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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Red Elk v. McBride (3/13/2015) sp-6987

Red Elk v. McBride (3/13/2015) sp-6987

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                    

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



KEITH RED ELK,                                        )  

                                                      )        Supreme Court No. S-15240  

                  Appellant,                          )  

                                                      )        Superior Court No. 3HO-11-00061 CI  

         v.                                           )  

                                                      )        O P I N I O N  

LAURA B. MCBRIDE,                                     )  

                                                      )       No. 6987 - March 13, 2015  

                  Appellee.                           )  

_______________________________ )  



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

                                                                                 

                  Judicial District, Homer, Charles T. Huguelet, Judge.  
 



                  Appearances:  Phil N. Nash, Kenai, for Appellant.  Laura B.
  

                  McBride, pro se, Homer, Appellee.  
 



                  Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
  

                                                                                  

                  Bolger, Justices.
  



                  STOWERS, Justice.
  



I.       INTRODUCTION  



                  Two  parents  disputed  the  legal  custody  and  visitation  rights  for  their  



daughter; the mother resides in Homer and the father resides on the Fort Peck Indian  

                                                                  



Reservation in Montana.  The superior court awarded sole legal custody to the mother  



because it concluded that the parties could not communicate effectively to co-parent their  

                                                                                                  



daughter.  The court ordered unsupervised visitation between the father and the daughter  

                                                                       



in Alaska, but prohibited visitation on the reservation until the daughter turned eight.  


----------------------- Page 2-----------------------

Although the superior court did not abuse its discretion when it decided legal custody,  

                                                                    



it failed to fully justify its decision when creating its restrictive visitation schedule and  

                                                                                              



allocating  visitation  expenses.    Consequently  we  remand  for  further  proceedings  



consistent with this opinion.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    In 2009 Laura McBride, who was living in Homer, left to attend a welding  

                                                         



certification program in Poplar, Montana, on the Fort Peck Indian Reservation.  There  

                                                                                                                      

she met Keith Red Elk, who was the Operations Manager for Fort Peck Tech Services1  

                                                  



and also her instructor for the program.  McBride and Red Elk became friends, and began  



a romantic relationship four or five months later.  After the end of the welding program  



McBride was offered a position welding for Fort Peck Tech Services.  



                    McBride learned that she was pregnant sometime around New Years 2010.  

                                                                                            



She felt that her relationship with Red Elk changed after she became pregnant.  McBride  

                                                                                   



alleges that Red Elk threatened to fire her, made her leave his home, and one time pulled  

                                                              



back his hand as if he intended to hit her.  McBride decided to return to Homer, mainly  

                                                                                             



because she felt that Red Elk was controlling.  Red Elk made it clear that he believed  

                                                    



McBride  would  not  be  able  to  support  herself  on  her  own.    He  also  believed  that  



                                                                      

McBride was only temporarily going to Homer and would return to Montana where she  



would raise their child.  



                                                  

                    When McBride first returned to Homer she and Red Elk spoke on the phone  



daily.    But  their  relationship  quickly  deteriorated  to  the  point  where  only  email  



          1  

                                                                                                        

                    Fort  Peck  Tech  Services  is  the  largest  employer  on  the  reservation,  

employing 30 workers, and it brings in the lion's share of the reservation's revenue.  As  

operations manager at Fort Peck Tech Services, Red Elk is in charge of all hiring and  

firing decisions.  



                                                             -2-                                                           6987  


----------------------- Page 3-----------------------

communication was effective.  Even using email, the couple did not communicate well;                        



instead "[e]ach gave speeches to the other."                                Red Elk was depressed that McBride did          



not want to return to Poplar, and he was very uncomfortable with McBride's plans for                   



their daughter's birth:  McBride wanted to deliver the baby in her cabin and Red Elk   



wanted the child to be born in a hospital.  



                               2  

                                 was born in August 2010.  Red Elk traveled to Homer in September  

                      Vera               



and stayed for 11 days to visit with his daughter.  During the visit McBride reiterated her  

                                                   



belief  that  they  could  not  work  things  out  because  Red  Elk  was  too  controlling.  

