Justin Eschbacher and Gary Eschbacher, Law Offices of G.R. Eschbacher, Anchorage, for Appellant.
Robert C. Erwin, Robert C. Erwin, LLC, Anchorage, for Appellee.
Before: CARPENETI, Chief Justice, FABE, WINFREE, and CHRISTEN, Justices.
Following a five-day custody trial between unmarried parents regarding their young son, the trial court found that the father has a history of domestic violence. It nonetheless
awarded shared physical custody and temporary joint legal custody, deferring final determination of legal custody for one year. When issuing its oral findings and conclusions, the trial court also granted the father's request for a mutual no contact order.
The mother appealed the trial court's awards of temporary joint legal custody and shared physical custody. She argued that a court may not award any type of custody to a parent who has a history of domestic violence unless the statutory presumption against custody is overcome, and that the court failed to find the father had overcome that presumption. She also appealed the trial court's deferral of final legal custody, its award of unsupervised visitation to the father, and the mutual no contact order.
After oral argument, we issued an order: (1) vacating the trial court's order awarding shared physical custody and temporary joint legal custody to the father; (2) vacating the shared physical custody schedule ordered by the trial court; (3) remanding limited jurisdiction to the trial court to establish a reasonable unsupervised visitation schedule for the father; and (4) vacating the mutual no contact order as it applied to the mother contacting the father. We now explain the basis for our decision.
II. FACTS AND PROCEEDINGS
Jhyshain Wee and Charles Eggener's son was born in September 2004. The two have never married, but began cohabiting when Wee became pregnant. Within a few months of their son's birth their relationship became strained and plagued with abuse accusations.
Wee reported that the relationship deteriorated due to verbal and physical abuse Eggener directed towards her. In July 2006 one such incident led to a long-term protective order against Eggener. Wee claimed she sought that protective order after Eggener grabbed her, causing a large bruise on her upper arm. Wee explained Eggener grabbed her when she attempted to leave the house during one of his " rage outburst[s]." Two weeks after obtaining the protective order, Wee modified it to allow Eggener contact with their son. And two months after obtaining the protective order, Wee " rescinded" or asked for a dismissal of the proceedings.
Wee also detailed a January 2007 incident when Eggener's escalating anger frightened her, and out of concern for her safety and that of their son, she attempted to dial 9-1-1. Wee claimed Eggener disconnected the call, pushed her onto the bed, and restrained her movement. Eggener confirmed he took the phone out of Wee's hand and hung it up. But Eggener claimed he had been unaware Wee actually had dialed 9-1-1, because she often picked up the phone and threatened to call for help without dialing any number.
Wee testified that Eggener often physically restrained her, as during the January 2007 incident or when she would threaten to leave the house with their son or call for help after tiring of Eggener's shouting. Wee claimed that while restraining her, Eggener would shout at her for periods of five to fifteen minutes, sometimes when their son was watching. She claimed this sort of incident happened about three or four times a month.
Eggener admitted that he and Wee argued when their son was young, but he blamed the arguments on his desire to increase Wee's involvement in their son's life and in household chores. Eggener testified that during these arguments Wee would threaten to take their son and leave the country, to go to a shelter, or to call the police and claim Eggener physically abused her. Eggener estimated that Wee ...