Articles Posted in Family 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

by
The superior court terminated a father’s parental rights to his son, finding that the child was in need of aid because of abandonment, neglect, and the father’s incarceration and that the Office of Children’s Services (OCS) had satisfied its statutory obligation to make reasonable efforts to reunify parent and child. The father appealed, arguing these findings were unsupported by the evidence. The Alaska Supreme Court agreed with the father: the record showed he initiated efforts to visit the child, who was already in OCS custody, as soon as he learned of his possible paternity; that during the father’s subsequent incarceration he had visitation as often as OCS was able to provide it; and that OCS never created a case plan to direct the father’s efforts toward reunification. The Supreme Court concluded it was clear error to find that the child was in need of aid and that OCS made reasonable efforts toward reunification, and reversed the termination decision. View "Duke S. v. Alaska, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

by
Two young siblings were removed from their biological parents’ home and placed with a foster family. The maternal biological grandparents remained involved in the children’s lives and sought to adopt them, as did the foster parents. The grandparents and foster parents entered into a formal settlement agreement, which was incorporated into the ultimate adoption decree. Under the agreement the grandparents waived their right to pursue adoption in exchange for several specific guarantees and assurances, including that the foster parents would comply with a visitation agreement and facilitate a relationship between the children and the grandparents. When the grandparents were later denied post-adoption visitation, they moved to enforce the agreement and then to vacate the adoption. The superior court vacated the adoption after finding that the foster parents made material misrepresentations throughout the pre-adoption process, including specific misrepresentations about their intent to comply with the visitation and relationship agreement. The superior court placed the children back in state custody to determine a suitable adoptive placement. The foster parents appealed, arguing that the grandparents’ sole remedy was enforcement of the visitation agreement. The Alaska Supreme Court found that an adoption could be vacated due to material misrepresentations, and because the adoptive parents did not challenge the court’s factual finding that they never intended to comply with the settlement agreement’s visitation and relationship provisions, the Supreme Court affirmed the superior court’s decision vacating the adoption. View "In Re Adoption of E.H. and J.H." on Justia Law

by
A divorcing couple disputed custody of their child and division of their marital property. The wife alleged for the first time during trial that the husband had engaged in a pattern of domestic violence. The court found her testimony credible, applied the statutory domestic violence presumption, and awarded her primary physical and sole legal custody of the child. The husband filed a motion to reopen the evidence regarding domestic violence and substance abuse more than a month after the court’s oral decision. The court denied his motion. The court divided the marital property 60/40 in favor of the wife, awarded all of the real property to the husband, and ordered him to make an equalization payment. The husband appealed the denial of his motion to reopen the evidence and the property division. Because the husband waived any argument that he should be allowed to present additional evidence and the court did not abuse its discretion in its property division, the Alaska Supreme Court affirmed the trial court’s judgment. View "Burns-Marshall v. Krogman" on Justia Law

by
The superior court appointed a child’s grandparents as his guardians after finding that the father’s parental rights of custody had been suspended by circumstances because it would be detrimental to the child’s welfare to remove the child from the grandparents’ care. The father appealed. After review, the Alaska Supreme Court concluded the term "suspended by circumstances" in AS 13.26.132 was properly focused on the parent's ability to accept the rights and responsibilities of parenthood rather than on the child's welfare. In this case, the superior court found the father was not an unfit parent and had not abandoned the child, the court erred in finding all of his parental rights of custody had been suspended by circumstances. The Supreme Court therefore vacated the guardianship order and remanded the case back to the superior court with instructions to dismiss the grandparents' guardianship petition. View "Michael W. v. Brown" on Justia Law

Posted in: Family Law

by
The superior court awarded one of the husband’s investment accounts to his wife in a divorce. Before transferring the account, the husband transferred shares of three mutual funds from that account to a separate investment account. The wife asked the court to order him to account for the missing shares. The court ordered the husband to pay the wife the value of the shares on the date of the transfer and he did so. The parties contested the value of the income earned by the improperly transferred shares. Following lengthy litigation of this issue, the superior court awarded the wife enhanced attorney’s fees. The wife appealed the valuation of the earned income of the shares; the husband cross-appealed the valuation of the earned income on the shares and the award of attorney’s fees. The Alaska Supreme Court found the superior court appropriately awarded the wife prejudgment interest instead of damages as well as enhanced attorney’s fees. View "Erwin v. Mendenhall" on Justia Law

Posted in: Family Law

by
A mother appealed the termination of her parental rights to her son, an Indian child. She argued the trial court violated the Indian Child Welfare Act (ICWA) by finding that the Office of Children’s Services (OCS) made active efforts and that her continued custody of her son was likely to result in serious emotional or physical damage to him. She also argued that the trial court’s latter finding was not supported by the testimony of a qualified expert as required by ICWA. After review, the Alaska Supreme Court affirmed the trial court’s order terminating her parental rights because its findings satisfied ICWA’s requirements. View "Demetria H. v. Alaska, Dept. of Health & Social Services, Office of Children's Services" on Justia Law

by
A mother appealed the termination of her parental rights to her son on findings of abandonment, mental injury, neglect and parental substance abuse. The mother challenged none of the superior court’s factual findings; rather, she alleged the court violated her due process rights during the termination trial by: (1) prejudging the case; (2) improperly assuming the role of a prosecutor while examining witnesses; and (3) relying on research and evidence outside the record to impeach witnesses and disregard testimony favorable to her. Asserting that the court’s actions deprived her of the right to an impartial decision-maker and amounted to structural error, she sought reversal and remand before a different judge. Although the Alaska Supreme Court agreed the court took inappropriate action with respect to witness testimony and other evidence regarding one issue at the trial, the Supreme Court concluded this did not amount to structural error and that it did not otherwise undercut the unrelated findings supporting the termination of the mother’s parental rights. View "Sarah A. v. Alaska, Dept. of Health & Social Services, Office of Children's Services" on Justia Law