                                        



                      In  October  McBride  and  Vera  traveled  to  North  Dakota  for  a  funeral.  

                                                                             



Red Elk picked them up at the airport and drove them to the funeral.  Over McBride's  



objections, Red Elk stopped in Poplar on the way.  McBride and Red Elk fought, and  



McBride told Red Elk to leave once he had dropped them off at the funeral.  



                                                         

           After returning to Homer, McBride emailed Red Elk that she wanted to take a  



break  from  communication.    In  response,  Red  Elk  left  six  intoxicated  messages  on  



                                                                                           

McBride's answering machine threatening to kill her,  threatening her with legal action,  



                            

and threatening to take Vera to the reservation.  Afterward Red Elk did not remember  



                                     

leaving the messages and insinuated that it was McBride's fault because she drove him  



to  drink.    McBride  applied  for  and  received  a  long-term  protective  order.    Red  Elk  



                                                                                                    

unsuccessfully tried to dissolve the protective order on two separate occasions.  He also  



hired a private investigator to follow McBride.  



           B.         Proceedings  



                                                             

                      Red Elk filed a request for emergency custody in the Fort Peck Tribal Court  



in December 2010.  He alleged that:  (1) McBride lived in a remote place; (2) she was  



threatening suicide and had a mental disorder; and (3) she "refused to feed the child for  



           2          A pseudonym has been used to protect the child's privacy.  



                                                                      -3-                                                                    6987  


----------------------- Page 4-----------------------

three . . . days after birth."3   Red Elk was represented by a tribal lay advocate in the tribal  

                                         

                                                                                   



court proceeding; McBride appeared pro se.  In March 2011 the Fort Peck Tribal Court  



"denied jurisdiction over the cause of action" and dismissed Red Elk's petition.  Red Elk  



                                                    

appealed the dismissal to the Fort Peck Court of Appeals, but in August 2011 the Fort  



Peck Court of Appeals affirmed the trial court's dismissal.  



                                                                                                                  

                    In the interim, in February 2011, McBride filed a complaint for custody in  



the  Alaska  Superior  Court  in  Homer.    She  did  not  advise  the  superior  court  of  the  



                            

pending action in the Fort Peck Tribal Court.  In July Red Elk filed a motion in the  



                                                                                                        

superior court to defer to the action in the Fort Peck Tribal Court, but his motion failed  



to mention that the tribal court action had been dismissed.  After the Fort Peck Court of  



                            

Appeals' decision became public, counsel for McBride brought it to the superior court's  



attention.  The court denied Red Elk's motion to defer.  



                                                    

                    In January 2012 Red Elk filed a new petition in the Fort Peck Tribal Court.  



                                                  

He  alleged  that:    (1)  Vera  had  not  been  given  her  immunizations;  (2)  she  had  an  



                                                                                                   

unexplained scar on her forehead; and (3) she was wearing shoes that were too small.  



The  tribal  trial  court  dismissed  the  petition  for  lack  of  jurisdiction.    Red  Elk  again  



appealed.  



                    Trial in the superior court, set for January 2012, was continued in order for  



Red Elk to obtain new representation.  Once Red Elk obtained new counsel, his attorney  



                                                                         

moved to file amended defenses, counterclaims, and an amended answer.  The superior  



court denied his motion.  



                                                                                                          

                    The custody trial was ultimately held in December 2012.  Red Elk argued  



                         

for shared legal custody with open and frequent visits on the reservation starting when  



          3         Red Elk also made these same allegations to the Alaska Office of Children's  



Services  (OCS)  in  Homer.    OCS  conducted  a  home  visit  and   found  the  concerns  

unsubstantiated.  



                                                              -4-                                                           6987  


----------------------- Page 5-----------------------

Vera turned four.  He wanted Vera to visit the reservation as soon as possible so she  



could begin learning about her Sioux heritage.  He also raised concerns with many of  



                                               4  

                                                  McBride asked for sole legal custody and a restriction  

McBride's parenting decisions. 



