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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Michelle M. v. Richard R. (02/29/2008) sp-6232
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,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| MICHELE M., | ) |
| ) Supreme Court No. S- 12510 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-00- 7421 CI | |
| v. | ) |
| ) O P I N I O N | |
| RICHARD R., | ) |
| ) No. 6232 - February 29, 2008 | |
| Appellee. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark Rindner, Judge.
Appearances: Michele M., pro se, Anchorage.
No appearance by Appellee.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices.
MATTHEWS, Justice.
I. INTRODUCTION
Michele M. and Richard R. dispute who should have
custody of their son, Charles.1 Richard and Michele initially
had agreed that Michele should have primary legal and physical
custody over Charles and Richard would have some visitation
rights. Richard later moved to gain full custody of Charles
after it became clear that Charles was doing poorly in school due
in part to a high number of unexcused absences. Richard was
temporarily awarded custody in April 2006. After a two-day trial
in late 2006, Superior Court Judge Mark Rindner made Richards
primary physical and legal custody of Charles permanent. Michele
now appeals that award of custody. She argues that the superior
court improperly weighed several best interest factors and did
not take into account Richards history of domestic violence.
Michele is arguing pro se. Richard has elected not to
participate.
II. FACTS AND PROCEEDINGS
Charles was born in 1992 to Michele and Richard.
Michele and Richard have never been married to each other.
Richard was briefly married to Theresa C. a few years after he
met Michele. Michele and Richard lived together for one year
before Charles was born, and stayed together until Charles was
about six months old. Michele had primary custody of Charles,
and an informal visitation schedule was maintained by the
parties; basically, Richard would have Charles for one or two
days a week. Richard had one child with his ex-wife, a daughter
named Jessica, and has full legal and physical custody of her.
He now lives with his partner, Carol, and her daughter from a
previous relationship, Jennifer.
The visitation arrangement made by Charles and Michele
worked, or seemed to, for several years. In April 2000, however,
Richard asked that he be able to see Charles on Sundays and
Mondays, in order to better accommodate his work schedule.
Michele initially agreed. But after trying out this arrangement
for a few months, Michele petitioned for sole legal and primary
physical custody of Charles. She alleged that Richard was being
uncooperative with her and was behaving irresponsibly around
Charles, citing one instance where Richard went to a bar and made
[Charles] sit outside of the bar while he sat in the bar drinking
and partying. She was also concerned about the amount Richard
was paying in child support.
Richard moved to continue joint legal custody and
maintain the recently agreed-to visitation schedule (where
Charles would visit Richard on Sundays and Mondays); he also
proposed mediation. The parties tried mediation but it was
unsuccessful, and they went to trial in 2001. In its findings of
fact and conclusions of law made on October 2, 2001, the court
awarded the parties joint legal custody but gave Michele physical
custody and the right to decide which extracurricular activities
that [Charles] shall be involved in. The court also set out an
elaborate visitation schedule. That visitation schedule was
modified somewhat the following year in a stipulated agreement
made by the parties.
The superior court made two points in its 2001 findings
of fact that are germane to this present case. First, the court
noted that there is some evidence that [Charles] has had a
problem with attendance and tardiness in school. At the time,
the court seemed to divide responsibility for Charless absences
and tardiness equally between the parties.
Second, the court noted that [a]s to [Richard], he
appears to have a history of entering into relationships with
women who have alcohol problems which lead to domestic violence
problems. The court continued that [a]lthough there is a record
of some domestic violence issues having been prosecuted against
[Richard] and some prosecuted by him regarding his subsequent
relationships, the court finds that these incidences are
irrelevant to the issues in this case. The court found more
telling the fact that Richard was awarded full custody of
Jessica, his daughter from a previous marriage.
In September 2004 Richard moved for joint legal custody
with a provision for disputed issues to be resolved by Richard
and for the parties to have shared physical custody, on a one
week on, one week off schedule. In his affidavit supporting his
motion, Richard expressed concern that Charles had been absent
numerous times from school during the years in which Michele had
primary physical custody of Charles and cited [Micheles] utter
failure in meeting [Charless] educational needs. According to
Richards motion, during the 2003-2004 school year [Charles]
missed approximately 57.5 days of school and [m]any of the days
that Mother did get [Charles] to school, he was several hours
late. At this point, Richard was living with another woman,
Carol, who had custody of her daughter, Jennifer.
