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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Yelena R. v. George R. (5/23/2014) sp-6912

Yelena R. v. George R. (5/23/2014) sp-6912

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



YELENA R.,                                          )  

                                                    )        Supreme Court No.  S-15042  

                 Appellant,                         )  

                                                    )        Superior Court No. 3KO-11-00300 CI  

         v.                                         )  

                                                    )        O P I N I O N  

GEORGE R.,                                          )  

                                                    )        No. 6912 - May 23, 2014  

                 Appellee.                          )  

_______________________________ )  

                 Appeal from the Superior Court of the State of Alaska, Third


                 Judicial District, Kodiak, Steve W. Cole, Judge.  

                 Appearances:  Yelena  R.,  pro  se,  Taunton,  Massachusetts,

                 Appellant.  Elizabeth W. Fleming, Kodiak, for Appellee.  

                 Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and


                 Bolger, Justices.

                  STOWERS, Justice.


                 Yelena  R.  and  George  R.1  

                                                         were  involved  in  an  on-again,  off-again  

relationship for more than a decade and have two children together.  Yelena accused  


George  of  sexually  assaulting  her  in  May  2011  while  they  were  living  together  in  

         1       We  use  pseudonyms  throughout  this  opinion  to  protect  the  privacy  of  

family members.  

----------------------- Page 2-----------------------

Kodiak.  After the Kodiak magistrate found Yelena's testimony unpersuasive and denied   

her request for a long-term domestic violence protective order, Yelena took the children                          

to Massachusetts without notifying George. A Massachusetts court ordered the children  


to be returned to Kodiak and this custody case ensued.  After a custody trial, the superior     

court granted sole legal and primary physical custody of the children to George and  


ordered supervised visitation between Yelena and the children.  Yelena now appeals the  

custody order and visitation restrictions.  


                         This  appeal  requires  us  to  consider  whether  the  superior  court  had  


jurisdiction to make final custody decisions regarding the children, and, if it did, whether  

the  superior  court  properly:  (1)  declined  to  find  a  history  of  domestic  violence  by  

George; (2) awarded custody to George; and (3) required supervised visitation.  We  


conclude   that   the   superior   court   had   jurisdiction,   properly   declined   to   apply  


AS         25.24.150(g)'s                  domestic             violence             presumption,                adequately              considered  

AS 25.24.150(c)'s "best interest" factors, and made no clearly erroneous factual findings;  


thus it did not abuse its discretion by awarding custody of the children to George.  It was  


error for the superior court to require supervised visitation without making adequate  


 findings to support the visitation restrictions and by failing to establish a plan for Yelena  

to achieve unsupervised visitation.  It was also an abuse of discretion to delegate to  

George the authority to end the supervision requirement.  We affirm the superior court's  

award of custody to George, but remand for further proceedings on the issue of Yelena's  



            A.           Facts  

                         Yelena and George married in October 2000 after Yelena became pregnant.  

George and Yelena's son, Isaac, was born in January 2001.  George joined the Coast  

Guard in late 2000, and the family moved to California shortly after Isaac was born.  

                                                                            -2-                                                                      6912

----------------------- Page 3-----------------------


                      Yelena testified that about five months after they were married, a pattern  


                                                                                                        Yelena said that both of  

of reciprocal physical abuse began between her and George. 


them committed acts of domestic violence and were arrested early in their relationship.  


Yelena was arrested and charged with inflicting corporal injury on a spouse and battery  


                                                                               She entered a nolo contendere plea and  

on a spouse in September 2001 in California. 

was sentenced to ten days in jail and one year of probation.  

                      George filed for divorce in 2002, and the couple divorced in November  


2004 in California.  The California court ordered  shared legal custody of Isaac and  


granted primary physical custody to George, with regular visitation to Yelena.  The court  

also granted George's request to move with Isaac from California to North Carolina for  


work.  Despite their divorce, Yelena and George continued their relationship and lived  

together on and off between 2004 and 2011.  


                      Yelena became pregnant with their daughter Amy in 2005.  Yelena alleged  

that George pushed her down the stairs because he did not want her to have the baby.  


Amy was born in early 2006.  George was then stationed in Massachusetts, and George  

and Yelena moved back in together and lived with George's mother.  Yelena suggested  

that George's family abused Yelena and Isaac during this time.  


                      In July 2007 while they were living in Massachusetts, Yelena reported that  


after she found earrings in their bed and placed them in George's hand, he assaulted her  

by repeatedly punching her in the back while Amy lay in the bed next to her.  George  


told police that he and Yelena had been arguing for several days and that she dropped  

Amy on him while he was sleeping and then assaulted him by sitting on him, hitting him,  

           2          Most of the testimony that we reference in this opinion was given late in the                     

case, during an evidentiary hearing on interim custody in May 2012, or at the custody   

trial conducted over several days in June, August, and September 2012.  

           3          There are no factual details concerning these charges in the record.  

                                                                      -3-                                                                    6912  

----------------------- Page 4-----------------------

and swinging an object at him. George was arrested and charged with assaulting Yelena.  


Yelena went to Cape Cod Hospital in Hyannis later that day, where she reported being  


punched in the back. She was diagnosed as having a subcapsular hematoma on the left  


kidney.  Yelena voluntarily left the hospital against medical advice.  

                    Yelena moved back in with George three or four months after the alleged  

assault, around November 2007.                    On November 8 George was counseled in writing by  

his Coast Guard commanding officer to reconsider living with Yelena because of the  


multiple reported altercations between them.  George was also counseled that he should  


not be living with Yelena because she admitted to being "a habitual user of marijuana."  

                    In  April  2008  the  trial  court  in  Barnstable,  Massachusetts  entered  a  


stipulated order in which Yelena and George agreed to share legal and physical custody  

of the children.  In May 2008 a Barnstable district court judge dismissed the assault  

charges against George arising from the July 2007 incident.  