                                                                              

that Vera not be allowed to visit the reservation until she turned twelve because McBride  



                                                                                                      

was afraid that Red Elk would file an emergency petition alleging neglect in order to  



                                                        

keep Vera there. Margaret Coleman, a visitation supervisor, also testified.  She described  



                                                                                                       

Red Elk as charming, charismatic, and very attentive and appropriate with Vera.  But she  



                                                                                                      

testified that some of Red Elk's conduct during the visit alarmed her and made her think  



                                                                                           

that Red Elk was a "flight risk."  She was concerned because Red Elk seemed to feel that  



he had a "divine right" to Vera and "was going to war" with McBride.  



                    The superior court awarded primary physical and sole legal custody to  



McBride.    The  court  concluded  that  "[c]ooperation  and  meaningful  communication  



                                                                                                           

between Ms. McBride and Mr. Red Elk [are] not possible at this time."  The court found  



                                              

that  "Mr.  Red  Elk  appears   to  be  incapable  of  maintaining  a  relationship  with  



Ms.  McBride  unless  he  is  the  dominant  party"  and  that,  due  to  differences  in  their  



outlooks  on  life,  they  could  not  communicate  effectively.    It  also  noted  "very  little  



                                                       

history of compromise."  The court ordered McBride to begin teaching Vera about her  



           

Sioux  heritage and allowed that Red Elk could provide supplemental materials with  



McBride's cooperation.  



                                                                                                              

                    The  superior  court  ordered  unsupervised  visitation  with  Vera,  but  it  



concluded that "if [Vera] visits her father on the reservation he is very likely to file a  



                                                                   

petition alleging neglect with the tribal court and ask for emergency custody."  The court  



                                                                                                   

based this conclusion on its finding that Red Elk had  a  history  of making "false or  



          4         Mainly these were:  (1) McBride's decisions to have the birth at home;  



                                                                          

(2) her delay in getting Vera immunized; (3) her decision to start toilet training at four  

months; and (4) her use of sign language when Vera was learning to talk.  



                                                              -5-                                                            6987  


----------------------- Page 6-----------------------

exaggerated claims of abuse."  As a consequence, the court ordered that visitation be  



                                                                                         

restricted to Alaska until Vera turned eight.   The court also declined to order Vera's  



presence on the reservation for a naming ceremony "[w]ithout adequate assurances or  



                                                                                                            

guarantees" that Red Elk would not "use the occasion of a naming ceremony to hold  



                                                                                                                           

 [Vera] on the reservation pending a decision by the tribal court on renewed allegations  



                                                                                                                   

of abuse or neglect."  The superior court laid out a schedule of tiered visitation allowing  



greater  visitation  as  Vera  grew  older,  and  clarified  that  Red  Elk  must  "reasonably  



satisf[y]" the quota from the previous tier of visitation before moving to the next tier.  



                          Red Elk filed two motions for reconsideration of the superior court's orders.  



                                                                              

Relevant to this appeal, he argued that:  (1) the cost of traveling to Homer to fulfill the  



                                                                                                                           

tiered visitation order was prohibitive; (2) it was not in Vera's best interest to wait so  



                                                                                                                               

long to travel to the reservation given that members of his family had a history of early  



                                                                                             

death; (3) the restrictive visitation schedule was a penalty for exercising his right to file  



                                                                                                        

proceedings in tribal court; (4) Vera would be unable to learn about her Sioux heritage  



                                                          

because he would not be able to comply with the quotas; and (5) McBride should not be  



                                                                                                                                   

the parent responsible for educating Vera about her Sioux heritage.  The superior court  



denied both of Red Elk's motions for reconsideration.  



                          Red Elk appeals.  The Fort Peck Court of Appeals has since affirmed the  

dismissal of his second petition.5  



             5            In March 2014 the Fort Peck Court of Appeals released its decision in Red     



Elk's second petition. In re A.V.B.M , FPCOA No. 616 (Mar. 6, 2014).  The court of                                             

appeals again dismissed the petition, holding that Fort Peck was an inconvenient forum.                                    

Id. at 1.       But it expressed concern that although the tribal court had twice decided to defer  

to Alaska, the Alaska Superior Court had refused to allow Vera to visit the reservation.     

Id. at 3.  