At a settlement conference on September 2, 2005, the
parties entered into an agreement. In that agreement, the
parties maintained joint legal custody of Charles, but physical
custody was changed from primary physical custody with [Michele]
to shared physical custody. The agreement provided that the
number of days Richard would have custody would increase until
(in summer 2007) the visitation schedule would become one week on
and one week off. The agreement also added provisions that,
should Charless grades fall or his school absences increase,
Richard would have control over where Charles went to school and
what activities he could participate in, especially hockey.
Because of Charless continued poor grades, in December 2005
Richard was granted (over Micheles objection) the right to
transfer Charles to a school closer to Richards residence.
On January 31, 2006, Richard filed a motion for primary
physical and legal custody of Charles. Richard stated in his
affidavit accompanying the motion that [Charles] missed an
excessive amount of school during the first semester of the
school year, and he reported that Charles had been absent
eighteen times from one of his classes. Michele challenged the
motion. A hearing was scheduled for April 13, 2006. Michele
indicated that she was not prepared for a full trial on whether
Richard should have physical custody of Charles. The court
postponed the trial but entered an interim order that awarded
sole legal custody and primary physical custody to Richard.
Michele states in her brief that she allowed this change in
custody based on my unwillingness to fight in court anymore and
the fact that I could not afford an attorney.
During the time the interim order was in place, Michele
filed a request for emergency intervention for Charles. In her
notice of the filing, Michele wrote that [Charles] needs to be
placed in an in-patient treatment center . . . for intensive
therapy to deal with his current issues that include past
physical abuse and current mental and emotional abuse from his
father, Richard. Richard denied the accusations made in Micheles
motion for emergency intervention, and he accused Michele of
withholding visitation of Charles from him.
A hearing was held over the course of two days,
November 29 and December 4, 2006. At the trial, Michele (who
appeared pro se) called several witnesses, including police
officers, Charless social worker, and Theresa, Richards ex-wife.
Charless social worker, Heather Rough, testified that Charles
considered Richards home chaotic and stressful. She also noted
that Richard was being investigated for alleged abuse against his
daughter Jessica. One police officer testified about taking a
report of abuse against Jennifer, and Heather Rough testified
that Jennifer had been removed from Richards home for a short
time. Charless therapist said that Charles had told him that
there was violence in the household. Theresa testified that
Richard had struck her.
At the end of the hearing, the court awarded primary
physical and sole legal custody to Richard based on the factors
listed in AS 25.24.150 and made its interim order permanent. The
court went through, in order, the various statutory best
interests factors in AS 25.24.150, finding that nearly all of
them favored the placing of Charles with Richard.2 In general,
the court allowed that Richard had been heavy handed toward
Charles at times, but felt that Charles had been manipulating his
mother and needed the discipline which his father seemed able to
provide.
In assessing Charless needs (the first statutory
factor), the court maintained that Charless educational progress
had been severely hampered by his excessive absenteeism. It
briefly discussed Charless physical health and found it not to be
an issue and that Michele exaggerated Charless health problems
(Michele has repeatedly alleged that Charles suffered because of
his allergies whenever he stayed with Richard). The court
further concluded that Michele had demonstrated a total lack of
ability to meet Charless needs, especially his educational needs,
and that Richard was in a better position to do so (the second
factor).
The court found that Charles was, in its opinion,
immature and manipulative; as a result, the court did not credit
Charless preference to be in the custody of his mother (the third
factor). Charles was fourteen at the time of the ruling.
For the fourth statutory factor, the love and affection
existing between the child and each parent, the court observed
that it was obvious that Charles loved his mother and that both
parents loved Charles. The relationship between Richard and
Charles was strained at best, according to the court. But the
court found that the environment of Charless fathers house was
better for Charles and that it was desirable that the father
continue with custody (the fifth factor). The court held that
Richard and Michele did not work especially well together in
supervising Charles, but that they generally obeyed court orders,
if reluctantly (the sixth factor).
The court ruled that there was no competent evidence of
significant domestic violence between Richard and Carol or by
Richard against his children (the seventh factor). There was one
report of domestic abuse still under investigation at the time of
the courts ruling and the court expressed concern about the
number of allegations, but declared that there was way too much
calling of the police by both Richard and Michele and too much
investigation by others. The accusations of domestic abuse,
according to the court, were mostly a proxy for disagreements
between Richard and Michele. The court noted that Michele had
been arrested for violating a domestic violence restraining order
obtained by Richard, but observed that there was no real threat
to Richard presented by Michele. The court concluded that there
was no evidence whatsoever that Charles was being harmed or hurt
in Richards care. The court found that substance abuse was not a
serious concern for either parent (the eighth factor).