                    From early 2008 until 2010, Yelena and George did not live together but  


did spend significant time together.  During that time George took care of the children  


most weekends and evenings. George testified that Yelena would not spend her time off  


with  the  children,  suggesting  that  she  would  instead  "socialize"  and  often  had  a  



                    In June 2010, the Coast Guard transferred George to Kodiak.  Yelena said  

that their relationship and co-parenting were good in the period leading up to when  

George moved.  Yelena quit her job around October and in early December moved to  


Kodiak with the children to live with George. Yelena obtained employment as a victim's  

advocate at the Kodiak Women's Resource and Crisis Center.  


                    Isaac  developed  severe  dental  problems  sometime  before  the  move  to  

Kodiak.  George claimed that these problems were the result of Yelena's neglect, and  


that he immediately dealt with them when Isaac arrived in Kodiak.  George said that he  

                                                             -4-                                                        6912

----------------------- Page 5-----------------------


first learned about the dental issues shortly before Yelena moved to Kodiak, and that he  

told her Isaac should have been seen by a dentist before moving.  George explained that  


he immediately took Isaac to the dentist and a series of visits occurred before Isaac was  


referred  to  specialists  in  Anchorage.                     In  April  2011  pediatric  dentists  at  Joint  Base  

Elmendorf-Richardson  diagnosed  Isaac  as  having  a  "cystic  lesion  that  was  grossly  

disfiguring and causing dental and maxillofacial deformity."  The lesion was removed  

in June 2011.  The chief of pediatric dentistry stated that "prompt recognition . . . could  


have  significantly  lessened  the  facial  deformity  and  subsequent  need  for  future  

orthodontic treatment."  


                     Yelena testified that on the morning of May 25, 2011, George came home  


from work and began kissing her and making sexual advances.   She refused, stating  


"[t]his isn't worth it . . . I'm sleeping with someone else."  She further told George "no,"  


"stop," and "please don't," but he continued to sexually assault her.  The sexual assault  


continued for about five minutes and Isaac, then ten years old, came to the bedroom door  

after the incident and asked if she was "OK."  


                     Isaac,  who  was  11  at  the  time  of  his  testimony,  testified  that  he  had  

difficulty remembering specific events from around the time of the alleged sexual assault,  


but he did recall a specific instance where his father asked him if he wanted to call the  


police.  He heard his mother and father watching television in their room and then heard  

his mother yelling "stop, stop," and he said she sounded "furious."  He stated that he was  

scared because he thought someone else might have been in the room with his parents.  

           4         Most of the testimony about the alleged sexual assault was given at a Coast     

Guard hearing on court-martial charges against George. The superior court admitted the                                

hearing report in full as evidence.  No objection was made to the admission of this report,       

and neither party argues on appeal that the report should not have been considered by the   

superior court.  

                                                                  -5-                                                           6912

----------------------- Page 6-----------------------

When his mother came out of the room she asked him if he was "OK" and he asked her  

if she was "OK."  

                   Yelena reported the assault to her supervisor at work the next morning.  Her  


supervisor, Rebecca Shields, testified that Yelena did report the incident to her, though  

she was unable to recall exactly when.  Shields  stated that she counseled Yelena and  

advised her of her options.  

                   Yelena applied for an ex parte, short-term domestic violence restraining  


order on May 25, which the Kodiak magistrate granted.  After receiving the temporary  

restraining  order,  Yelena  did  not  immediately  return  to  George's  home,  but  instead  

stayed in a hotel, sometimes accompanied by Charles Wimberly, whom she had been  


dating.  As a result of the temporary restraining order, George was required to vacate his  


home, which he did.  George later stated that during the time the restraining order was  

in place Yelena was partying and allowing people to stay in his home.  

                   Wimberly testified that Yelena told him about the temporary restraining  


order obtained against George and that she was scared of George, but he stated that she  


never told him about the sexual abuse.  Paula Bracher, a friend of Yelena's, testified that  


Yelena told her about the alleged assault several weeks after the incident, but Bracher  

never observed any abuse or apparent signs of abuse between Yelena and George.  


                   One of George's co-workers and friends, Robert Greenidge, stated that he  


observed George to be a great father, but had seen Yelena out at bars in town regularly.  


He  stated  that  in  May  2011  he  once  observed  Yelena  "blow  her  top"  and  "smack"  


George while a group of people were watching a sporting event.  Greenidge also testified  

that George said Yelena had sexually assaulted him in the past.  

                   In an interview with a Coast Guard investigator, George denied Yelena's  


allegation that he sexually assaulted her.  He stated that Yelena assaulted him in the 2007  


incident and that his acts in self-defense may have caused some injuries, but he asserted  

                                                             -6-                                                       6912

----------------------- Page 7-----------------------

that her medical reports were not accurate. George also told the investigator that on three  


occasions Yelena woke him up by performing nonconsensual oral sex on him.  

                    On June 14, 2011, the Kodiak magistrate denied Yelena's motion for a  

long-term protective order and dissolved the temporary order.  Immediately after the  

court denied Yelena's request for a long-term protective order, she took the children and   

went to Massachusetts without notifying George.  On June 15 Yelena sent George an   

email  informing  him  that  she  had  left  with  the  children.    She  did  not  disclose  her  


location, but she left a telephone number.  In the email, Yelena accused George of being  

mentally and physically abusive throughout their relationship.  

                    In mid-July 2011 Yelena reported the previous May's alleged sexual assault  


to the Coast Guard in Boston. The Coast Guard initiated an investigation into the sexual  


assault allegations that fall.  On October 6 the Coast Guard issued a Military Protective  


Order prohibiting George from contacting Yelena, Isaac, or Amy.  The Coast Guard held  

a probable cause hearing on court-martial charges against George on April 26, 2012.  