                                                                                 -6-                                                                         6987
  


----------------------- Page 7-----------------------

III.      STANDARD OF REVIEW  



                                                 

                   "The  superior  court  has  broad  discretion  in  its  determinations  of  child  



             6  

                                                                                     

custody."   We will overturn the superior court's conclusion on a custody issue "only if  



the entire record demonstrates that the controlling findings of fact are clearly erroneous  



                                                              7  

or that the trial court abused its discretion."   "A factual finding is clearly erroneous  



when a review of the record leaves the court with a definite and firm conviction that the  



                                                  8  

superior court has made a mistake."   An abuse of discretion exists where the superior  



                                                     

court  "considered  improper  factors  in  making  its  custody  determination,  failed  to  



consider statutorily mandated factors, or assigned disproportionate weight to particular  



                                           9                                                                          1 

factors while ignoring others."   We review visitation awards for abuse of discretion,  

including the allocation of visitation expenses.11  



         6        Limeres v. Limeres , 320 P.3d 291, 295 (Alaska 2014).  



         7         Chesser-Witmer v. Chesser,   117 P.3d 711,   715 (Alaska   2005) (quoting  



Hamilton v. Hamilton , 42 P.3d 1107, 1111 (Alaska 2002)) (internal quotation mark  

omitted).  



         8        Fardig v. Fardig , 56 P.3d 9, 11 (Alaska 2002) (internal quotation marks  



omitted).  



         9         Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998).  



         10        Skinner v. Hagberg,  183 P.3d 486, 489 (Alaska 2008) (citing Lone Wolf v.  



Lone Wolf , 741 P.2d 1187, 1190 (Alaska 1987)).  



         11        C.R.B. v. C.C., 959 P.2d 375, 384 (Alaska 1998) (setting standard as a  



matter  of  first  impression),  overruled   on   other  grounds  by  Evans  v.  McTaggart,  

88 P.3d 1078, 1085 (Alaska 2004); see  also Ronny M. v. Nanette H.,  303 P.3d 392, 400  

(Alaska 2013).  



                                                          -7-                                                    6987
  


----------------------- Page 8-----------------------

                                                                                                            

                    We also review the superior court's decision whether  to  grant leave to  



                                                            12  

amend pleadings for abuse of discretion.                        



IV.	      DISCUSSION  



                    On appeal Red Elk challenges:  (1) the superior court's decision not to  



allow him to amend his pleadings; (2) the court's decision on legal custody, including  



its  order  that  McBride  educate  Vera  about  her  Sioux  heritage;  and  (3)  the  court's  



                                                      

visitation schedule, which he argues is prohibitively expensive and a penalty against him  



for filing in the Fort Peck Tribal Court.  



                                                                                                  

          A.	       The Superior Court Did Not Abuse Its Discretion When It Denied Red  

                    Elk's Motion To Amend His Pleadings.  



                                                                                                    

                    Alaska Civil Rule 15(a) provides that if trial has been set a party may only  



                                                                                                    

amend a pleading "by leave of court or by written consent of the adverse party," but  



                                                                                        

"leave shall be freely given when justice so requires."  "If a party would be prejudiced  



by a proposed amendment, the court must apply a balancing test to decide whether the  



                                                                               

amendment should be granted, weighing the degree of prejudice to the opposing party  

against the hardship to the movant if the amendment is denied."13  



                                                           

                    Red Elk moved to amend the pleadings in June 2012, more than one year  



                                                                  

after he filed his answer.  During this time, Red Elk was represented by three different  



private attorneys.  The case had already progressed through many filings.  Trial was  



                                                                                                             

scheduled to commence in July, and the parties had already filed their trial briefs.  Under  



                                                                                                                    

these circumstances, McBride would have been prejudiced by a grant of leave to amend  



                                               

so late in the proceedings.  Red Elk, in comparison, did not experience hardship because  



                                                                                                                

the arguments he mainly advanced were made previously in his motion to defer to the  



          12	        Miller v. Safeway, Inc. , 102 P.3d 282, 288 (Alaska 2004) (citing                             Bauman  



v. Day , 942 P.2d 1130, 1132 (Alaska 1997)).  