III. STANDARD OF REVIEW
This court will normally defer to the trial courts
decision on custody. We will not reverse a trial courts
resolution of custody issues unless, after a review of the entire
record, we are convinced that the trial court abused its
discretion or that its controlling factual findings are clearly
erroneous.3 Abuse of discretion occurs when a trial court fails
to consider statutorily mandated factors, weighs factors
improperly, or includes improper factors in its decision.4 We
will conclude that a trial courts factual finding is clearly
erroneous when we are left with a definite and firm conviction
that the . . . court has made a mistake.5 In general, we do not
readily second guess a trial courts custody determination6
because it is the function of the trial court, not of this court,
to judge witnesses credibility and to weigh conflicting evidence.7
IV. DISCUSSION
Michele makes three major claims in her brief, apart
from evincing a general dissatisfaction with the courts custody
ruling. She first argues that the court placed too much emphasis
on Charless educational needs, to the exclusion of other factors
which she claims favor her. Second, she alleges that the court
ignored evidence that Richard had committed domestic abuse in the
past and that his household was one in which Charles would
witness and be subject to abuse. This claim is actually two
arguments: (1) that the court improperly discounted evidence of
domestic violence, which should have been given weight in the
overall best interests analysis, and (2) that the court should
have applied AS 25.24.150(g) which states that if the court finds
a parent has a history of perpetrating domestic violence there
should be a presumption against awarding custody to that parent.
Third, Michele argues that Charless preference for living with
her should have been given greater weight. We affirm the lower
courts decision on the first and third points, but remand for
further fact finding on the issue of domestic violence.
A. The Superior Court Did Not Abuse Its Discretion in
Placing Significant Weight on Charless Educational
Needs.
Michele initially argues that the court erred in
considering the best interests of the child, which include his
physical, emotional, mental, religious, and social needs.8
Michele contends that the order awarding custody to Richard gave
an overriding importance to [the] one factor of improving
Charless performance at school. She cites Smith v. Weekley,9 a
case in which this court remanded a custody decision because the
superior court seemed to rely exclusively on one statutory factor
(the perceived stability of leaving the child in the custody of
his father). Michele believes that the court similarly abused
its discretion in placing too much weight on Charless educational
needs.
The court did place an emphasis on Charless education,
identifying it as one of Charless greatest needs under AS
25.24.150(c)(1). But such an emphasis is unsurprising in this
case. The September 2, 2005 custody order, which made physical
custody of Charles shared, contained a stipulation that Richard
would assume responsibility for choosing which school [Charles]
attends and in which activities he may participate if Charles did
not maintain a C average or was absent more than two days per
semester.10 And it was because of Charless continued absenteeism
that Richard moved for primary custody, leading to this latest
trial. Based on the evidence, the court found that Michele had
been unable to meet Charless educational needs. In contrast, the
court stated that Charles has a long way to go, but [was] clearly
making progress in school under Richards care. The court also
heard testimony from two faculty members at Charless school
indicating that he was attending classes and having a better year
compared to last year.
Moreover, this case is distinguishable from Smith. In
that case, there was evidence that the superior court did not
consider all the statutory factors and instead based its decision
on only one statutory factor.11 Here the court did consider all
the factors. We find no abuse of discretion in the superior
courts decision to prioritize Charless education needs given
Charless need to make progress in that area.
B. The Superior Court Did Not Make Appropriate Findings
Regarding Evidence of Domestic Violence by Richard.
In its October 2, 2001 findings of fact and conclusions
of law memorandum, the court wrote that [Richard] . . . appears
to have a history of entering into relationships with women who
have alcohol problems which lead to domestic violence problems.
The court added that there is a record of some domestic violence
issues having been prosecuted against [Richard] but concluded
that the court finds that these incidents are irrelevant to the
issues in this case. The 2001 findings found that the fact that
Richard was awarded custody of his daughter from an earlier
marriage was more telling than his record of domestic violence.