The investigating officer found reasonable grounds to believe that George committed the  


alleged sexual assault.  Although the officer recommended that the charges be forwarded  


to  general  court-martial,  the  Coast  Guard  ultimately  dismissed  the  charges  against  

George on July 10, 2012.  

          B.        Proceedings  

                    Yelena submitted an affidavit to the Taunton, Massachusetts district court  


on June 22, 2011, stating that she fled with the children because she was not granted a  

permanent  restraining  order  in  Kodiak  and  was  afraid  of  George.    On  June  23  the  

Taunton district court issued a temporary "Abuse Prevention Order" against George.  


Following a hearing, the court issued a permanent restraining order against George and  

granted Yelena sole custody of the children.  


                    In  Kodiak  superior  court,  George  sought  to  register  orders  issued  in  

                                                             -7-                                                        6912

----------------------- Page 8-----------------------

California in 2004 and in Massachusetts in 2008 that gave him shared custody of the  


children.  Yelena opposed on the basis that the Massachusetts restraining order gave her  


sole custody.  In August 2011 the Kodiak superior court set a hearing for September 30.  


On September 27 the superior court granted George's request to continue and reset the  


hearing for January 13, 2012.  George also requested that the court modify the orders to  


grant sole legal and physical custody to him. The court indicated that it would not decide  

custody  modification  at  the  January  13  hearing,  but  would  entertain  a  request  for  a  

custody modification trial after considering George's motion to register the 2004 and  

2008 out-of-state custody orders.  


                    On October 11 George submitted a motion and affidavit to the Taunton  


district  court  requesting  that  the  court  vacate  the  restraining  order  against  him.    He  


alleged that Yelena's request for a permanent restraining order in Alaska was denied  


because of credible testimony that Yelena, not he, was violent and a risk to the children.  


He further alleged that Yelena kidnapped the children and stole belongings from his  

home.  His motion and a subsequent motion to reconsider were denied.  


                    On November 1, 2011, George filed a custody modification complaint in  


the Barnstable, Massachusetts trial court. The court found that Alaska had "home state"  

jurisdiction because the children had lived in Alaska for six months before they were  


taken to Massachusetts.  The court also found that George's "testimony at [the] hearing  

was far more credible than [Yelena's]."  The court entered an emergency order vacating  

the  Taunton  district  court's  July  7  restraining  order,  granting  temporary  custody  to  

George, and directing Yelena to return to Alaska with the children.  


                    On January 13, 2012, the Kodiak superior court confirmed the validity of  

the November 2011 Massachusetts custody order and granted temporary custody to  

George.  On April 12 the Kodiak superior court issued an order denying Yelena's motion  


for expedited consideration and granting continued temporary custody to George until  

                                                               -8-                                                         6912

----------------------- Page 9-----------------------

an  interim  custody  hearing  could  be  held  in  May.    On  May  2  George  moved  to  


reschedule the interim custody hearing scheduled for May 10 because the Coast Guard  


investigation would not be completed at that time.  The court denied the motion and held  


the interim custody hearing on May 10.  At that hearing, the court granted continued  

temporary custody to George and scheduled a custody trial.  


                    The superior court held a custody trial beginning on June 19, 2012.  Yelena  


was scheduled to have visitation with the children that day, and the court held a visitation  

hearing because Isaac was unwilling to visit with Yelena.  Isaac was extremely upset  


when he was told that he would be visiting with his mother that day.  The court ordered  


that visitation occur, but stated Isaac could leave if necessary.  The trial continued on  

August 2, August 29, and September 20, 2012.  


                    On January 24, 2013, the superior court issued a final order and judgment  

granting primary physical and sole legal custody to George and ordering supervised  

visitation with Yelena.  The superior court found that Alaska had jurisdiction over the  


parties and the children under the Uniform Child Custody and Jurisdiction Enforcement  



Act (UCCJEA).   The court explained that it based its custody decision on consideration  

of the best interest factors as required by AS 25.24.150(c).  Because the children would  

be living with George in Alaska and Yelena lived in Massachusetts, the court ordered  

telephone or internet visitation to occur twice weekly between Amy and Yelena, and  


ordered George and Yelena to arrange supervised in-person visitation.  The court stated  


that visitation could begin with Isaac when his counselor said he was ready.  The court  

ordered  in-person  visitation  to  be  supervised  until  George  reasonably  believed  


supervision was no longer necessary.  The court expressed that it would be ideal if the  

children could eventually spend the majority of the summer with Yelena; it also implied  

          5         Codified as AS 25.30.300-390.  

                                                             -9-                                                           6912  

----------------------- Page 10-----------------------

that shared physical custody was denied because the parties lived far apart.  Yelena  



                   "Trial  courts  have  broad  discretion  in  determining  whether  a  proposed  


                                                                                 We will not reverse a custody  

child-custody modification is in the child's best interest." 

decision unless the superior "court has abused its discretion or the controlling factual  

findings are clearly erroneous."7  Abuse of discretion in child custody cases occurs when  

the superior court "considers improper factors in determining custody, fails to consider  


statutorily mandated factors, or assigns disproportionate weight to certain factors while  


                           A factual finding is clearly erroneous if, after reviewing the record,  

ignoring others."                                                                          

we are left "with the definite impression that a mistake has been made."9  


                   We  review  visitation  orders  for  abuse  of  discretion.10     "Whether  the  


superior court applied the correct legal standard is a question of law that we review  


de novo, adopting the rule of law that is most persuasive in light of precedent, reason[,]  

                 11                                                                  12 

and policy."         We review challenges to jurisdiction de novo.  

         6        Heather W. v. Rudy R. , 274 P.3d 478, 481 (Alaska 2012) (quoting                            Rego v.  

Rego , 259 P.3d 447, 452 (Alaska 2011)) (internal quotation marks omitted).  

