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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Red Elk v. McBride (3/13/2015) sp-6987
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
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KEITH RED ELK, )
) Supreme Court No. S-15240
Appellant, )
) Superior Court No. 3HO-11-00061 CI
v. )
) O P I N I O N
LAURA B. MCBRIDE, )
) No. 6987 - March 13, 2015
Appellee. )
_______________________________ )
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Homer, Charles T. Huguelet, Judge.
Appearances: Phil N. Nash, Kenai, for Appellant. Laura B.
McBride, pro se, Homer, Appellee.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
STOWERS, Justice.
I. INTRODUCTION
Two parents disputed the legal custody and visitation rights for their
daughter; the mother resides in Homer and the father resides on the Fort Peck Indian
Reservation in Montana. The superior court awarded sole legal custody to the mother
because it concluded that the parties could not communicate effectively to co-parent their
daughter. The court ordered unsupervised visitation between the father and the daughter
in Alaska, but prohibited visitation on the reservation until the daughter turned eight.
----------------------- Page 2-----------------------
Although the superior court did not abuse its discretion when it decided legal custody,
it failed to fully justify its decision when creating its restrictive visitation schedule and
allocating visitation expenses. Consequently we remand for further proceedings
consistent with this opinion.
II. FACTS AND PROCEEDINGS
A. Facts
In 2009 Laura McBride, who was living in Homer, left to attend a welding
certification program in Poplar, Montana, on the Fort Peck Indian Reservation. There
she met Keith Red Elk, who was the Operations Manager for Fort Peck Tech Services1
and also her instructor for the program. McBride and Red Elk became friends, and began
a romantic relationship four or five months later. After the end of the welding program
McBride was offered a position welding for Fort Peck Tech Services.
McBride learned that she was pregnant sometime around New Years 2010.
She felt that her relationship with Red Elk changed after she became pregnant. McBride
alleges that Red Elk threatened to fire her, made her leave his home, and one time pulled
back his hand as if he intended to hit her. McBride decided to return to Homer, mainly
because she felt that Red Elk was controlling. Red Elk made it clear that he believed
McBride would not be able to support herself on her own. He also believed that
McBride was only temporarily going to Homer and would return to Montana where she
would raise their child.
When McBride first returned to Homer she and Red Elk spoke on the phone
daily. But their relationship quickly deteriorated to the point where only email
1
Fort Peck Tech Services is the largest employer on the reservation,
employing 30 workers, and it brings in the lion's share of the reservation's revenue. As
operations manager at Fort Peck Tech Services, Red Elk is in charge of all hiring and
firing decisions.
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communication was effective. Even using email, the couple did not communicate well;
instead "[e]ach gave speeches to the other." Red Elk was depressed that McBride did
not want to return to Poplar, and he was very uncomfortable with McBride's plans for
their daughter's birth: McBride wanted to deliver the baby in her cabin and Red Elk
wanted the child to be born in a hospital.
2
was born in August 2010. Red Elk traveled to Homer in September
Vera
and stayed for 11 days to visit with his daughter. During the visit McBride reiterated her
belief that they could not work things out because Red Elk was too controlling.
In October McBride and Vera traveled to North Dakota for a funeral.
Red Elk picked them up at the airport and drove them to the funeral. Over McBride's
objections, Red Elk stopped in Poplar on the way. McBride and Red Elk fought, and
McBride told Red Elk to leave once he had dropped them off at the funeral.
After returning to Homer, McBride emailed Red Elk that she wanted to take a
break from communication. In response, Red Elk left six intoxicated messages on
McBride's answering machine threatening to kill her, threatening her with legal action,
and threatening to take Vera to the reservation. Afterward Red Elk did not remember
leaving the messages and insinuated that it was McBride's fault because she drove him
to drink. McBride applied for and received a long-term protective order. Red Elk
unsuccessfully tried to dissolve the protective order on two separate occasions. He also
hired a private investigator to follow McBride.
B. Proceedings
Red Elk filed a request for emergency custody in the Fort Peck Tribal Court
in December 2010. He alleged that: (1) McBride lived in a remote place; (2) she was
threatening suicide and had a mental disorder; and (3) she "refused to feed the child for
2 A pseudonym has been used to protect the child's privacy.
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three . . . days after birth."3 Red Elk was represented by a tribal lay advocate in the tribal
court proceeding; McBride appeared pro se. In March 2011 the Fort Peck Tribal Court
"denied jurisdiction over the cause of action" and dismissed Red Elk's petition. Red Elk
appealed the dismissal to the Fort Peck Court of Appeals, but in August 2011 the Fort
Peck Court of Appeals affirmed the trial court's dismissal.