          13	       Shooshanian v. Wagner, 672 P.2d 455, 458 (Alaska 1983).  



                                                              -8-                                                           6987  


----------------------- Page 9-----------------------

Fort Peck Tribal Court.14  The superior court did not abuse its discretion by denying Red  

                                                                                                                      



Elk's motion to amend his pleadings.  



           B.	        The Superior Court Did Not Abuse Its Discretion When It Awarded  

                      Sole Legal Custody To McBride.  

                      Although there is a preference for joint legal custody,15 it may  only be  

                                                                                                                                   



                                                                                  16  

awarded  if  it  is  in  the  best  interest  of  the  child.                           And  "joint  legal  custody  is  only  



                                       

appropriate  when  the  parents  can  cooperate  and  communicate  in  the  child's  best  



               17  

interest."            The  parent  with   legal  custody  is  responsible  for  making  all  decisions  

regarding "the [child's] education, non-emergency health care, morals, and religion."18  



                      Red Elk argues that the superior court made erroneous factual findings and  



improperly considered the age difference between him and McBride when awarding  



legal  custody.    Red  Elk  also  argues  that  the  court  abused  its  discretion  in  ordering  



McBride to begin educating Vera about her Sioux heritage.  



                      The        superior         court       found         that      "[c]ooperation              and       meaningful  



                                                                                

communication between Ms. McBride and Mr. Red Elk [are] not possible at this time"  



                                                                      

because communication was "strained by age and outlook" and "[n]either party is likely  



           14         Red Elk did not specifically lay out all of the amendments he wished to   



make, but the gist of his motion was directed at lack of subject matter jurisdiction and                             

improper venue, both of which Red Elk raised in his July 2011 motion to defer.  



           15	        Farrell v. Farrell , 819 P.2d 896, 898 n.1 (Alaska 1991).  



           16         AS 25.20.060(c).  



           17  

                                    

                      Jaymot  v.  Skillings-Donat,  216  P.3d  534,  540  (Alaska  2009)  (quoting  

Farrell , 819 P.2d at 899) (internal quotation marks omitted).  



           18  

                                                                                       

                      Ronny  M.  v.  Nanette  H.,  303  P.3d  392,  404  (Alaska  2013)  (citing  

Elton H. v. Naomi R., 119 P.3d 969, 975 (Alaska 2005)).  



                                                                     -9-	                                                              6987
  


----------------------- Page 10-----------------------

to change."  These findings are well supported in the record.19  In making these findings,  



                                                                

the court was merely commenting on the tension that the parties' differences in age and  



                                                                                                       

outlook caused; the court did not view age as a factor in and of itself.  The parties'  



                                  

disagreements about such things as birthing and child rearing are exactly the kinds of  



disputes  that  parents  sharing  legal  custody  must  effectively  consider  together.    The  



                                                           

superior court did not clearly err in its findings or abuse its discretion by considering the  



fact that the parties' outlooks on life were very different.  



                                                                                   

                    Red Elk also argues that it was an abuse of discretion to order McBride to  



                                     

educate Vera about her Sioux heritage despite McBride not being Sioux.  But a person  



                                                                                                              

is not disqualified from raising an Indian child merely by not being a member of the  



                   20  

                                                               

child's tribe.          The effect of the court's order is to ensure that Vera will be exposed to  



                                              

her Sioux culture as much as possible even while she is in McBride's primary physical  



                                                                                        

custody.  The court's order also enables both parents to be invested in Vera's cultural  



                                                                                                                  

education, which is surely in Vera's best interest.  The court did not abuse its discretion  



when it ordered that Vera would receive cultural education from McBride.  



          C.        The Superior Court's Visitation Schedule Must Be Remanded.  



                                                                      

                    Red Elk argues that the superior court's visitation schedule is prohibitively  



                                                                                                                

expensive  and  that the  court penalized  him  for  filing  in  the  Fort Peck  Tribal  Court.  



Because the superior court did not make adequate findings or consider relevant evidence  



          19        There  was   extensive  testimony  at  the  hearing  regarding  Red  Elk's  



controlling tendencies and his disapproval of McBride's childbirth and child rearing  

ideas.  