         7        Iverson  v.  Griffith ,  180  P.3d  943,  945  (Alaska  2008)  (citing Fardig  v.  

Fardig , 56 P.3d 9, 11 (Alaska 2002)).  

         8        Id.  

         9         Osterkamp v. Stiles, 235 P.3d 178, 183 (Alaska 2010) (citing In re Adoption  

of Missy M., 133 P.3d 645, 648 (Alaska 2006)).  

         10       Faro v. Faro , 579 P.2d 1377, 1379 (Alaska 1978) (citing Curgus v. Curgus,  

514 P.2d 647, 649 (Alaska 1973)).  

         11       Rego , 259 P.3d at 452 (quoting McQuade v. McQuade , 901 P.2d 421, 423  



                                                         -10-                                                    6912

----------------------- Page 11-----------------------


          A.       The Superior Court Had Jurisdiction Under The UCCJEA.  

                   Yelena argues that the superior court erred by allowing "forum shopping."  


She  alleges  that  the  Barnstable,  Massachusetts  court  erred  by  issuing  a  temporary  

custody order and vacating the Taunton, Massachusetts court's permanent restraining  

order  against  George,  which  granted  custody  of  the  children  to  her.    Her  argument  


implies that the Kodiak superior court lacked jurisdiction and thus improperly enforced  

the Barnstable, Massachusetts court's order.  

                   Both  Alaska  and  Massachusetts  have  adopted  the  initial  jurisdiction  

                                            13  under which a court has jurisdiction to make a child  

requirements of the UCCJEA,                     

custody determination if the "state was the home state of the child within six months  


before the commencement of the proceeding and the child is absent from [the] state but  


                                                                                                     "A child's home  

a parent or person acting as a parent continues to live in [the] state." 


state is the state where the child has lived with his parent or person acting as a parent for  


six consecutive months immediately before the commencement of the proceeding."                                               

                   The Alaska court, not the Massachusetts courts, had home state jurisdiction  


in this case.  The children lived in Alaska from December 14, 2010 until June 14, 2011,  



n.3 (Alaska 1995)) (internal quotation marks omitted).  

          12       Atkins v. Vigil , 59 P.3d 255, 256-57 (Alaska 2002).  

          13       See AS 25.30.300; M           ASS . GEN . LAWS ch. 209B  2 (not expressly adopting  

UCCJEA,          but    using      functionally        identical      language);        U         

                                                                                          NIF .   CHILD       CUSTODY  





                   AS  25.30.300(a)(2);  see  also  UNIF .  CHILD  CUSTODY  JURISDICTION  &  


  NFORCEMENT ACT  201(a)(1); MASS . GEN . LAWS ch. 209B  2(a)(1).  

          15       Atkins , 59 P.3d at 257 (citing 28 U.S.C.  1738A(b)(4)).  

                                                           -11-                                                      6912

----------------------- Page 12-----------------------

exactly  six  months.    Thus,  Alaska  was  the  children's  home  state  when  George  


commenced this action in August 2011.  Though the Taunton, Massachusetts court may  


have had emergency jurisdiction to issue a domestic violence protective order that could  


                                                            that  order  was  subsequently  vacated  by  another  

have  granted  custody  to  Yelena,                                           

Massachusetts court and thus had no continuing legal effect.  Notably, Yelena did not  

appeal the Massachusetts court order that vacated the earlier permanent restraining order,  

which granted custody to Yelena.  Under the circumstances, the Alaska superior court  

did not err in concluding it had jurisdiction to hear and decide the custody case.  

           B.	        The  Court  Did  Not  Abuse  Its  Discretion  By  Awarding  Primary  

                      Physical And Sole Legal Custody To George.  

                      Yelena alleges error in a number of the superior court's specific factual  


findings and legal conclusions. These arguments are discussed below. Because the court  


properly declined to apply AS 25.24.150(g)'s domestic violence presumption, carefully  


considered  and  properly  weighed  the  statutory  best  interests  factors,  and  correctly  

applied the law, the superior court did not abuse its discretion by awarding primary  

physical and sole legal custody of Isaac and Amy to George.  

                      1.	        The  superior  court  did  not  err  by  declining  to  apply  the  

                                 domestic violence presumption.  


                      The superior court concluded that the evidence did not support a finding of  


domestic  violence against either  party, and  thus it did  not apply  AS  25.24.150(g)'s  


domestic violence presumption.  Yelena argues that the superior court erred by failing  

           16         See AS 25.30.330(a) ("A court . . . has temporary emergency jurisdiction             

if the child is present in [the] state and the child has been abandoned or it is necessary   

in an emergency to protect the child because the child, or a sibling or parent of the child,     

is subject to or threatened with mistreatment or abuse."); M                                     ASS .  GEN .  LAWS ch. 209B   

2(a)(3) (temporary emergency jurisdiction). The Barnstable, Massachusetts court found  


that it had emergency jurisdiction, but that Alaska had home state jurisdiction.  

                                                                    -12-	                                                             6912

----------------------- Page 13-----------------------


to apply the  presumption because George has a history of domestic violence and is  


therefore  forbidden  from  having  custody  under  AS  25.24.150(g)  and  (h).    George  


responds  that  the  superior  court's  finding  was  "overwhelmingly  supported  by  the  



                       Alaska Statute 25.24.150(g) provides:  "There is a rebuttable presumption  


that a parent who has a history of perpetrating domestic violence against the other parent,  


a child, or a domestic living partner may not be awarded sole legal custody, sole physical  


custody, joint legal custody, or joint physical custody of a child."  "A parent has a history  

of perpetrating domestic violence  . . . if the court finds that, during one incident of  

domestic violence, the parent caused serious physical injury or the court finds that the  


                                                                                                                            Where a court  

parent has engaged in more than one incident of domestic violence." 

makes  a  finding  of  domestic  violence,  it  must  additionally  determine  whether  the  

domestic violence requires application of the presumption.18  


                       Whether the court's findings on domestic violence are supported by the  


                                                                                                        But whether the court used  

record is a question of fact which we review for clear error. 


the proper legal standard for applying the domestic violence presumption - including  


whether the court's findings support applying the presumption - is a question of law,  

which we review de novo.20  

            17         AS 25.24.150(h).  

            18         Puddicombe v. Dreka , 167 P.3d 73, 77 (Alaska 2007) ("[W]hen the record   

shows that domestic violence has occurred and the court so finds, it is plain error for the       

court not to make findings as to whether the domestic violence amounted to a history of                      

perpetrating domestic violence.").  