Because this memorandum was issued prior to the 2004
amendment to the best interests statute, the court confined its
analysis of Richards domestic violence to a determination of
whether custody with Richard or Michele would be in Charless best
interests. The court determined that there was not anything
about domestic violence with regard to either party that warrants
consideration in this decision. At that time, Michele was
awarded custody.
At the 2006 hearing, Michele called witnesses who
testified to alleged incidences of domestic violence against
Jessica (Richards daughter from a previous marriage), against
Jennifer (the daughter of Richards current partner), and against
Theresa (Richards first wife). Whether there was any substance
to the contemporary allegations involving Richards children was
not established; there were certainly allegations of domestic
violence, but not much objective corroboration of them. Jennifer
was removed from Richards home for a short period of time,
according to a social worker called as a witness by Michele. An
incident of abuse by Richard against Jessica was still under
investigation at the time of the trial. Jessica and Charles seem
to have also reported cases of abuse, but these do not seem to
have been substantiated by any outside authority. The court also
found Charless testimony as to abuse to be unreliable.
The allegations of abuse from Richards previous
relationship with Theresa, however, are somewhat more
substantiated. Theresa testified at the 2006 hearing to being
shoved by Richard in 1998. She was granted a restraining order
against Richard; Richard was charged with domestic violence at
that time. Theresa later dropped the charge in the hopes of
reconciling with Richard. Theresa also stated, bluntly, that
there had been plenty of domestic violence in her relationship
and marriage with Richard and that Richard had struck her. The
court seemed skeptical of Theresas testimony based on the fact
that Richard was ultimately awarded custody of his daughter with
Theresa.
But in its most recent ruling, the court did not
revisit the older allegations against Richard made by Theresa.12
Instead, the court focused on the flurry of domestic abuse
allegations that had recently been made by Michele and others.
Most of these the court found to be spurious and unsubstantiated.
The court stated at the conclusion of the trial that there was no
competent evidence which supported the claim that Richard
recently engaged in acts of domestic violence. In one exchange
with Michele during the trial, Michele seemed to acknowledge the
near total lack of objective evidence of recent abuse by Richard.13
In her brief, Michele argues that [t]he trial court had
an obligation in the best interests of [Charles] to consider
Theresas [Richards first wifes] testimony of several instances of
domestic violence and many domestic violence petitions filed by
both Richard and Theresa . . . as competent evidence . . . and
consider the criminal charge . . . under AMC 8.05.030(B)(1)
Assault DV.14 In general, she maintains that the courts findings
regarding recent domestic abuse do not merit deference because
they contradict[] the evidence that was presented at trial.
Michele further insists in her brief that AS 25.24.150 as amended
should apply in this case, and that Richard should be required to
rebut the presumption that he should not have custody of Charles
because he has a history of domestic violence.15
If we treat domestic violence as simply a factor in the
best interests analysis, then the superior courts decision as to
Charless best interests should stand. Much of the courts
decision turns on its evaluation of the credibility of Charles,
Michele, and the several witnesses Michele called.16 The court
found, based on their testimony and the lack of objective
corroboration of domestic violence, that Richard was not abusive
to Charles and that the evidence tying Richard to other
contemporary instances of abuse was weak, at best. The court was
within its discretion in finding that Charles would not be going
to an abusive home if Richard were to be awarded custody.
The more difficult question is whether Richard should
have been subject to the presumption found in AS 25.24.150(g),
which applies to those who have been found to have a history of
perpetrating domestic violence. In its earlier decision the
court seemed to rule that Richard has had a history of domestic
violence (there is a record of some domestic violence issues
having been prosecuted against [Richard]).17 At the latest trial,
the court mentioned in passing the previously made factual
findings on domestic violence.18 But the court did not note any
potential tension between the current ruling and the 2001
memorandum.
