Tuesday, May 2, 2006
Case Law Development: Domestic Violence and Friendly Parent Provisions in Child Custody Determinations
The Alaska Supreme Court holds that Alaska's statutory presumption against granting custody to a parent with a history of domestic violence should not have retroactive application and that a trial court did not abuse its discretion in placing a child in primary physical custody with father, despite evidence of prior domestic violence.
VanSickle v. McGraw, 2006 Alas. LEXIS 60 (April 28, 2006)
Opinion on the web (last visited April 30, 2006)
Mother lived in Michigan and Father in Alaska and the parents had shared custody of the child, with the child residing with each parent for about 3 months at a time. When the child was three years old, Mother filed an action in Michigan for primary custody. That action was dismissed for lack of jurisdiction and then Father filed an action in Alaska. The trial court placed primary physical custody with Father based on the statutory "friendly parent" provision and on the family and cultural ties of child in Alaska. The trial court found Mother's action in filing for primary custody in Michigan and in filing an unfounded police report against father indicated that she would be less likely to facilitate a relationship between her child and her ex-husband. The court also noted that the child's Tlingit heritage would be recognized more readily in Alaska than in Michigan and that child had extended family in Alaska but the only extended family in Michigan was of child's stepfather. Mother argued that the court should have considered Father's violence in an incident in which he drove a vehicle toward her while shouting obscenities. The court held that, because Mother failed to mention an incident of domestic violence in her trial brief, in her written closing argument at trial, or in her motion for reconsideration, Mother had not preserved the issue for appeal.