In the interim, in February 2011, McBride filed a complaint for custody in
the Alaska Superior Court in Homer. She did not advise the superior court of the
pending action in the Fort Peck Tribal Court. In July Red Elk filed a motion in the
superior court to defer to the action in the Fort Peck Tribal Court, but his motion failed
to mention that the tribal court action had been dismissed. After the Fort Peck Court of
Appeals' decision became public, counsel for McBride brought it to the superior court's
attention. The court denied Red Elk's motion to defer.
In January 2012 Red Elk filed a new petition in the Fort Peck Tribal Court.
He alleged that: (1) Vera had not been given her immunizations; (2) she had an
unexplained scar on her forehead; and (3) she was wearing shoes that were too small.
The tribal trial court dismissed the petition for lack of jurisdiction. Red Elk again
appealed.
Trial in the superior court, set for January 2012, was continued in order for
Red Elk to obtain new representation. Once Red Elk obtained new counsel, his attorney
moved to file amended defenses, counterclaims, and an amended answer. The superior
court denied his motion.
The custody trial was ultimately held in December 2012. Red Elk argued
for shared legal custody with open and frequent visits on the reservation starting when
3 Red Elk also made these same allegations to the Alaska Office of Children's
Services (OCS) in Homer. OCS conducted a home visit and found the concerns
unsubstantiated.
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Vera turned four. He wanted Vera to visit the reservation as soon as possible so she
could begin learning about her Sioux heritage. He also raised concerns with many of
4
McBride asked for sole legal custody and a restriction
McBride's parenting decisions.
that Vera not be allowed to visit the reservation until she turned twelve because McBride
was afraid that Red Elk would file an emergency petition alleging neglect in order to
keep Vera there. Margaret Coleman, a visitation supervisor, also testified. She described
Red Elk as charming, charismatic, and very attentive and appropriate with Vera. But she
testified that some of Red Elk's conduct during the visit alarmed her and made her think
that Red Elk was a "flight risk." She was concerned because Red Elk seemed to feel that
he had a "divine right" to Vera and "was going to war" with McBride.
The superior court awarded primary physical and sole legal custody to
McBride. The court concluded that "[c]ooperation and meaningful communication
between Ms. McBride and Mr. Red Elk [are] not possible at this time." The court found
that "Mr. Red Elk appears to be incapable of maintaining a relationship with
Ms. McBride unless he is the dominant party" and that, due to differences in their
outlooks on life, they could not communicate effectively. It also noted "very little
history of compromise." The court ordered McBride to begin teaching Vera about her
Sioux heritage and allowed that Red Elk could provide supplemental materials with
McBride's cooperation.
The superior court ordered unsupervised visitation with Vera, but it
concluded that "if [Vera] visits her father on the reservation he is very likely to file a
petition alleging neglect with the tribal court and ask for emergency custody." The court
based this conclusion on its finding that Red Elk had a history of making "false or
4 Mainly these were: (1) McBride's decisions to have the birth at home;
(2) her delay in getting Vera immunized; (3) her decision to start toilet training at four
months; and (4) her use of sign language when Vera was learning to talk.
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exaggerated claims of abuse." As a consequence, the court ordered that visitation be
restricted to Alaska until Vera turned eight. The court also declined to order Vera's
presence on the reservation for a naming ceremony "[w]ithout adequate assurances or
guarantees" that Red Elk would not "use the occasion of a naming ceremony to hold
[Vera] on the reservation pending a decision by the tribal court on renewed allegations
of abuse or neglect." The superior court laid out a schedule of tiered visitation allowing
greater visitation as Vera grew older, and clarified that Red Elk must "reasonably
satisf[y]" the quota from the previous tier of visitation before moving to the next tier.
Red Elk filed two motions for reconsideration of the superior court's orders.