            19         Misyura v. Misyura , 242 P.3d 1037, 1039, 1041 (Alaska 2010).  



                       See Rego v. Rego, 259 P.3d 447, 452, 460-61 (Alaska 2011) (reviewing de  


                                                                       -13-                                                                  6912

----------------------- Page 14-----------------------


                     The   superior   court's   domestic   violence   findings   were   not   clearly  



erroneous.           Yelena and George gave conflicting accounts of the alleged 2007 and 2011  


assaults, and both have a long history of alleging abuse against the other.  Because of this  


contradictory evidence, weighing the evidence and evaluating credibility - a function  



properly left to the trial court                 - was particularly important.  In this case, trial courts  


in both Alaska and Massachusetts expressed doubts about Yelena's credibility.  It is also  

significant that no court made an evidence-based finding of domestic violence or sexual  


abuse by George following a trial at which George was present and able to testify and  


cross-examine Yelena.  A review of the facts reveals that:  criminal charges arising out  


of the 2007 and 2011 allegations were dismissed; the Kodiak magistrate did not grant  


Yelena's petition for a long-term domestic violence protection order against George in  

June   2011;   and   the   ex   parte   permanent   restraining   order   granted   in   Taunton,  


novo whether the superior court applied the proper legal standard in considering the  


provisions of AS 25.24.150); Zaverl v. Hanley, 64 P.3d 809, 820 n.29 (Alaska 2003)  

("Whether a violation of law gives rise to a legal presumption is a question of law which  


we review de novo." (citations omitted)); cf. Rockney v. Boslough Constr. Co., 115 P.3d  


1240, 1242 (Alaska 2005) (citing Kirby v. Alaska Treatment Ctr. , 821 P.2d 127, 129 n.5  


(Alaska 1991)) (reviewing applicability of statutory presumption of compensability in  

workers' compensation proceedings as a question of law).  



                     The superior court did err by concluding that Yelena's 2001 conviction was  


too dated to consider when evaluating the domestic violence presumption.  There is no  

express   time   limit   on   the   relevance   of   past   acts   of   domestic   violence   under  


AS 25.24.150(h), and because the court found that Yelena committed an act of domestic  


violence, it was clear error not to consider whether that finding required application of  


the domestic violence presumption.  Puddicombe , 167 P.3d at 77.  But because the court  


did not abuse its discretion by  awarding primary physical and sole legal custody to  


George,  and  because  a  single  incident  of  domestic  violence  does  not  automatically  

constitute a history of domestic violence, AS 25.24.150(h), the error is harmless.  

          22         See, e.g., Nancy M. v. John M. , 308 P.3d 1130, 1133 (Alaska 2013).  

                                                                -14-                                                          6912

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Massachusetts was vacated by another Massachusetts court.  Based on these facts, and  


given the court's credibility findings, the superior court did not clearly err by finding that  


George did not have a history of domestic violence.  Further, the superior court clearly  


considered the evidence of domestic violence in the context of the best interest factors  


as  required  under  AS  25.24.150(c)(6)  and  (7)  and  found  that  the  evidence  was  


insufficient to support Yelena's allegations.  

                   Because the superior court found that George did not have a history of  


domestic violence, and that finding is supported by the record, we conclude that the court  

properly declined to apply the domestic violence presumption.  

                   2.	       The superior court properly considered AS 25.24.150(c)'s best  

                             interest factors.  

                   Yelena argues that court's best interest findings are not supported by the  

evidence and that the court abused its discretion in making its custody decisions.  


                   "Alaska Statute 25.24.150(c) requires the superior court to base its custody  


rulings on the child's best interests and lists nine potentially relevant factors that the  


court must consider . . . ."              The best interests factors include:  

                   (1)  the  physical,  emotional,  mental,  religious,  and  social  

                   needs of the child;  

                   (2)  the  capability  and  desire  of  each  parent  to  meet  these  



                   (3) the child's preference if the child is of sufficient age and  

                   capacity to form a preference;  

                   (4) the love and affection existing between the child and each  


                   (5)  the  length  of  time  the  child  has  lived  in  a  stable,  

          23       Rosenblum v. Perales , 303 P.3d 500, 504 (Alaska 2013) (quoting Park v.  


Park , 986 P.2d 205, 206 (Alaska 1999)) (internal quotation marks omitted).  

                                                            -15-	                                                        6912  

----------------------- Page 16-----------------------

                    satisfactory environment and the desirability of maintaining     


                    (6) the willingness and ability of each parent to facilitate and     

                    encourage a close and continuing relationship between the  

                    other  parent  and  the  child,  except  that  the  court  may  not  


                    consider this willingness and ability if one parent shows that  


                    the  other  parent   has   sexually  assaulted  or  engaged  in  


                    domestic violence  against the parent or a child, and that a  


                    continuing relationship with the other parent will endanger  


                    the health or safety of either the parent or the child;  

                    (7) any evidence of domestic violence, child abuse, or child  


                    neglect in the proposed custodial household or a history of  


                    violence between the parents;  

                    (8) evidence that substance abuse by either parent or other  

                    members of the household directly affects the emotional or  


                    physical well-being of the child;  


                    (9) other factors that the court considers pertinent.  

