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Elk v. McBride

Supreme Court of Alaska

March 13, 2015

KEITH RED ELK, Appellant,

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Homer, Charles T. Huguelet, Judge. Superior Court No. 3HO-11-00061 CI.

Phil N. Nash, Kenai, for Appellant.

Laura B. McBride, Pro se, Homer, Appellee.

Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.


Page 819

STOWERS, Justice.


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. 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.

Page 820


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 Services[1] 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 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.

Vera[2] was born in August 2010. Red Elk traveled to Homer in September 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 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 ...

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