Relevant to this appeal, he argued that: (1) the cost of traveling to Homer to fulfill the
tiered visitation order was prohibitive; (2) it was not in Vera's best interest to wait so
long to travel to the reservation given that members of his family had a history of early
death; (3) the restrictive visitation schedule was a penalty for exercising his right to file
proceedings in tribal court; (4) Vera would be unable to learn about her Sioux heritage
because he would not be able to comply with the quotas; and (5) McBride should not be
the parent responsible for educating Vera about her Sioux heritage. The superior court
denied both of Red Elk's motions for reconsideration.
Red Elk appeals. The Fort Peck Court of Appeals has since affirmed the
dismissal of his second petition.5
5 In March 2014 the Fort Peck Court of Appeals released its decision in Red
Elk's second petition. In re A.V.B.M , FPCOA No. 616 (Mar. 6, 2014). The court of
appeals again dismissed the petition, holding that Fort Peck was an inconvenient forum.
Id. at 1. But it expressed concern that although the tribal court had twice decided to defer
to Alaska, the Alaska Superior Court had refused to allow Vera to visit the reservation.
Id. at 3.
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III. STANDARD OF REVIEW
"The superior court has broad discretion in its determinations of child
6
custody." We will overturn the superior court's conclusion on a custody issue "only if
the entire record demonstrates that the controlling findings of fact are clearly erroneous
7
or that the trial court abused its discretion." "A factual finding is clearly erroneous
when a review of the record leaves the court with a definite and firm conviction that the
8
superior court has made a mistake." An abuse of discretion exists where the superior
court "considered improper factors in making its custody determination, failed to
consider statutorily mandated factors, or assigned disproportionate weight to particular
9 1
factors while ignoring others." We review visitation awards for abuse of discretion,
including the allocation of visitation expenses.11
6 Limeres v. Limeres , 320 P.3d 291, 295 (Alaska 2014).
7 Chesser-Witmer v. Chesser, 117 P.3d 711, 715 (Alaska 2005) (quoting
Hamilton v. Hamilton , 42 P.3d 1107, 1111 (Alaska 2002)) (internal quotation mark
omitted).
8 Fardig v. Fardig , 56 P.3d 9, 11 (Alaska 2002) (internal quotation marks
omitted).
9 Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska 1998).
10 Skinner v. Hagberg, 183 P.3d 486, 489 (Alaska 2008) (citing Lone Wolf v.
Lone Wolf , 741 P.2d 1187, 1190 (Alaska 1987)).
11 C.R.B. v. C.C., 959 P.2d 375, 384 (Alaska 1998) (setting standard as a
matter of first impression), overruled on other grounds by Evans v. McTaggart,
88 P.3d 1078, 1085 (Alaska 2004); see also Ronny M. v. Nanette H., 303 P.3d 392, 400
(Alaska 2013).
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----------------------- Page 8-----------------------
We also review the superior court's decision whether to grant leave to
12
amend pleadings for abuse of discretion.
IV. DISCUSSION
On appeal Red Elk challenges: (1) the superior court's decision not to
allow him to amend his pleadings; (2) the court's decision on legal custody, including
its order that McBride educate Vera about her Sioux heritage; and (3) the court's
visitation schedule, which he argues is prohibitively expensive and a penalty against him
for filing in the Fort Peck Tribal Court.
A. The Superior Court Did Not Abuse Its Discretion When It Denied Red
Elk's Motion To Amend His Pleadings.
Alaska Civil Rule 15(a) provides that if trial has been set a party may only
amend a pleading "by leave of court or by written consent of the adverse party," but
"leave shall be freely given when justice so requires." "If a party would be prejudiced
by a proposed amendment, the court must apply a balancing test to decide whether the
amendment should be granted, weighing the degree of prejudice to the opposing party
against the hardship to the movant if the amendment is denied."13
Red Elk moved to amend the pleadings in June 2012, more than one year
after he filed his answer. During this time, Red Elk was represented by three different
private attorneys. The case had already progressed through many filings. Trial was
scheduled to commence in July, and the parties had already filed their trial briefs. Under
these circumstances, McBride would have been prejudiced by a grant of leave to amend
so late in the proceedings. Red Elk, in comparison, did not experience hardship because
the arguments he mainly advanced were made previously in his motion to defer to the
12 Miller v. Safeway, Inc. , 102 P.3d 282, 288 (Alaska 2004) (citing Bauman
v. Day , 942 P.2d 1130, 1132 (Alaska 1997)).
