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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

Michelle M. v. Richard R. (02/29/2008) sp-6232, 177 P3d 830

     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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