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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. or subject indices. J.M.R. v. S.T.R. (1/5/01) sp-5354

J.M.R. v. S.T.R. (1/5/01) sp-5354

     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.



             THE SUPREME COURT OF THE STATE OF ALASKA


J.M.R.,                       )
                              )    Supreme Court No. S-9490
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-99-2871 CI
                              )
S.T.R. and C.C.R.,            )    O P I N I O N
                              )
             Appellees.       )    [No. 5354 - January 5, 2001]
______________________________)


          Appeal from the Superior Court and District
Court of the State of Alaska, Third Judicial District, Anchorage,
Brian C. Shortell, Judge, and Suzanne R. Cole, Magistrate.


          Appearances:  Vincent Vitale, Law Office of
Vincent Vitale, Anchorage, for Appellant.  S.T.R. and C.C.R., pro
se, Scottsdale, Arizona.


          Before:   Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          MATTHEWS, Justice.


I.   INTRODUCTION
          Julia R. [Fn. 1] appeals the denial of her domestic
violence petition for temporary custody of her grandchildren. 
Because a domestic violence petition is an inappropriate proceeding
for a non-parent to litigate custody and visitation issues, we
affirm. 
II.  FACTS AND PROCEEDINGS
          Julia is the mother of Stuart R. and the grandmother of
C.R. and M.R.  Stuart is married to Constance, who is the mother of
both children.  Despite past marital difficulties, Stuart and
Constance currently live together with their children.  Although
she has neither legal nor physical custody of the children, Julia
considers herself a "psychological parent" to C.R. and M.R., who
are six years old and two years old, respectively.  Both children
used to visit Julia frequently, often spending the night.
          On November 17, 1999, Julia petitioned the superior court
for a long-term domestic violence protective order against Stuart
and Constance under AS 18.66.100 [Fn. 2] and an emergency twenty-
day protective order under AS 18.66.110. [Fn. 3]  In her petition,
Julia alleged that she was a victim of "domestic violence"
perpetrated against her by both Stuart and Constance.  She claimed
that Stuart -- who was living with her at the time -- had stolen
prescription medicine from her in May and has a history of domestic
violence and a drug problem.  She alleged that Constance -- who had
lived with her in the past but was now living in a separate house
-- had tried to force her way into Julia's house to talk to Stuart
and had physically assaulted Julia when Julia barred her entry. 
Julia further alleged that Constance had stolen a camera from her
house to pawn for drug money and that Constance frequently harassed
her by telephone.
          As part of her petition for a domestic violence
protective order, Julia also requested sole custody of C.R. and
M.R.  Julia alleged that Stuart and Constance were unfit parents
because of their drug abuse and their violent tendencies toward one
another, but did not allege that M.R. or C.R. had been assaulted by
either of their parents.  Julia's petition also requested that the
court condition Stuart and Constance's visitation of their children
on drug treatment and weekly urinalysis. 
          After listening to evidence from Julia, Stuart and
Constance, Superior Court Judge Brian Shortell granted an emergency
protective order against Constance but declined to issue an
emergency order against Stuart.  Judge Shortell explained that
there was probable cause to support the allegations of assault,
harassment, and burglary against Constance, but that the evidence
against Stuart was limited to one incident which occurred a long
time before Julia's petition was filed and there was no evidence
that he was currently using drugs or was a real threat to Julia.
          Judge Shortell denied Julia's request for sole custody,
finding that the custody issue was not "properly part of the
domestic violence proceeding" and that "[a custody action]
shouldn't come in disguise to the court building masquerading as a
domestic violence action."  He noted that the magistrate would
revisit the custody question in the next hearing, but expressed
deep skepticism about the magistrate's willingness to credit this
kind of custody request in a domestic violence proceeding.
          On December 15, 1999, Magistrate Suzanne Cole heard
evidence regarding Julia's request for a long-term domestic
violence protective order against Stuart and Constance.  Constance
attended the hearing telephonically.  Stuart did not appear at the
hearing and was reached telephonically only at the end of the
hearing, after he had lost the opportunity to contest the evidence
against him.  Finding that both Constance and Stuart had committed
domestic violence against Julia, Magistrate Cole issued a
protective order prohibiting Constance and Stuart from contacting
Julia without her permission except for purposes of visitation. 
The order also prohibited Stuart and Constance from possessing or
using illegal drugs and ordered them to undergo substance abuse
treatment.
          Although the magistrate granted both of Julia's requests
for protective orders, she denied the request for sole custody of
the children.  The magistrate explained that a domestic violence
hearing was the wrong forum for this kind of custody request:
               The usual posture in a domestic violence
case regarding minor children, is one parent seeking an order for
custody or visitation against another parent.  While the statute
does not exclude non-parents from obtaining custody or visitation,
the relief requested here is an extraordinary measure, which is
neither explicitly nor implicitly endorsed by the statute. . . . 
[Julia's] desire to obtain custody of her grandchildren, which may
or may not be in their best interest, would best be pursued in a
full custody case.  A domestic violence hearing is an expedited,
summary proceeding. . . .  The full resources available in a
custody proceeding, such as full custody investigations, expert
testimony, extended hearings, are not available in this summary
proceeding.  Without any evidence that the children were themselves
victims of crimes of domestic violence, this court is unwilling to
disrupt the children's lives and snatch them from their parents
without such a full-blown best interests investigation.