13 Shooshanian v. Wagner, 672 P.2d 455, 458 (Alaska 1983).
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----------------------- Page 9-----------------------
Fort Peck Tribal Court.14 The superior court did not abuse its discretion by denying Red
Elk's motion to amend his pleadings.
B. The Superior Court Did Not Abuse Its Discretion When It Awarded
Sole Legal Custody To McBride.
Although there is a preference for joint legal custody,15 it may only be
16
awarded if it is in the best interest of the child. And "joint legal custody is only
appropriate when the parents can cooperate and communicate in the child's best
17
interest." The parent with legal custody is responsible for making all decisions
regarding "the [child's] education, non-emergency health care, morals, and religion."18
Red Elk argues that the superior court made erroneous factual findings and
improperly considered the age difference between him and McBride when awarding
legal custody. Red Elk also argues that the court abused its discretion in ordering
McBride to begin educating Vera about her Sioux heritage.
The superior court found that "[c]ooperation and meaningful
communication between Ms. McBride and Mr. Red Elk [are] not possible at this time"
because communication was "strained by age and outlook" and "[n]either party is likely
14 Red Elk did not specifically lay out all of the amendments he wished to
make, but the gist of his motion was directed at lack of subject matter jurisdiction and
improper venue, both of which Red Elk raised in his July 2011 motion to defer.
15 Farrell v. Farrell , 819 P.2d 896, 898 n.1 (Alaska 1991).
16 AS 25.20.060(c).
17
Jaymot v. Skillings-Donat, 216 P.3d 534, 540 (Alaska 2009) (quoting
Farrell , 819 P.2d at 899) (internal quotation marks omitted).
18
Ronny M. v. Nanette H., 303 P.3d 392, 404 (Alaska 2013) (citing
Elton H. v. Naomi R., 119 P.3d 969, 975 (Alaska 2005)).
-9- 6987
----------------------- Page 10-----------------------
to change." These findings are well supported in the record.19 In making these findings,
the court was merely commenting on the tension that the parties' differences in age and
outlook caused; the court did not view age as a factor in and of itself. The parties'
disagreements about such things as birthing and child rearing are exactly the kinds of
disputes that parents sharing legal custody must effectively consider together. The
superior court did not clearly err in its findings or abuse its discretion by considering the
fact that the parties' outlooks on life were very different.
Red Elk also argues that it was an abuse of discretion to order McBride to
educate Vera about her Sioux heritage despite McBride not being Sioux. But a person
is not disqualified from raising an Indian child merely by not being a member of the
20
child's tribe. The effect of the court's order is to ensure that Vera will be exposed to
her Sioux culture as much as possible even while she is in McBride's primary physical
custody. The court's order also enables both parents to be invested in Vera's cultural
education, which is surely in Vera's best interest. The court did not abuse its discretion
when it ordered that Vera would receive cultural education from McBride.
C. The Superior Court's Visitation Schedule Must Be Remanded.
Red Elk argues that the superior court's visitation schedule is prohibitively
expensive and that the court penalized him for filing in the Fort Peck Tribal Court.
Because the superior court did not make adequate findings or consider relevant evidence
19 There was extensive testimony at the hearing regarding Red Elk's
controlling tendencies and his disapproval of McBride's childbirth and child rearing
ideas.
20
See In re Adoption of Sara J., 123 P.3d 1017, 1032-33 (Alaska 2005)
("[T]his does not mean that [the non-Native parent] will be unable to meet the children's
cultural needs, nor does it disqualify her altogether from adopting the children.").
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in making its orders regarding visitation expenses and its visitation schedule, those
portions of the court's orders must be remanded.
1. Visitation expenses
Alaska Civil Rule 90.3(g) provides: "After determining an award of child
support under this rule, the court shall allocate reasonable travel expenses which are
necessary to exercise visitation between the parties as may be just and proper for them
to contribute." We have held that when "adequate explanation regarding visitation . . .
does not appear in the record, we . . . remand to the superior court for further
explanation."21
The superior court ordered that "Mr. Red Elk will be responsible for the
cost of transportation, including the cost of an escort until both parents agree Vera may
fly unaccompanied or until she reaches age 12." But the superior court did not explain
22
It did not consider
why Red Elk should bear the full burden of the visitation costs.