                    Under factor one, the superior court found that Isaac and Amy generally  

had typical physical, emotional, religious, and social needs for children their age.  But  


the court noted that Isaac was having difficulty with his mother and was confused by  


Yelena and George's relationship.  The court stated, "Isaac seems to be psychologically  

and emotionally traumatized" and needs counseling.  


                    Under factor two, the superior court found that both parents were capable,  


"for the most part," of meeting the children's needs.  But the court observed that "Isaac  


had terrible complications from what seems to have been the lack of proper dental care."  


The court concluded that George was better able to meet the children's physical and  

emotional needs at the time of the trial.  The court did not find Yelena's claims that  

George had "poisoned the children against her" credible.  

          24        AS 25.24.150(c).  

                                                               -16-                                                         6912  

----------------------- Page 17-----------------------


                   Under factor three, the superior court found that the children were not old  

enough for the court to consider their preferences.   

                   Under factor four, the court found that both parents loved each child.  


                   Under factor five, the superior court found that stability weighed towards  

keeping the children with George, where they had been living for the past year.  


                   Under factor six, the court found  that neither parent seemed willing to  


encourage a relationship with the other, but that George was somewhat more willing to  

facilitate a relationship than Yelena.  The court weighed the fact that Yelena took the  


children to Massachusetts without notice against her.  The court noted that it could not  


consider willingness to facilitate a relationship if one parent showed that the other had  


committed sexual assault or domestic violence against the other parent or the children.  


                   Under  factor  seven,  the  superior  court  found  no  credible  evidence  of  


domestic violence or sexual assault, child abuse, or neglect.  The court stated that it took  

the  sexual  assault  accusations  very  seriously,  but  that  "these  accusations  are  not  


supported by the evidence."  The court further stated, "I find myself agreeing with [the  

Barnstable,  Massachusetts  judge]  that,  simply  put,  George  is  a  much  more  credible  

witness than Yelena."  But the court did note concern about Yelena neglecting Isaac's  

dental care.  

                   Under factor eight, the court found no credible evidence that either party  

had substance abuse issues that could affect the well-being of the children.  

                    The court declined to consider any additional factors.  

                   Having carefully reviewed the record, we conclude the superior court's  


findings are supported by the record and are not clearly erroneous.  The court considered  


all statutory best interest factors and did not abuse its discretion in awarding primary  

physical and sole legal custody to George.  

                                                            -17-                                                       6912

----------------------- Page 18-----------------------

                    3.	       The superior court did not abuse its discretion by considering  

                              the fact that Yelena took the children to Massachusetts without  


                              George's consent.  

                    Yelena argues that the superior court erred by finding that she improperly  

took the children from Alaska.  She suggests that she was justified in taking the children  


to Massachusetts because George sexually assaulted her and she feared for her life.  The  

superior court considered Yelena's taking the  children to Massachusetts against her  


under AS 25.24.150(c)(6).  The court suggested that taking the children to Massachusetts  


without informing George was evidence of a lack of willingness to include George in the  

children's lives.  

                    In Stephanie W. v. Maxwell V., we held that the superior court must not  


penalize a parent for lack of willingness to facilitate a relationship between a child and  


the other parent based on a good-faith allegation of sexual abuse of the child, unless that  


parent "has continued [an] unwillingness to facilitate such a relationship in the period  


after the superior court made [an] evidence-based finding that [the other parent] had not  


abused [the child]."               Yelena alleges that she fled from Kodiak because of George's  


abuse.  But we do not need to consider whether our reasoning in Stephanie W. extends  


to a parent fleeing with the children based on a good-faith fear for the children's safety  

following allegations of domestic violence against the other parent because, in this case,  


Yelena took the children to Massachusetts after the magistrate found that the evidence  


did not support issuing a long-term protective order against George.  Thus, Stephanie W.  

is inapposite to the facts in this case.  


                    The record supports the superior court's finding that Yelena removed the  


children to Massachusetts without notifying George, and that the removal occurred after  


a court found Yelena's allegations unsubstantiated.  These facts are relevant to analyzing  

          25        274 P.3d 1185, 1191 (Alaska 2012).  

                                                              -18-                                                             6912  

----------------------- Page 19-----------------------

Yelena's willingness to facilitate a relationship between the children and George, and our  


precedent does not preclude consideration of this evidence.  Thus, we conclude that the  

superior court did not abuse its discretion by weighing the fact that Yelena took the  

children to Massachusetts against her under AS 25.24.150(c)(6).  

                   4.	       Other issues  

                   Yelena makes a number of other arguments, none of which have merit.  

                             a.	       The   superior   court   did   not   abuse   its   discretion   by  

                                       granting extensions.  


                   Yelena argues that the superior court erred by granting multiple extensions.  

George responds that the  orders granting extensions were not final orders, and therefore  

are not appealable.  

                   An order granting an extension or continuance is ordinarily not appealable  



because it is not a final order.               Interlocutory review of such orders may be available  


under  the  circumstances  described  in  Alaska  Appellate  Rule  402.                                    In  this  case,  


however, Yelena is not seeking interlocutory review of an order granting a continuance,  

she is challenging a final custody order.  To the extent she argues that time extensions  


prejudiced the final judgment, her claim is reviewable for abuse of discretion.                                       

          26	      See Alaska R. App. P. 202.  

          27       Appellate Rule 402 allows a party to petition for review of an otherwise  

non-appealable order or decision  where postponement of review:  (1) "will result in  


injustice"; (2) where "[t]he order or decision involves an important question of law on  


which there is substantial ground for difference of opinion," and immediate review may  


advance termination of the litigation or is important to the public interest; (3) where the  


trial  court  has    "so  far  departed  from  the  accepted  and  usual  course  of  judicial  

proceedings" that review is necessary; or (4) where "[t]he issue is one which might  

otherwise evade review."  