The magistrate also denied Julia's request for visitation rights
and refused Julia's repeated requests that Stuart and Constance
disclose their home address.
          Also at the December 15, 1999, protective order hearing,
Constance, appearing telephonically from Arizona, informed
Magistrate Cole that she did not know Stuart's whereabouts and had
not spoken to him for several days.  The magistrate later
discovered this statement to be untrue.  Although the magistrate
originally set a hearing, and Julia subsequently filed a motion to
show cause, the magistrate ultimately declined to pursue the
question of whether Constance's deliberately misleading statements
amounted to contempt of court.  The magistrate reasoned that the
court's authority was not compromised by Constance's actions
because Constance was neither under oath when she lied nor under
any order to provide information on Stuart's whereabouts.  The
magistrate noted also that Constance's misrepresentation was
neither prejudicial to Julia nor material to the case because the
court had already granted Julia's requests for protective orders
before the misrepresentation took place.     
          Julia now appeals Magistrate Cole's ruling denying her
custody request, along with Judge Shortell's earlier ruling.  Julia
also appeals three of the magistrate's other rulings:  (1) the
denial of Julia's requests for visitation, (2) the decision to keep
Constance and Stuart's address confidential, [Fn. 4] and (3) the
decision not to hold Constance in contempt of court for lying about
her knowledge of Stuart's whereabouts.
III. STANDARD OF REVIEW
          This appeal concerns the proper interpretation of AS
18.66.100 and AS 18.66.110.  The interpretation of a statute
presents a question of law, which this court reviews de novo,
adopting "the rule of law that is most persuasive in light of
precedent, reason, and policy." [Fn. 5]
IV.  DISCUSSION
     A.   Julia Is Not Entitled to Pursue Custody of M.R. and C.R.
Through Her Domestic Violence Petition.
          Alaska Statute 18.66.100 states in relevant part: 
               (a) A person who is or has been a victim
of a crime involving domestic violence may file a petition in the
district or superior court for a protective order against a
household member. . . .
               . . . .
               (c) A protective order under this section
may 
               . . . .
               (9) award temporary custody of a minor
child to the petitioner and may arrange for visitation with a minor
child if the safety of the child and the petitioner can be
protected; if visitation is allowed, the court may order visitation
under the conditions provided in AS 25.20.061. 
Julia interprets this language broadly.  She argues that under this
statute, any household member can both petition for a protective
order against another abusive household member and petition for
custody of the abuser's children at the same time.  Based on the
legislature's use of the word "petitioner" rather than "parent"
when addressing custody, Julia contends that the legislature must
have intended that non-parents could use the domestic violence
proceedings to pursue custody of an abuser's children.
          We believe that both Judge Shortell and Magistrate Cole
properly declined to entertain Julia's custody requests in the
context of a domestic violence proceeding.  While the word
"petitioner" can mean people other than "parents," we agree with
the observations of Judge Shortell and Magistrate Cole that
domestic violence proceedings are generally inappropriate for
litigation of custodial claims by parties who do not have a pre-
existing custodial relationship with the children.  As Magistrate
Cole noted, Julia's position could lead to absurd results:
          This court is wary of the interpretation
advanced by the petitioner; that any petitioner, regardless of
their legal or psychological relationship to a respondent's minor
children, could obtain custody in a domestic violence proceeding by
merely showing that the petitioner (and not the children) is a
victim of domestic violence.  For example, under this
interpretation, a parent's temporary roommate could come into court
and obtain custody of unrelated, barely known children by simply
proving that the parent had at one time assaulted the
petitioner/roommate. 