Rule 90.3(g) or conduct any analysis regarding the parties' finances in the context of
allocating visitation expenses. The court made no findings on affordability and received
no evidence regarding the actual costs associated with visitation. Allocating all of the
23 On
visitation expenses to one parent without explanation is an abuse of discretion.
remand, the superior court must consider what division of visitation expenses would be
21 Jack C. v. Tally C. , 284 P.3d 13, 21-22 (Alaska 2012) (remanding when
division of visitation time was not explained); see also Meidinger v. Meidinger, Mem.
Op. & J. No. 508, 1990 WL 10515483, at *3 (Alaska June 20, 1990) (holding that
although a trial court has discretion, "where a party is awarded more than requested and
more than the findings of fact support, the award, to pass appellate review, must be
explained").
22 See Ronny M., 303 P.3d at 407 (holding that it was an abuse of discretion
to allocate all of the visitation expenses to one parent without any further explanation).
23 See id.
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"just and proper."24 It should also consider whether it is just and proper to allocate some
or all of Vera's Alaska Permanent Fund Dividends towards visitation costs.25
2. Visitation schedule
The superior court's visitation order allows Red Elk increasingly long
visitation periods as Vera grows older, provided that Red Elk fulfills the visitation
allotted for each level before moving to the next. The order also restricts visitation to
Alaska until Vera turns eight, at which point she can visit Red Elk on the reservation.
Red Elk contends that the superior court penalized him for filing emergency custody
proceedings in the Fort Peck Tribal Court by restricting visitation to Alaska and by
creating a tiered visitation system that he could not financially complete because it
required him to continually fly to Alaska and spend long periods of time with Vera to
satisfy the court's tiered standard. Although it is not clear from the record, parts of the
superior court's custody order suggest that it weighed Red Elk's allegations in the Fort
Peck Tribal Court against him in deciding this visitation issue. If it did so, then the
superior court abused its discretion by failing to make adequate findings to substantiate
26
We have previously addressed this issue in the context of unproven
such a decision.
allegations of child abuse made by one parent against the other in court proceedings.
24 Alaska R. Civ. P. 90.3(g).
25 See Ronny M., 303 P.3d at 407-08.
26 Because we remand the visitation order due to the superior court's failure
to adequately explore whether Red Elk's allegations were made in good faith, we need
not decide whether it gave weight to Red Elk's choice of forum and whether it was
correct to do so.
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In Stephanie W. v. Maxwell V., two parties disputed custody of their minor
son.27 During the proceedings the mother alleged that the father had sexually abused the
son, but the superior court concluded that these allegations were not proven by a
preponderance of the evidence.28 In its discussion of the "willingness of each parent to
facilitate the child's relationship with the other parent"29 factor, the superior court noted
that the mother had made unfounded allegations of sexual abuse and was likely to be
30
unwilling to foster a relationship between the child and the father. We reversed,
holding that so long as the mother's allegations were made in good faith, the superior
court should not have weighed them against the mother when making its custody
31 On remand, the mother made additional allegations against the father
determination.
to the superior court.32 The court found that the allegations had "almost no support" and
weighed them against the mother in its discussion of the "willingness to foster a
relationship" factor.33 On appeal we held that the superior court properly considered the
allegations in its discussion of the "willingness" factor because the allegations did not
34
have a good-faith basis. We explained that in circumstances like these the superior
27 274 P.3d 1185, 1187-89 (Alaska 2012) (Stephanie W. I).
28 Id. at 1188-90.
29 AS 25.24.150(c)(6).
30 Stephanie W. I, 274 P.3d at 1190-92.
31 Id.
32 Stephanie W. v. Maxwell V., 319 P.3d 219, 229 (Alaska 2014)
(Stephanie W. II).
33 Id.
34 Id. ("[I]t is common sense that in a custody proceeding, good-faith
(continued...)
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----------------------- Page 14-----------------------
court must balance "the desire of the court to encourage good-faith, objectively credible
reports of parental behavior relevant to the custody dispute" with "the need to guard
against false reports and to consider a parent's actual unwillingness to foster a
relationship with the other parent."35
In another case, James R. v. Kylie R. , the superior court weighed one party's
allegations against the other as a negative factor in its determination of the "willingness"
factor, which was the dispositive factor in the court's custody decision.36 On appeal we
affirmed the court's custody decision, holding that the superior court did not clearly err
in finding that the father was less likely than the mother to facilitate a relationship
between the daughter and the other parent, and did not abuse its discretion in its custody
37 We reaffirmed our holdings from Stephanie W. I and II and noted that to have
order.
a good-faith basis, the allegations must be based on supporting evidence, either from the
superior court's "objective credibility determination" or other "extrinsic evidence."38 We
reiterated that "some unsupported allegations fall outside the normal course of litigation
39
and may speak to a parent's unwillingness to foster a relationship." In such cases "the
34(...continued)
allegations by one parent against the other parent regarding behavior relevant to the
custody decision and the child's best interests should not be held against the reporting
parent . . . where the allegations are based on supporting evidence.").
