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Faye H. v. James B.

Supreme Court of Alaska

April 17, 2015

FAYE H., Appellant,
v.
JAMES B., Appellee

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Kenai, Charles T. Huguelet, Judge. Superior Court No. 3KN-11-00356 CI.

Kenneth W. Cole, Law Offices of Kenneth W. Cole, Kenai, for Appellant.

Linn J. Plous, Kenai, for Appellee.

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

OPINION

BOLGER, Justice.

I. INTRODUCTION

Alaska Statute 25.24.150(g) creates a rebuttable presumption that a parent with a " history of perpetrating domestic violence" shall not be awarded sole or joint physical custody in a child custody case. A " history of perpetrating domestic violence" is found where a parent either causes serious physical injury during one incident of domestic violence or engages in more than one domestic violence incident.

Here the superior court awarded the parents joint physical custody of their daughter, finding that although the father had committed domestic violence, it was " not of a degree or frequency" to trigger the presumption. But the court's factual findings were ambiguous as to whether the father committed more than one act of domestic violence. We therefore remand for further findings on this issue.

II. FACTS AND PROCEEDINGS

Faye H. and James B.[1] began a long-distance relationship in late 2009 or early 2010, with Faye residing in Las Vegas, Nevada, and James in San Diego, California. The couple moved to Alaska together in May 2010 and were never married. They had one child together, Hannah, who was born in March 2011.

Page 877

The parties separated shortly after Hannah's birth. James, citing Faye's alleged substance abuse and seeking primary custody of Hannah, petitioned for a domestic violence protective order. The district court entered a temporary, 20-day order granting James physical custody of Hannah and allowing supervised visitation with Faye. Several days later Faye similarly petitioned for a protective order, alleging that James had been " violent and abusive." The district court scheduled a hearing on the requested order. A magistrate judge then modified the original 20-day order to allow Faye unsupervised visitation with Hannah, on the condition that Faye participate in random drug testing.

The magistrate judge also ordered that the parties' long-term protective order petitions be heard at the same time, and both parties appeared with counsel at the subsequent hearings. The magistrate judge granted Faye's motion for a long-term protective order, denied James's, and ordered an equal physical custody arrangement. The long-term protective order contained a finding that James committed or attempted to commit the crime of " assault or reckless endangerment" against Faye. The order also contained a no-contact provision under which James was not to " telephone, contact, or communicate in any way, directly or indirectly" with Faye except " through an attorney," " by email to discuss matters relating to [Hannah]," or " through a notebook that travels with [Hannah]." James was also prohibited from coming within 500 feet of Faye's residence and ordered to " stay away from, and not telephone or contact" her place of employment.

James filed a complaint seeking sole legal and primary physical custody of Hannah. The superior court described the custody case that followed as one of " extremely high conflict . . . with an unusually high number of motions, requests for expedited consideration, and emotional hearings," only some of which are relevant to this appeal.

While the case was pending, the State filed several criminal charges against James for violating the domestic violence protective order,[2] sexually abusing and assaulting his significant other's four-year-old son,[3] indecent viewing or photography,[4] and criminally misusing a computer.[5] None of these charges resulted in a conviction. But during the criminal proceedings, the superior court held an interim custody hearing and awarded interim legal and physical custody to Faye. The court also appointed a guardian ad litem. James's contact with Hannah was initially suspended, but the court later restored supervised visitation.

The superior court held a trial at which both parties were represented. In its post-trial findings and conclusions, the court determined that an equal physical custody arrangement was in Hannah's best interests and awarded sole legal custody to Faye. With respect to the issue of domestic violence, the court stated at the outset of its analysis:

Generally, the court must determine custody in accordance with the best interests of the child, and if the case involves certain kinds of domestic violence, the court must employ an additional rebuttable presumption when analyzing the custody and visitation decisions. The court finds that the domestic violence perpetrated by ...

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