          Further, the limited purpose of the domestic violence
statute suggests that the reluctance exercised below by the judge
and magistrate to allow a grandparent's custody claim to be
litigated in a domestic violence proceeding was well advised.  As
this court recognized in Lashbrook v. Lashbrook, [Fn. 6] "the
exclusive focus of AS 18.66.100 is domestic violence. . . . [T]he
statute is designed to provide emergency relief from domestic
violence on a short-term basis, presumably until more permanent
relief can be sought and fashioned." [Fn. 7]  Domestic violence
proceedings under AS 18.66.100 and .110 are designed to be quick
and efficient.  As the magistrate noted, they are expedited summary
cases that are not well suited for litigating complex custody
issues:
          [Julia's] desire to obtain custody of her
grandchildren, which may or may not be in their best interest,
would best be pursued in a full custody case.  A domestic violence
hearing is an expedited, summary proceeding. . . .  The full
resources available in a custody proceeding, such as full custody
investigations, expert testimony, extended hearings, are not
available in this summary proceeding.
          In addition, certain procedures are available in a full
custody hearing that are unavailable in a domestic violence
proceeding.  For example, in custody hearings under AS 25.24.310
the court can appoint a guardian ad litem or lawyer from the office
of public advocacy to represent minor children in a custody or
visitation proceeding, ensuring that the children's voices are
heard and that their interests are recognized.  But in domestic
violence hearings under AS 18.66.100 the court is prohibited from
appointing a guardian ad litem or lawyer from the office of public
advocacy unless the domestic violence petition was filed on behalf
of a minor child. 
          Thus, because of the summary and expedited nature of
domestic violence proceedings, Judge Shortell and Magistrate Cole
did not err in declining Julia's request to litigate her custody
claim in the context of her domestic violence petition.  That
Julia's request was only for a "temporary" change in custody did
not make it any more appropriate for determination in a domestic
violence proceeding.  Any change in custody -- no matter how short
-- is potentially traumatic for the children involved.  Moreover,
Julia's pursuit of custody directly implicated Stuart and
Constance's constitutional rights as parents. 
          The right to the care and custody of one's own child is
a fundamental right recognized by both the federal and state
constitutions. [Fn. 8]  This court has long held that the courts
should not remove custody from a parent absent compelling
justification.  Thus, in Turner v. Pannick, [Fn. 9] this court held
that a non-parent could obtain custody from a parent only if the
non-parent proved that the parent was unfit and that transferring
custody was required for the "welfare of the child," a higher
standard than the "best interests" analysis generally used in
custody actions. [Fn. 10]  Shortcut domestic violence procedures
are ill-suited to the adjudication of fundamental parental rights. 
          We hold that trial courts have discretion to decline to
permit litigation of custody claims asserted by non-parents or
legal guardians in domestic violence proceedings.  We therefore
affirm the rulings below denying Julia's request for custody.
     B.   Julia's Other Points on Appeal Are Without Merit.
          1.   The visitation issue
          Julia claims that the lower court erred by refusing to
grant her visitation as part of the protective order against
Constance and Stuart.  Julia's request for visitation as part of
her protective order is based on the same rationale as her request
for custody.  It is just as problematic.  We conclude that her
request for visitation was properly rejected on the same
discretionary grounds employed to deny her custody request. 
          Further, visitation issues most often arise in domestic
violence proceedings in situations where the abuser is ordered to
have no contact with the victim who has custody of the parties'
children.  It may be desirable to permit the abuser to visit the
children and courts are authorized to provide for this in cases
where the safety of the victim and the children is not threatened.
[Fn. 11]  Julia's circumstances -- as a non-parent who is not a
legal custodian and has no adjudicated visitation rights -- are not
within the core contemplation of the statute.  There was therefore
no requirement that she be ensured visitation rights in the
domestic violence proceeding. 
          There are established procedures which a grandparent may
use in an effort to obtain visitation rights. [Fn. 12]  Julia
should use these rather than the summary domestic violence
procedures. 
          2.   The contempt issue
          Julia argues that Magistrate Cole erred in canceling the 
order which required Constance to show cause why she should not be
held in contempt for falsely stating to the court at a telephonic
hearing that she did not know where Stuart was.  The magistrate
declined to proceed further upon finding, among other things, that
Constance's misrepresentation was immaterial and had done no harm. 
In our view the prosecution of a contempt committed in the presence
of a judicial officer is a matter within the discretion of the
officer. [Fn. 13]  Given the findings made by Magistrate Cole, she
did not abuse her discretion in deciding to proceed no further. 
Julia's appeal on this issue is therefore without merit.
V.   CONCLUSION
          Because a domestic violence petition is an inappropriate
proceeding for a non-parent to litigate custody and visitation
issues regarding children who are currently in their parents'
custody, and the magistrate did not abuse her discretion in
declining to prosecute Constance for contempt, we AFFIRM the
rulings of the magistrate and the superior court. 


