Articles Posted in Family Law

by
A wife with serious medical conditions filed for divorce, but during trial, the parties agreed to a legal separation to ensure the wife’s continued access to her husband’s employer-sponsored health insurance. The separation agreement’s primary focus was delaying the divorce for 4 years, until the wife reached age 62 and became eligible for 36 months of post-divorce continuing health insurance coverage through the husband’s employer-sponsored health insurance. The superior court divided the marital estate and ordered the husband to pay spousal support for 3 years and to pay for the wife’s health insurance coverage after the expected later divorce. The wife appealed, arguing the court erred by failing to value the husband’s post-retirement medical benefits, declining to consider her agreement to legally separate as a factor in her favor when dividing the marital estate, wrongfully conflating spousal support with its property award, and unfairly allocating the overall property division. After review, the Alaska Supreme Court reversed the court’s ruling that it did not need to value the husband’s retirement health benefits and remanded for its valuation and a renewed equitable property distribution. View "Wilkins v. Wilkins" on Justia Law

Posted in: Family Law

by
Yvonne Gambini appeals the superior court’s property division order for her divorce from Perry Hamilton. Gambini argues that she is entitled to more than half of the marital estate and that the superior court erroneously treated a loan she made to Hamilton prior to their marriage as a marital obligation. She also contends that the court incorrectly valued Hamilton’s retirement account and that several of its procedural decisions unfairly prejudiced her or violated her rights. The Alaska Supreme Court determined none of Gambini’s claims amounted to reversible error. View "Gambini v. Hamilton" on Justia Law

Posted in: Family Law

by
The Office of Children’s Services (OCS) took custody of a three-month-old child after he was found outside alone on a cold winter day. The child’s mother had an alcohol abuse problem and had failed repeated attempts at treatment. The father also had problems with alcohol abuse, never completing treatment, and spending much of the relevant time period in jail or on probation. The mother and father had a second child while OCS’s case was pending, and the agency took custody of that child as too. OCS then petitioned to terminate parental rights to both children. The superior court granted OCS’s petition following trial. The parents appealed: the father argued the superior court erred when it found OCS’s proposed expert witness, an experienced attorney and guardian ad litem, qualified to testify about whether the children would likely suffer emotional or physical harm if returned to their parents’ care. The Alaska Supreme Court agreed the record did not support a conclusion that the witness met the heightened standard for expert testimony under the Indian Child Welfare Act (ICWA); for that reason the Court reversed the termination order and remanded the case for further proceedings. View "Eva H. v. Alaska, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

by
The superior court terminated a mother’s and father’s parental rights, finding their two children were in need of aid based on abandonment, incarceration, risk of domestic violence, and substance abuse. The court also determined that the Office of Children’s Services (OCS) had satisfied its duty to make reasonable efforts to reunify the parents and children. The mother and father separately appealed the court’s reasonable-efforts determinations; the mother also appealed the court’s findings that the children were in need of aid based on abandonment and domestic violence. Consolidating the cases, the Alaska Supreme Court found no reversible error, and affirmed the superior court’s decision to terminate the mother’s and father’s parental rights. View "Violet C. v. State, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

by
A mother wanted to relocate with her daughter from Alaska to New York. She sought primary custody, alleging that the father’s drinking and busy schedule made him an improper guardian for their two-year-old. The superior court concluded that it was in the child’s best interests to remain in Alaska in her father’s custody. The mother appealed, arguing the superior court erred in its analysis. The Alaska Supreme Court determined the superior court did not properly consider the effect of separating the child from her mother, vacated the custody order and remanded for further analysis. However, the Court affirmed the superior court's decision not to order protective measures to ensure the father's sobriety while caring for the child. View "Saffir v. Wheeler" on Justia Law

Posted in: Family Law

by
Bill and Clara are the parents of Noah and Olwen, ages 12 and 5 at the time of the termination trial. Noah and Olwen were Indian children within the meaning of the Indian Child Welfare Act (ICWA) based on their affiliation with the Aleut Community of St. Paul Island (theTribe). Bill and Clara had a lengthy history of alcohol abuse and domestic violence. Noah and Olwen suffered primarily through neglect and mental injury from exposure to their parents’ conduct. While Bill’s and Clara’s violence was typically directed at each other or other family members, there were reports of alleged physical abuse of Noah. The superior court terminated the parents' rights to their children. The parents appealed, arguing the superior court erred in finding, by clear and convincing evidence, that OCS made active efforts to prevent the breakup of the Indian family. Because the Alaska Supreme Court determined there was insufficient evidence to support an active efforts finding under a clear and convincing evidence standard, it reversed the superior court’s active efforts finding, vacated the termination order, and remanded for further proceedings. View "Bill S. v. State, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