Alaska Statutes 25.24.150(c)(6) and (7) both stress
that a court in a child custody hearing should consider possible
evidence of domestic abuse. In 2004 the legislature amended AS
25.24.150 to create a rebuttable presumption against placing a
child in the custody of a parent with a history of perpetrating
domestic violence.19 In a recent case interpreting the new
amendment, Puddicombe v. Dreka, this court held that when the
record shows that domestic violence has occurred and the court so
finds, it is plain error for the court not to make findings as to
whether the domestic violence amounted to a history of
perpetrating domestic violence.20 If a history of domestic
violence is found, then the lower court must test, per AS
25.24.150, whether the presumption against awarding custody to
the parent with a history of abuse has been overcome.21
In Puddicombe the trial court heard extensive testimony
on domestic violence and made a finding that domestic violence
. . . was mutual between the parents.22 However, despite making
this finding, the trial court in Puddicombe did not go on to
consider, explicitly, whether the violence it found was serious
enough to constitute a history of perpetrating domestic violence
under AS 25.24.150(h). A parent has a history of perpetrating
domestic violence, according to the statute, if the court finds
that during one incident of domestic violence, the parent caused
serious physical injury or the court finds that the parent has
engaged in more than one incident of domestic violence.23 In
Puddicombe, we held that the lower court record demonstrated that
there were incidents of domestic violence, and that it was plain
error for the court not to make findings as to whether the
domestic violence amounted to a history of perpetrating domestic
violence.24 Accordingly, we remanded the case for further
findings as to whether the violence by either party satisfied the
statutory definition of perpetrating domestic violence.
We are faced in the present case with an analogous
situation. The superior court heard testimony, especially
testimony from Theresa, that Richard had committed acts of
domestic violence. Theresa also testified to one incident of
shoving that resulted in physical injury. In addition, the
superior court incorporated its previous findings on domestic
violence, made in its 2001 memorandum. Those findings strongly
suggested that Richard had engaged in some acts of domestic
violence.
The evidence of domestic violence in this case is not
as overwhelming as it appeared to be in Puddicombe. Indeed, the
court may have implicitly determined that Richards past acts of
domestic violence were neither numerous nor significant and so
did not amount to a history of perpetrating domestic violence
under AS 25.24.150(h). In the present case, the court did not
make any findings that domestic violence had occurred, or was
even a serious concern: the thought seems to have been that there
was a lot of smoke but not much fire.
But while this may be a correct assessment of the
flurry of recent allegations made by Michele and Charles, the
same does not seem to be obviously true of the testimony of
Theresa. Here, there was unrebutted testimony by a witness as to
the existence of domestic abuse; moreover, although the superior
court in this case did not make any findings regarding Richards
domestic violence against Theresa, it did do so in its 2001
memorandum.25 We find that the cumulative impact of all the
evidence was enough to satisfy the standard of Puddicombe: the
record shows domestic violence has occurred and the court has
found (in a previous holding) that it occurred. As a result, it
was plain error for the court not to further determine whether
Richards previous acts of domestic violence constituted a history
of perpetrating domestic violence under AS 25.24.150(h). If the
court finds that Richard has such a history, then the path
charted in subsection .150(g)-(i) must be followed.26
C. The Superior Court Did Not Abuse Its Discretion by
Disregarding Charless Preference To Live with His
Mother.
Michele also challenges the superior courts decision
not to give any weight to Charless preference for living with his
mother. In making its ruling, the court noted that the relevant
standard under the statute was not merely chronological age, but
also capacity.27 Although Charless clear preference was for his
mother and Charles was normally of an age where his preference
should be given some weight, the court believed that Charles
lacked the emotional maturity for his preference to be credited.
Charles was deemed by the court to be too manipulative and likely
preferred his mother (the court intimates) because she was more
easily manipulated.
In her brief, Michele cites testimony as to Charless
preference, and notes various persons who have commented on
Charless maturity. She also cites the courts statement that
Charles has good social skills. She ends by listing reasons why
Charles might rationally prefer to live with his mother, such as
his belief that his fathers house is chaotic and stressful.
Trial courts have discretion in determining what weight
to give a childs preference. In some cases, the childs
preference can be a deciding factor, if that choice is well-
reasoned and made by a mature teenager.28 However, in cases where
a child does not show maturity or there is evidence that the
choices were motivated by bad reasons, the court may choose to
disregard the childs preference, or to give it little weight.
In Jenkins v. Handel, for example, this court found
that the preferences of two children (ages thirteen and fifteen)
were not to be given much weight because their preferences, and
the reasoning behind them, evidenced a great need for parental
supervision.29 A closely related rationale seems to motivate the
superior courts conclusion in this case. The court believed that
Charles had been successfully manipulating his mother to miss
school and to play hockey, and that his preference for living
with his mother reflected his desire to continue this pattern of
manipulation. The court stated that Charles needed the
discipline that his father would (it hoped) provide and
accordingly disregarded Charless clear preference to be in the
custody of his mother. The court did not abuse its discretion in
giving more weight to Charless need for discipline than to
Charless preference to live with his mother.