          20  

                                                                                                

                    See  In  re  Adoption  of  Sara  J.,  123  P.3d  1017,  1032-33  (Alaska  2005)  

                                                                                      

("[T]his does not mean that [the non-Native parent] will be unable to meet the children's  

cultural needs, nor does it disqualify her altogether from adopting the children.").  



                                                               -10-                                                         6987
  


----------------------- Page 11-----------------------

in  making  its  orders  regarding  visitation  expenses  and  its  visitation  schedule,  those  



portions of the court's orders must be remanded.  



                    1.       Visitation expenses  



                                                                                                      

                   Alaska Civil Rule 90.3(g) provides:  "After determining an award of child  



support under this rule, the court shall allocate reasonable travel expenses which are  



                                                                                

necessary to exercise visitation between the parties as may be just and proper for them  



                                                                                                                           

to contribute."  We have held that when "adequate explanation regarding visitation . . .  



                                                                                                     

does  not  appear  in  the  record,  we  .  .  .  remand  to  the  superior  court  for  further  

explanation."21  



                    The superior court ordered that "Mr. Red Elk will be responsible for the  



                                                                              

cost of transportation, including the cost of an escort until both parents agree Vera may  



                                                                                                               

fly unaccompanied or until she reaches age 12."  But the superior court did not explain  



                                                                                               22  

                                                                                                   It did not consider  

why Red Elk should bear the full burden of the visitation costs. 



Rule 90.3(g) or conduct any analysis regarding the parties' finances in the context of  



                                                                                          

allocating visitation expenses.  The court made no findings on affordability and received  



                                        

no evidence regarding the actual costs associated with visitation.  Allocating all of the  

                                                                                                                     23   On  

visitation expenses to one parent without explanation is an abuse of discretion. 



remand, the superior court must consider what division of visitation expenses would be  



          21       Jack C. v. Tally C. , 284 P.3d 13, 21-22 (Alaska 2012) (remanding when   



division of visitation time was not explained);  see also Meidinger v. Meidinger, Mem.  

Op. & J. No. 508, 1990 WL 10515483, at *3 (Alaska June 20, 1990) (holding that  

although a trial court has discretion, "where a party is awarded more than requested and  

                                                                                                    

more than the findings of fact support, the award, to pass appellate review, must be  

explained").  



          22       See Ronny M., 303 P.3d at 407 (holding that it was an abuse of discretion  



to allocate all of the visitation expenses to one parent without any further explanation).  

                                                           



          23       See id.  



                                                            -11-                                                       6987
  


----------------------- Page 12-----------------------

"just and proper."24  It should also consider whether it is just and proper to allocate some  

                                                                               

or all of Vera's Alaska Permanent Fund Dividends towards visitation costs.25  



                    2.       Visitation schedule  



                    The  superior  court's  visitation  order  allows  Red  Elk  increasingly  long  



visitation  periods  as  Vera  grows  older,  provided  that  Red  Elk  fulfills  the  visitation  



                                                                                  

allotted for each level before moving to the next.  The order also restricts visitation to  



                                                                                       

Alaska until Vera turns eight, at which point she can visit Red Elk on the reservation.  



Red Elk contends that the superior court penalized him for filing emergency custody  



proceedings in the Fort Peck Tribal Court by restricting visitation to Alaska and by  



                                                                 

creating  a  tiered  visitation  system  that  he  could  not  financially  complete  because  it  



                                                                                                             

required him to continually fly to Alaska and spend long periods of time with Vera to  



                                                                                       

satisfy the court's tiered standard.  Although it is not clear from the record, parts of the  



                                                                 

superior court's custody order suggest that it weighed Red Elk's allegations in the Fort  



Peck Tribal Court against him in deciding this visitation issue.  If it did so, then the  



                                                                                                           

superior court abused its discretion by failing to make adequate findings to substantiate  



                        26  

                            We have previously addressed this issue in the context of unproven  

such a decision.                                                                                              



allegations of child abuse made by one parent against the other in court proceedings.  



          24        Alaska R. Civ. P. 90.3(g).  



          25        See Ronny M., 303 P.3d at 407-08.  



          26        Because we remand the visitation order due to the superior court's failure   



to adequately explore whether Red Elk's allegations were made in good faith, we need  

not decide whether it gave weight to Red Elk's choice of forum and whether it was  

correct to do so.  