by
An Alaskan superior court denied a father’s motion to modify custody because it did not believe it had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify an Oregon custody order. The father appealed to the Alaska Supreme Court, arguing arguing that the superior court erred in failing to consider the controlling statute that governs the court’s jurisdiction to modify an out-of-state order. The father also appeals an order imposing sanctions, including costs and attorney’s fees. The Supreme Court agreed that the controlling statute, AS 25.30.320, allowed the superior court to modify an out-of-state custody order if it “determines that neither the child, nor a parent, nor a person acting as a parent presently resides in the other state.” It did not appear from the record that the superior court considered this subsection of the statute. The Court therefore vacated the superior court’s order denying the motion to modify for lack of jurisdiction. And because the sanctions order was premised on the court’s jurisdictional ruling, it too was vacated. View "Fox v. Grace" on Justia Law

by
A divorced mother and father shared joint legal custody of their son. The mother moved for a modification of legal custody, alleging that the father was failing to cooperate on important issues such as counseling, the selection of a middle school, and medical care; she also moved for a declaration that the parents did not have to mediate their custody disputes before filing a modification motion, as required by their custody agreement. The superior court denied the request for declaratory relief and denied the motion for modification of custody without a hearing. After review, the Alaska Supreme Court agreed with the superior court that the motion for declaratory relief was properly denied, as neither party was seeking to enforce the mediation provision and it presented no actual controversy. However, the Court concluded the mother’s allegations in her motion to modify legal custody made a prima facie showing that the parents’ lack of cooperation was serious enough to negatively affect the child’s well-being, and that the mother was therefore entitled to an evidentiary hearing on modification. The trial court’s order was therefore reversed and the matter remanded for further proceedings. View "Edith A. v. Jonah A." on Justia Law

by
A mother appealed an order modifying custody, which awarded sole legal and physical custody of her three children to the father and limited her to supervised visitation pending the children’s full engagement in therapy. The mother argued the father failed to demonstrate a change in circumstances that would justify a modification of custody and that the resulting modification was not in the children’s best interests. After review of the trial court record, the Alaska Supreme Court concluded the superior court did not abuse its discretion when it determined that the mother’s interference with the children’s therapy amounted to a change in circumstances and that the children’s best interests were served by an award of sole legal and physical custody to the father while therapy took hold. View "Georgette S.B. v. Scott B." on Justia Law

by
Linda and David Fletcher were married in 1990. They had three children, one of whom was a minor at the time of their 2015 divorce trial. Linda twice petitioned for domestic violence protective orders against David during the marriage, first in 2001 and again in 2010. David moved out of the marital home and into his truck around the time Linda filed the second petition in February 2010. Although David came to the house to pick up his mail, see the children, and do repair and improvement projects, he did not live or sleep in the house again. During the marriage Linda worked in the legal administrative field, and David worked as a union electrical contractor and an electrician. Linda handled the parties’ finances. They ceased maintaining a joint bank account a couple of years into the marriage, and in 2001 separately filed bankruptcy declarations “due to debts arising from David’s business.” Linda paid the family’s monthly expenses and invoiced David each month for his share of the costs to feed, clothe, and house the family. She also paid and invoiced David for his expenses, including car insurance. Linda testified that in 2010, after David moved out of the marital home, they agreed he would pay $1,200 per month for his share of the family expenses. David made these payments sporadically and in installments until 2012, when he instead “made multiple direct and indirect payments to Linda and/or to/for the children.” The parties agreed the home was marital property. David was diagnosed with type II diabetes in 1992; he suffered two heart attacks and a stroke. He had surgery related to the first heart attack. David took between 17 and 20 medications daily. Until 2007 the family had health insurance through Linda’s employer. Linda then switched the children’s healthcare and dropped David from her employer’s insurance plan. David had access to health insurance through his union, but he could not rely on coverage because he was not always able to maintain the required minimum number of hours worked each week. According to one of David’s attorneys, David would qualify for Medicare in January 2017, two years after trial. The primary issues in this divorce case were whether the superior court abused its discretion by determining the parties’ separation date and erred by dividing the marital estate 50/50. The Alaska Supreme Court answered “no” to the former and “yes” to the latter. The case was remanded to the trial court for further proceedings. View "Fletcher v. Fletcher" on Justia Law

Posted in: Family Law