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Andrea C. v. Marcus K.

Supreme Court of Alaska

August 7, 2015

ANDREA C., Appellant,
v.
MARCUS K., Appellee.

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Superior Court No. 3AN-04-08093 CI Patrick J. McKay, Judge.

Appearances: Andrea C., pro se, Wolfeboro, New Hampshire, Appellant.

Marcus K., pro se, Anchorage, Appellee.

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

OPINION

STOWERS, Justice.

I. INTRODUCTION

Andrea C.[1] appeals the superior court's decision to award Marcus K. primary physical and sole legal custody of their two children. Andrea argues the superior court made inadequate findings regarding Marcus's history of domestic violence, and she also challenges the superior court's application of the best interest factors. We affirm the superior court's custody decision for the reasons discussed below.

II. FACTS AND PROCEEDINGS

A. Earlier Custody Proceedings[2]

Andrea C. and Marcus K. are the divorced parents of two children, Daniel and Bryson.[3] Since their divorce, Andrea and Marcus have engaged in a contentious custody battle. Although Marcus originally received only supervised visitation with the children because he had a history of domestic violence, [4] Marcus enjoyed primary physical custody and shared legal custody immediately prior to the custody modification at issue in this appeal.

This significant shift in custody appears to have been the result of two factors. First, Marcus rebutted the domestic violence presumption, making it possible for the superior court to award him physical and legal custody. Second, the superior court had increasing concerns regarding Andrea's parenting. For example, in 2006 the court noted that both parents had "emotionally abused" the children, but that Marcus had made "great strides in his ability to deal with [the] confrontation and stress associated with divided parenting." The court described Andrea as "the primary person that continually subjects the children to emotional abuse" and believed she was unable to recognize her shortcomings as a parent. The court later characterized Andrea as "controlling" and "manipulative."

In a related 2007 proceeding, the superior court took evidence regarding an interaction between Andrea and Daniel, which the court described as "disturbing." A custody investigation ordered in a 2010 modification proceeding also raised concerns regarding Andrea's relationship with Daniel, noting, "[I]t is clear there is a serious problem between Mother and [Daniel]. [Daniel's] escalating behavior and verbal abuse towards Mother is a concern as well as Mother's sometimes inappropriate responses."

The superior court attempted to address these issues by ordering Andrea to complete a parenting class in 2006. And in 2007, in response to the "disturbing" interaction between Andrea and Daniel, the court ordered her to take an anger management class. Andrea failed to complete either requirement for several years and was eventually held in contempt. It appears Andrea may have completed the anger management course and started the parenting class in 2010.

B. The Current Custody Dispute

The proceedings leading up to this appeal began when Andrea filed a custody modification request because of her new husband's impending move to New Jersey. Andrea briefly mentioned domestic violence in her motion to modify, stating "[domestic violence] is being addressed in another motion. I would, however, like the court[] to consider these issues when making its decision."

The same day she moved to modify custody Andrea also filed a motion for an order to show cause. Among other allegations, Andrea noted that Marcus had a history of domestic violence and that Marcus's second ex-wife, Angelec, had recently obtained a domestic violence protective order against him, which Andrea attached to her motion. Superior Court Judge Patrick J. McKay denied the motion for an order to show cause but informed Andrea that she could raise these allegations at the custody modification trial.

The superior court also ordered that an earlier custody investigation be updated. The updated report stressed that the children continued to be placed in the middle of their parents' custody dispute and that the children needed consistency and stability above all to meet their needs. The report found Marcus was more capable and willing to meet the children's educational needs based on interviews with their teachers that indicated that Marcus was the more involved parent. The report also noted that both children preferred to stay in Anchorage so that they could "be near their friends and complete school with them."

The custody investigator concluded that the stability factor[5] favored Marcus because of his "support for the education of the children and for their team sports." And on domestic violence, the investigator noted, "[the Office of Children's Services] has been involved with this family on a historical basis but . . . nothing has been substantiated."[6] The investigator believed that "[t]he boys need to remain together" and underscored that they "need consistency" and "need to remain with their familiar teachers and friends." The report ultimately recommended that Marcus receive ...


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