35 Id. at 230.
36 320 P.3d 273, 275-79 (Alaska 2014).
37 Id. at 281-83.
38 Id. at 283 (quoting Stephanie W. II, 319 P.3d at 230).
39 Id.
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----------------------- Page 15-----------------------
court may consider the parent's litigation conduct" in the context of the willingness of
both parents to foster a relationship with the other.40
Although custody rather than visitation was at issue in these cases, they are
relevant to our analysis in this appeal. Red Elk made two separate sets of allegations to
the tribal court. In his first petition to the tribal court he alleged that: (1) McBride lived
in a remote place; (2) she was threatening suicide and had a mental disorder; and (3) she
"refused to feed the child for three . . . days after birth." In his second petition to the
tribal court Red Elk alleged that: (1) Vera had not been given her immunizations; (2) she
had an unexplained scar on her forehead; and (3) she was wearing shoes that were too
small. But no court has taken evidence and evaluated these allegations, including
whether Red Elk made them in good faith. The tribal trial court, in its well-reasoned
decisions, did not proceed beyond jurisdiction and venue. And the superior court made
only conclusory findings that the claims were "false or exaggerated," but these findings
were not substantiated by evidence in the record.
If Red Elk made these allegations in good faith and on the basis of
supporting evidence, then it was an abuse of discretion for the superior court to weigh
Red Elk's litigation conduct against him and to make a visitation decision on this basis.
As we said in the Stephanie W. cases and in James R. , a court cannot penalize a parent
for his use of process without giving the parent the opportunity to establish whether the
allegations were made in good faith and without the court making factual findings to
support its decision. We reverse the superior court's visitation order and remand for the
40 Id.
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----------------------- Page 16-----------------------
court to make the required findings, which may involve taking additional evidence if
there are contested issues of fact.41
V. CONCLUSION
We AFFIRM the superior court's order denying Red Elk's motion to amend
the pleadings and its order on legal custody, but we REVERSE and REMAND its
visitation schedule and allocation of visitation costs for further proceedings consistent
with this opinion. We do not retain jurisdiction.
41 Red Elk also argues that the superior court imposed the tiered visitation
plan as "a penalty against [him]." The superior court's imposition of a tiered visitation
plan is not itself an abuse of discretion. Alaska courts have issued such visitation orders
in the past, see Trombley v. Trombley, Mem. Op. & J. No. 1116, 2002 WL 31682366,
at *1 (Alaska Nov. 27, 2002) (ordering tiered - also called stair-step - visitation), and
we agree with the superior court that "the gradual increase in overnight visits allows
[Vera] to develop the appropriate level of comfort." Nonetheless, the tiered visitation
schedule as it was ordered is inseparable from the superior court's overall visitation
order, which is being remanded for further proceedings.
Finally, Red Elk argues that the superior court abused its discretion when
it held that he must provide "adequate assurances" for the court to order Vera's
attendance at a naming ceremony on the reservation. We likewise decline to reach this
issue because the superior court's "adequate assurances" ruling is entangled with its
decision on visitation. It seems clear that the "assurances" the court was looking for
were that Red Elk would not file unsupported or unfounded custody claims in the tribal
court or otherwise keep Vera on the reservation and not return her to McBride. But as
we have explained, the superior court must first find that Red Elk's prior tribal court
filings and allegations were made without a good-faith basis or that there is a reasonable
risk that Red Elk would otherwise keep Vera on the reservation and not return her to
McBride. If there was no bad faith by Red Elk in his tribal court filings and there is no
reasonable risk that Red Elk will not return Vera to McBride, then there would be no
basis - in the absence of other evidence - for the superior court to demand assurances.
Thus the superior court will need to reconsider each of these related orders on remand,
whether it elects to make additional findings on Red Elk's conduct or whether it elects
to forgo relying on Red Elk's conduct as a factor in its visitation orders.
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