                   Nielsen v. State , 623 P.2d 304, 307 (Alaska 1981) (citations omitted) ("The  


                                                            -19-	                                                     6912

----------------------- Page 20-----------------------


                    The  superior  court  ordered  two  continuances  over  the  course  of  the  


litigation in this case.  The court granted George's unopposed motion to continue the  


hearing  on  registering  the  out-of-state  custody  orders,  moving  the  hearing  from  


September 30, 2011, to January 13, 2012.  The court also granted George's motion to  

continue the July 3 trial date because George had recently hired counsel, who needed  


additional time to prepare.  Yelena opposed this motion, arguing that it was a stalling  


tactic to keep her away from the children.  The court moved the trial date to August 2.  


There is no evidence that this one-month extension prejudiced Yelena.  On the other  


hand, the court denied George's motion, which Yelena opposed, to reschedule a May 10  

interim custody hearing to allow the Coast Guard to complete its investigation.29  


                    Yelena did not oppose or object to the first continuance, so she is precluded  

                                            30  With respect to the motion she did oppose, the court did  

from arguing error on appeal.                                                                  

not abuse its discretion.  

                              b.	       The   superior   court   did   not   abuse   its   discretion   by  

                                        declining to appoint a custody investigator.  

                    Yelena argues that the superior court erred by declining to appoint a court  


custody investigator or guardian ad litem.  George responds that neither party moved for  



decision whether to grant or deny a motion for continuance is committed to the sound  


discretion of the trial court . . . ."); see, e.g., Azimi v. Johns , 254 P.3d 1054, 1059 (Alaska  


2011) (applying abuse of discretion standard to denial of a request for a continuance in  


a civil case).  

          29        There is no order denying the motion to reschedule in the record, but the  

hearing proceeded on May 10, 2012.  



                    See D.A.W. v. State , 699 P.2d 340,  342 (Alaska 1985) ("A  party may not  


raise for the first time on appeal an alleged error to which he failed to object to in the trial  

court." (quoting Chugach Elec. Ass'n v. Lewis, 453 P.2d 345, 349 (Alaska 1969))).  

                                                              -20-	                                                        6912

----------------------- Page 21-----------------------

these appointments.  

                    At an interim custody hearing, Yelena orally requested that the superior  


court appoint a court custody investigator.  The court denied her request, explaining that  


the custody office was busy and it was likely no one would be able to meet with them  

until the fall.  Neither party filed a written motion to appoint a custody investigator.  

                    A trial judge has discretion whether to appoint a custody investigator,31 and  


here the court permissibly exercised its discretion not to appoint one.  We conclude that  

the superior court's decision not to appoint a custody investigator was not an abuse of  


                             c.	       The  superior  court  did  not  clearly  err  by  finding  that  

                                       Yelena failed to provide proper dental care for Isaac.  


                    Yelena argues that the superior court erred by finding that she neglected to  

provide proper dental care for Isaac.  She asserts that she obtained Coast Guard medical  


screenings for the children before moving to Kodiak and that they showed no chronic  


dental conditions.  George disputes the credibility of the Coast Guard medical screening  

documents that Yelena provided.  


                    It is not clear from the record when the cyst on Isaac's face first appeared.  


George testified that the cyst was already present when Isaac arrived in Kodiak.  The  


superior court admitted the Coast Guard medical screening documents at trial, and there  

is no apparent basis to conclude that they are not credible.  But the documents are not  

particularly  helpful.    They  simply  contain  a  checked  box  indicating  that  the  person  


conducting the examination found no dental problems.  And it is not clear when the  


examination occurred or how extensive it was.  The documents in the record do not show  


any   treatment   before   April   28,   2011,   when   pediatric   dentists   at   Joint   Base  

          31        Alaska R. Civ. P. 90.6.  

                                                             -21-	                                                         6912  

----------------------- Page 22-----------------------

Elmendorf-Richardson  diagnosed  Isaac  as  having  a  "cystic  lesion  that  was  grossly  

disfiguring and causing dental and maxillofacial deformity."  But George stated that he  


took Isaac to the dentist immediately after Isaac arrived in Kodiak and a series of visits  

occurred before Isaac was referred to the specialists in Anchorage.  


                   Though there is arguably conflicting evidence regarding whether the cyst  


was present when Isaac moved to Kodiak, it is the trial court's role to weigh evidence  

and evaluate credibility,32 and George's testimony is sufficient to support the superior  

court's finding.  Because the finding is supported by the record, we conclude that the  

superior court did not clearly err by finding that Yelena neglected Isaac's dental care.  

                             d.	      The  superior  court  did  not  clearly  err  by  finding  that  

                                      Isaac was "traumatized" by seeing his mother.  

                   Yelena  argues  that  the  superior  court  erred  by  finding  that  Isaac  was  


"traumatized"  by  his  visit  with  her  in  June  2012.                     Because  the  court's  finding  is  


supported by testimony at the hearing after Isaac was unwilling to visit with Yelena, we  

conclude that the court did not clearly err.  


                             e.	      The  superior  court  did  not  clearly  err  by  finding  that  

                                      George lived in North Carolina at one time.  


                   Yelena argues that the superior court erred by finding that George lived in  


North Carolina at one time.  Whether George ever lived in North Carolina appears to be  


irrelevant to the outcome of this case.  But, in any case, the  finding was not clearly  

erroneous:  A California court granted George permission to move to North Carolina  

with Isaac in 2004, and Yelena acknowledged that George was in North Carolina for at  

least some period of time.  

          32       E.g. , Nancy M. v. John M., 308 P.3d 1130, 1133 (Alaska 2013).  

                                                           -22-                                                        6912  

----------------------- Page 23-----------------------


           C.	        It  Was  Error  To  Order  Supervised  Visitation  Without  Adequate  


                      Findings; It Was An Abuse Of Discretion To Fail To Specify A Plan  

                      For Achieving Unsupervised Visitation.  