                            FOOTNOTES


Footnote 1:

     The names of the parties are pseudonyms to protect the privacy
of the children involved in this case.


Footnote 2:

     AS 18.66.100 provides in relevant part:

               (a) A person who is or has been a victim
of a crime involving domestic violence may file a petition in the
district or superior court for a protective order against a
household member.  A parent, guardian, or other representative
appointed by the court under this section, may file a petition for
a protective order on behalf of a minor.  The court may appoint a
guardian ad litem or attorney to represent the minor. . . .
               (b) When a petition for a protective
order is filed, the court shall schedule a hearing, and provide at
least 10 days' notice to the respondent of the hearing and of the
respondent's right to appear and be heard, either in person or by
an attorney.  If the court finds by a preponderance of evidence
that the respondent has committed a crime involving domestic
violence against the petitioner, regardless of whether the
respondent appears at the hearing, the court may order any relief
available under (c) of this section.  The provisions of a
protective order issued under 
               (1) (c)(1) of this section are effective
until further order of the court;
               (2) (c)(2)-(16) of this section are
effective for six months unless earlier dissolved by court order.


Footnote 3:

     AS 18.66.110 provides in relevant part:

               (a) A person who is a victim of a crime
involving domestic violence may file a petition under AS
18.66.100(a) and request an ex parte protective order. If the court
finds that the petition establishes probable cause that a crime
involving domestic violence has occurred, it is necessary to
protect the petitioner from domestic violence, and if the
petitioner has certified to the court in writing the efforts, if
any, that have been made to provide notice to the respondent, the
court shall ex parte and without notice to the respondent issue a
protective order. An ex parte protective order may grant the
protection provided by AS 18.66.100(c)(1)-(5), (8)-(12), and (16).
An ex parte protective order expires 20 days after it is issued
unless dissolved earlier by the court at the request of either the
petitioner or the respondent and after notice and, if requested, a
hearing. . . .


Footnote 4:

     Julia claims that "there is no statutory authority" for the
magistrate's decision to keep Stuart and Constance's home address
confidential and that the magistrate's decision "directly
contravenes Civil Rule 65.1."  As Julia concedes, however, this
issue is now moot because she has obtained Stuart and Constance's
home address.


Footnote 5:

     Gossman v. Greatland Directional Drilling, Inc., 973 P.2d 93,
95 (Alaska 1999) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6
(Alaska 1979)).


Footnote 6:

     957 P.2d 326 (Alaska 1998).  Lashbrook involved a father who
lost custody in a protective order proceeding filed on behalf of
his children by his ex-wife after he assaulted his girlfriend. See 
id. at 327.  The father was later convicted of assaulting his
girlfriend and the mother moved for the temporary custody
modification to be made permanent.  See id. at 327-28.  The court
granted her motion and this court reversed, holding that the
domestic violence proceeding had not provided the father with
adequate notice and opportunity to litigate the custody issues
properly.  Therefore, a remand for a full "best interests" hearing
was needed.  See id. at 328-29.


Footnote 7:

     Id. at 329.


Footnote 8:

     See e.g., In re K.L.J., 813 P.2d 276, 279 (Alaska 1991) ("The
right to the care, custody, companionship, and control of one's
children 'undeniably warrants deference and, absent a powerful
countervailing interest, protection.'") (quoting Lassiter v.
Department of Soc. Servs., 452 U.S. 18, 27 (1981)).


Footnote 9:

     540 P.2d 1051 (Alaska 1975).


Footnote 10:

     See id. at 1054 ("In order to satisfy the 'welfare of the
child' requirement, the non-parent must show that it clearly would
be detrimental to the child to permit the parent to have
custody.").


Footnote 11:

     See AS 18.66.100(c)(9).


Footnote 12:

     See AS 25.20.065.


Footnote 13:

     Cf. Denovchek v. Board of Trumbull County Comm'rs, 520 N.E.2d
1362, 1364 (Ohio 1988) ("[S]ince the primary interest involved in
a contempt proceeding is the authority and proper functioning of
the court, great reliance should be placed upon the discretion of
the trial judge." (citing United States v. United Mine Workers of
America, 330 U.S. 258, 303 (1947))).