                                                             -12-                                                       6987
  


----------------------- Page 13-----------------------

                    In Stephanie W. v. Maxwell V., two parties disputed custody of their minor  

                                                                                     

son.27  During the proceedings the mother alleged that the father had sexually abused the  

                                                                                                



son,  but  the  superior  court  concluded  that  these  allegations  were  not  proven  by  a  

        

preponderance of the evidence.28   In its discussion of the "willingness of each parent to  

                                                   

facilitate the child's relationship with the other parent"29  factor, the superior court noted  

                                                                                                



that the mother had made unfounded allegations of sexual abuse and was likely to be  

                                                                                                           



                                                                                                        30  

unwilling  to  foster  a  relationship  between  the  child  and  the  father.                                 We  reversed,  

                                                                   



holding that so long as the mother's allegations were made in good faith, the superior  



court  should  not  have  weighed  them  against  the  mother  when  making  its  custody  

                                                                                                    

                      31  On remand, the mother made additional allegations against the father  

determination.                                                                                                       

to the superior court.32   The court found that the allegations had "almost no support" and  

                                                                                         



weighed  them  against  the  mother  in  its  discussion  of  the  "willingness  to  foster  a  

relationship" factor.33  On appeal we held that the superior court properly considered the  

                                                                                                



allegations in its discussion of the "willingness" factor because the allegations did not  



                                     34  

have a good-faith basis.                 We explained that in circumstances like these the superior  

                             



          27        274 P.3d 1185, 1187-89 (Alaska 2012) (Stephanie W. I). 
 



          28        Id. at 1188-90.
  



          29        AS 25.24.150(c)(6).
  



          30        Stephanie W. I, 274 P.3d at 1190-92.
  



          31        Id.
  



          32        Stephanie   W.   v.   Maxwell   V.,   319   P.3d   219,   229   (Alaska   2014)  



(Stephanie W. II).  



          33        Id.  



          34        Id.  ("[I]t  is  common  sense  that  in  a  custody   proceeding,  good-faith  



                                                                                                              (continued...)  



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court must balance "the desire of the court to encourage good-faith, objectively credible  

                                                                                   



reports of parental behavior relevant to the custody dispute" with "the need to guard  



against  false  reports  and  to  consider  a  parent's  actual  unwillingness  to  foster  a  

relationship with the other parent."35  



                    In another case, James R. v. Kylie R. , the superior court weighed one party's  

                                                                                                    



allegations against the other as a negative factor in its determination of the "willingness"  

                             

factor, which was the dispositive factor in the court's custody decision.36   On appeal we  

                                                                                                            



affirmed the court's custody decision, holding that the superior court did not clearly err  

                                                                                                       



in  finding  that  the  father  was  less  likely  than  the  mother  to  facilitate  a  relationship  

                                                      



between the daughter and the other parent, and did not abuse its discretion in its custody  

                                                                                          

         37  We reaffirmed our holdings from Stephanie W. I and II and noted that to have  

order.                                                                                                                



a good-faith basis, the allegations must be based on supporting evidence, either from the  

                                                               

superior court's "objective credibility determination" or other "extrinsic evidence."38  We  



reiterated that "some unsupported allegations fall outside the normal course of litigation  

                                                                    



                                                                                                  39  

and may speak to a parent's unwillingness to foster a relationship."                                  In such cases "the  



          34(...continued)  



allegations by one parent against the other parent regarding behavior relevant to the  

custody decision and the child's best interests should not be held against the reporting  

                                       

parent . . . where the allegations are based on supporting evidence.").  



          35        Id. at 230.  



          36        320 P.3d 273, 275-79 (Alaska 2014).  