                      Yelena argues that the superior court abused its discretion by ordering  


supervised visitation at George's discretion.  The superior court's order did not give  


George discretion whether to allow visitation - it required regular telephone or internet  

visitation  and  occasional  in-person  visitation  -  but  the  order  did  require  in-person  

visitation to be supervised until George decided supervision was no longer necessary.  


                      We review orders setting visitation for abuse of discretion.                                          "[T]he best  

interests  of  the  child  standard  normally  requires  unrestricted  visitation  with  the  



noncustodial parent."                   We have held that where a court deviates from this norm by  


requiring supervised visitation, the decision "must be supported by findings that 'specify  

how unsupervised visitation will adversely affect the child's physical, emotional, mental,  



religious,  and  social  well-being.'  "                          Because  that  requirment  is  derived  from  the  

superior court's statutory obligation to consider certain factors when setting visitation  


terms, whether the court made the required findings to support supervised visitation is  

a question of law.36  

           33         Faro v. Faro , 579 P.2d 1377, 1379 (Alaska 1978) (citing Curgus v. Curgus,  

514 P.2d 647, 649 (Alaska 1973)).  

           34	        J.F.E. v. J.A.S.        , 930 P.2d 409, 413 (Alaska 1996) (citing AS 25.20.060(c)).   

           35         Fardig v. Fardig , 56 P.3d 9, 14 (Alaska 2002) (quoting J.F.E. , 930 P.2d at  

413-14) (finding that mother's drug use was detrimental to children's well-being was  

supported  by  psychologist's  testimony  and  was  sufficient  to  support  supervision  




                      J.F.E. , 930 P.2d at 413 (holding that in ordering visitation, superior court  

must  consider  AS  25.24.150's  best  interests  factors,  the  legislative  intent  favoring  

"frequent continuing contact with both parents" expressed in AS 25.20.060, and the  



                                                                    -23-	                                                              6912

----------------------- Page 24-----------------------

                     Because Yelena previously left the state with the children without notifying  

George, and because of Isaac's reaction to his visit with Yelena, supervised visitation  


may be appropriate.  But it was error for the superior court not to make express findings  


that specified why unsupervised visitation would adversely affect the children's well- 


being.  The court implied that because Yelena had left with the children before, there was  


a risk that she would take the children again, and the court suggested that contact with  

Yelena could be psychologically damaging to Isaac.  These implications and suggestions  

are insufficient to support visitation restrictions.37  

                    Moreover, when a court orders supervised visitation, the court ordinarily  

should  "specify  a  plan  by  which  unsupervised  visitation  can  be  achieved."38                                         The  

superior court has discretion to establish a plan for ending supervised visitation that is  


                                                                           But absent a compelling reason to the  

appropriate under the facts of a particular case. 


"right and responsibility of reasonable visitation" articulated in AS 47.10.84(c)).  We  

note,  however,  that  where  a  trial  court  makes  the  required  findings,  whether  those  


findings support a particular restriction on visitation is left to the trial court's discretion.  




                    See id.  at 412-13 (holding that a finding that a child's nightmares were  


reported to be worse after visiting with her father and a finding that implied acceptance  


of "a psychologist's statement that [the child] has increased anxiety and sexual acting out  

after visits with her father" were not sufficient to support a supervision requirement  

because they did not specify how unsupervised visitation would adversely affect the  


child's well-being).  



                    Monette v. Hoff , 958 P.2d 434, 437 (Alaska 1998); see also Fardig , 56 P.3d  

at 14-15.  



                    See Fardig, 56 P.3d at 14-15 (plan was sufficient where the superior court  


would  consider  unsupervised  visitation  on  motion  after  the  parent  "under[went]  a  


rigorous clinical assessment showing she was clean and sober"); J.F.E. , 930 P.2d at 414  


(if on remand the superior court found supervision to be necessary, it "should consider  


                                                               -24-                                                         6912

----------------------- Page 25-----------------------

contrary that is supported by the record, the court must establish a plan or criteria for  

ending the supervision requirement.40  And the plan may not delegate authority to impose  

a visitation restriction to one of the parties.41  


                    Here it was an abuse of discretion (1) to fail to specify a plan by which  

unsupervised visitation could be achieved, and (2) to order supervised visitation until  


George  reasonably  believed  supervision  was  no  longer  necessary.    This  effectively  


delegated to George the decision whether to impose a condition on visitation.  As the  

superior court expressed in its decision, under ideal circumstances in the future, the  


children will spend a significant portion of the year with Yelena unsupervised.    On  

remand  the  superior  court  should  consider  how  to  create  an  appropriate  roadmap  


potentially leading to unsupervised visitation.  The plan may include periodic hearings,  

advice of professional counselors, a gradual reduction in supervision as long as some  


condition is met, or any number of other options, but it may not be left to the discretion  

of one of the parents.  


whether to order periodic reviews of the continuing need for the restriction and whether  


to establish criteria which might signal the end to the need for the restriction."); Monette ,  


958 P.2d at 437 (superior court's order requiring supervised visitation for a period of  

three years, after which the mother could seek modification, was appropriate where  

mother had a history of hiding the child from the father and evidence suggested extended  

contact with her could cause psychological damage).  



                    See Monette , 958 P.2d at 437.  



                    See   Misyura   v.   Misyura,   242   P.3d   1037,   1041-42   (Alaska   2010)  


(concluding that the superior  court erred by giving one parent discretion whether to  

require the other parent to attend a batterers' intervention program in order to have  

visitation with their children).  

                                                             -25-                                                       6912

----------------------- Page 26-----------------------

V.       CONCLUSION   

                  For the forgoing reasons we AFFIRM the superior court's award of primary  

physical and sole legal custody to George, and we REMAND for further proceedings on         

visitation consistent with this opinion.  

                                                          -26-                                                 6912

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