V. CONCLUSION
The court did not abuse its discretion in emphasizing
Charless educational needs, nor did it abuse its discretion in
disregarding Charless stated preference to live with his mother.
However, given the evidence presented at trial and the superior
courts 2001 decision which indicated the possibility that Richard
may have a history of perpetrating domestic violence under AS
25.24.150(h), we VACATE the award of custody to Richard and
REMAND for findings in accordance with AS 25.24.150(g)-(i). The
court may order a supplemental hearing if in the judgment of the
court a supplemental hearing will be useful or necessary.
_______________________________
1 Pseudonyms are used for the children throughout this
opinion to protect their privacy.
2 The best interest factors are: (1) the physical,
emotional, mental, religious, and social needs of the child; (2)
the capability and desire of each parent to meet the childs
needs; (3) the childs preference to live with either parent; (4)
the love and affection between the child and both parents; (5)
the length of time the child has lived in a stable environment,
and the desirability of maintaining continuity; (6) the
willingness of each parent to foster a relationship between the
child and the other parent; (7) any evidence of domestic
violence; (8) evidence of substance abuse. The court may also
consider any other factors it deems pertinent. AS 25.24.150(c).
3 Valentino v. Cote, 3 P.3d 337, 339 (Alaska 2000).
4 Gratrix v. Gratrix, 652 P.2d 76, 80 (Alaska 1982).
5 Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska
1998) (citation omitted).
6 Dingeman v. Dingeman, 865 P.2d 94, 96 (Alaska 1993).
7 Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999).
8 AS 25.24.150(c)(1).
9 73 P.3d 1219, 1227 (Alaska 2003).
10 Richard eventually was granted the right to choose
Charless school under this agreement.
11 Smith, 73 P.3d at 1227.
12 The court noted that Theresa testified. But the court
only cited her testimony in relation to abuse allegations made
about her daughter, Jessica, not about the abuse she claimed that
she suffered.
13 There was this exchange between the court and Michele:
Judge: Weve heard from many police
and every time the police have come
and investigated . . . they found
that [Charles] was either
manipulating the situation or was
exaggerating the situation. Do you
recognize that?
Michele: I do recognize that. However, I think
that Richard . . . is a better liar.
Judge: So even though third parties who
are trained to make those kinds of
determinations are there, you take
[Charless] side? . . . .
Michele: . . . [For the officers,] its hard to
make a ten minute assessment of a
situation . . . .
Michele went on to say that she felt it was better to
err on the side of believing Charless accusations of abuse,
rather than disbelieving them.
14 Michele speculates that one reason the court did not
consider Theresas testimony was because it had occurred before
the effective date of the 2004 domestic violence amendment to the
best interests statute.
15 The title of section III of Micheles brief is The Court
Erred By Failing To Apply AS 25.24.150(g) to This Case.
16 See Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999) (function of trial court to assess credibility of
witnesses).
17 One might believe that the finding that Richard has a
history of domestic violence is less than direct: the court only
refers to history of entering into relationships that led to
domestic violence problems as well as a record of some domestic
violence issues having been prosecuted against [Richard].
18 The court stated: I made findings about that in my
original custody order back in 2001.
19 AS 25.24.150(g).
20 167 P.3d 73, 77 (Alaska 2007).
21 Id. (If such a history is found then the path charted
in subsection .150(g)-(i) must be followed.).
22 Id. at 75-76.
23 AS 25.24.150(h).
24 167 P.3d at 77.
25 The 2001 decision, however, does not name Theresa as a
person that Richard has had domestic violence problems with: in
fact, it does not name anybody.
26 Puddicombe, 167 P.3d at 77. According to AS
25.24.150(g)-(i), there is a rebuttable presumption against
awarding custody to a parent with a history of domestic violence.
However, that presumption can be overcome if a parent has met
certain requirements, such as attending a program for batterers
and not engaging in substance abuse.
27 See AS 25.24.150(c)(3) (best interests of child
includes childs preference if the child is of sufficient age and
capacity to form a preference).
28 See, e.g., Valentino v. Cote, 3 P.3d 337, 340-41
(Alaska 2000) (well-reasoned preference of fourteen-year-old was
deciding factor).
29 10 P.3d 586, 590 (Alaska 2000).
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