation were agreed to. He
then wrote a formal letter and had it served on her at work
by a process server. When no plans were reached,  John
went to the Juneau Police Department, and filed a custodial
interference report, and had an officer accompany him to
her house.
Phyllis requested a continuance from the court to respond
to John's motion. Phyllis thereafter move out-of-state with
the children to Tacoma, Washington.  The trial court later
ruled that her move from Juneau was for the purpose of
thwarting John's access to the children. Judge Thompson's
order stated that Phyllis's move was "the final straw", and
he ruled that Phyllis had absconded from Juneau to
Tacoma, Washington with the children without any notice
whatever to John.  The judge noted:  "Defendant's
testimony that this move was simply a visit which she later
determined to become permanent, and/or that it was done
on the spur of the moment is frankly incredible." As further
proof, Judge Thompson mentioned that within hours of
leaving her job, Phyllis had loaded two automobiles on the
barge for Washington. Judge Thompson found that Phyllis
had thought of the move in advance and did not inform
John of her plans. John affirmed that he was not told of the
impending move to Washington. He also stated that Ian had
told him that their belongings were on the barge south
when John first spoke with Ian after his arrival in
Washington. In one of her affidavits, Phyllis stated that
when she, Francis, and Ian left the Juneau apartment for the
final time, just prior to leaving for Washington, the
apartment was empty of their belongings. She also stated
that when she spoke to John after arriving in Washington,
she wasn't sure where in Tacoma she was going to live.
Phyllis told the trial court that the day she quit her job she
put two cars, loaded with her belongings, on a barge
headed for Tacoma.  Additionally, the custody investigator
reported that Harborview's principal indicated that the boys
were aware of the move a couple of weeks prior to their
departure. Principal Dye stated that Ian let it slip in school
but said he wasn't supposed to tell anyone.
On appeal, Phyllis argued, in part, that the move to Tacoma
was due to the need for "family support" (Phyllis evidently
was originally from Tacoma), plus the boys "cultural needs"
would best be met in Tacoma, where her bi-racial children
would be exposed to the African-American culture through
their schooling and her African-American family.
The trial court issued the order granting John's motion to
modify custody in July 2000. Judge Thompson stated that
the factor regarding "the desire and ability of each parent to
allow an open and loving frequent relationship between the
child and the other parent" was the most important factor in
reaching his decision. Phyllis and John continue to share
legal custody, but primary physical custody was switched
from Phyllis to John. Phyllis was given liberal visitation
during summer vacation, on alternating winter holiday and
spring break vacations, etc.
Phyllis appealed. The Supreme Court affirmed, stating in
part:
"Phyllis has raised the boys as Jehovah's Witnesses since
1995. John has expressed a great deal of hostility towards
this religion and the effect it is having on the boys. He has
expressed a desire to allow the boys to make up their own
minds as to religion when they are old enough to fully
understand it. Despite his past hostility towards Phyllis's
choice of religious beliefs, John stated during his testimony
that he would not stand in the children's way if they choose
to practice Phyllis's religion. He expressed a tolerance for
the children's reading, study, and discussion of the religion
with people who are knowledgeable and interested in it.

"Phyllis claims that the trial court did not account for John's
intolerance toward the boys' religious beliefs as Jehovah's
Witnesses. She claims that placing the children, especially
Francis who has begun to internalize a religious belief
system, into a home where such beliefs are not respected
is a factor the trial court should have given more
consideration.

"Although a court may not rely on the religious affiliations
of the parties in making a best interests determination, the
religious needs of a child are a factor the court can
consider. The court must make a finding that the child has
actual religious needs and that one parent can better satisfy
those needs. In deciding actual religious needs, we
determine whether a child is "mature enough to make a
choice between a form of religion or the lack of it." In
Bonjour v. Bonjour, while noting that the maturity of a minor
will vary from case to case, we commented favorably on
one court's holding that "children aged three, five, and
seven are not of sufficient maturity to form an intelligent
opinion on so complex a subject as religion or their needs
with respect to it."  In that case we went on to consider the
kinds of determinations a trial court may need to make
when a fifteen-year old child has developed either strong
religious or anti-religious beliefs.  As Francis and Ian are
nine and seven, respectively, they are not yet mature
enough to make a choice between a form of religion or the
lack of it.
"In spite of John's admitted instances of previous
intolerance, Judge Thompson found his tolerance
expressed at trial to be believable. As such, the court found
that the religious aspects of the first two factors in
determining the best interests of the children favored
neither John nor Phyllis. Because the children lacked the
maturity needed to present an actual religious belief, the
trial court was not required to give further consideration to
the boys' religious needs beyond its belief in John's
tolerance. Furthermore, the trial court expressly stated in
the order that should John's tolerance wane and should he
begin to 'affirmatively attempt to ridicule or undermine
[Phyllis's] religious beliefs to the children, this factor could
become more important.'
... ...
"We perceive no error pertaining to the children's cultural
needs. As noted, the trial court did not explicitly consider
the cultural needs of the boys because there was no
evidence presented to the trial court upon which such a
determination could be made. And Phyllis will have custody
of the boys during the three month summer vacation as
well as other various school vacations, ... . The trial court
knew that John was aware of the possible problem. Finally,
the boys were being placed into a multiracial home
[Footnote: John's girlfriend, Jennifer Valentine, is
Vietnamese and has a son, James, whose ethnicity and
race do not appear in the record. As the children will be
living in a home with John, Jennifer, and James, they will
be exposed to a variety of cultures and races. Rather than
not seeing anyone who looks like them, as Phyllis fears,
they will see a home where no one looks the same as
anyone else.] All of these circumstances lead us to
conclude that the trial court did not abuse its discretion in
not explicitly addressing the children's cultural needs.
Jehovah's Witnesses Lose in Court-Often....