          37        Id. at 281-83.  



          38        Id. at 283 (quoting Stephanie W. II, 319 P.3d at 230).  



          39        Id.  



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----------------------- Page 15-----------------------

court may consider the parent's litigation conduct" in the context of the willingness of                        

both parents to foster a relationship with the other.40  



                    Although custody rather than visitation was at issue in these cases, they are  



                                         

relevant to our analysis in this appeal.  Red Elk made two separate sets of allegations to  



                                                                                                           

the tribal court.  In his first petition to the tribal court he alleged that:  (1) McBride lived  



                                                                                                                     

in a remote place; (2) she was threatening suicide and had a mental disorder; and (3) she  



"refused to feed the child for three . . . days after birth."  In his second petition to the  



                                                                                                   

tribal court Red Elk alleged that:  (1) Vera had not been given her immunizations; (2) she  



                                                                  

had an unexplained scar on her forehead; and (3) she was wearing shoes that were too  



                                                                                                   

small.      But  no  court  has  taken  evidence  and  evaluated  these  allegations,  including  



whether Red Elk made them in good faith.  The tribal trial court, in its well-reasoned  



                                                                                           

decisions, did not proceed beyond jurisdiction and venue.  And the superior court made  



                                               

only conclusory findings that the claims were "false or exaggerated," but these findings  



were not substantiated by evidence in the record.  



                     If  Red  Elk  made  these  allegations  in  good  faith  and  on  the  basis  of  



supporting evidence, then it was an abuse of discretion for the superior court to weigh  



                                                                          

Red Elk's litigation conduct against him and to make a visitation decision on this basis.  



As we said in the Stephanie W. cases and in James R. , a court cannot penalize a parent  



                                                                               

for his use of process without giving the parent the opportunity to establish whether the  



                                                                                                         

allegations were made in good faith and without the court making factual findings to  



                                                   

support its decision.  We reverse the superior court's visitation order and remand for the  



          40        Id.  



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----------------------- Page 16-----------------------

                                                                        

court to make the required findings, which may involve taking additional evidence if  

there are contested issues of fact.41  



V.        CONCLUSION  



                   We AFFIRM the superior court's order denying Red Elk's motion to amend  



      

the  pleadings  and  its  order  on  legal  custody,  but  we  REVERSE  and  REMAND  its  



                                                                                              

visitation schedule and allocation of visitation costs for further proceedings consistent  



with this opinion.  We do not retain jurisdiction.  



          41       Red Elk also argues that the superior court imposed the tiered visitation  



plan as "a penalty against [him]."  The superior court's imposition of a tiered visitation  

plan is not itself an abuse of discretion.  Alaska courts have issued such visitation orders  

in the past, see Trombley v. Trombley, Mem. Op. & J. No. 1116, 2002 WL 31682366,  

                                                                   

at *1 (Alaska Nov. 27, 2002) (ordering tiered - also called stair-step - visitation), and  

                                                                                                          

we agree with the superior court that "the gradual increase in overnight visits allows  

[Vera] to develop the appropriate level of comfort."  Nonetheless, the tiered visitation  

schedule as it was ordered is inseparable from the superior court's overall visitation  

order, which is being remanded for further proceedings.  



                   Finally, Red Elk argues that the superior court abused its discretion when  

                                                                                         

it  held  that  he  must  provide  "adequate  assurances"  for  the  court  to  order  Vera's  

    

attendance at a naming ceremony on the reservation.  We likewise decline to reach this  

                                   

issue because the superior court's "adequate assurances" ruling is entangled with its  

decision on visitation.  It seems clear that the "assurances" the court was looking for  

were that Red Elk would not file unsupported or unfounded custody claims in the tribal  

                                           

court or otherwise keep Vera on the reservation and not return her to McBride.  But as  

                                                                       

we have explained, the superior court must first find that Red Elk's prior tribal court  

filings and allegations were made without a good-faith basis or that there is a reasonable  

                                                                                        

risk that Red Elk would otherwise keep Vera on the reservation and not return her to  

McBride.  If there was no bad faith by Red Elk in his tribal court filings and there is no  

reasonable risk that Red Elk will not return Vera to McBride, then there would be no  

                  

basis - in the absence of other evidence - for the superior court to demand assurances.  

                                                                                                  

Thus the superior court will need to reconsider each of these related orders on remand,  

                                                                                          

whether it elects to make additional findings on Red Elk's conduct or whether it elects  

                                      

to forgo relying on Red Elk's conduct as a factor in its visitation orders.  



                                                            -16-                                                          6987  

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