Court: Mom didn't get due process

July 10, 2005

KATE GOLDEN\Frontiersman reporter

A Mat-Su parent who was originally denied custody of her five children successfully challenged a Palmer Superior Court custody order to send one child to a different home, according to an Alaska Court of Appeals opinion released Friday.

After the couple -- for whom the appellate court used the pseudonyms Andrea S. and David R. -- divorced, the father was given custody of four of their five children.

But after the state Office of Children's Services substantiated a report that two of those children, both younger than 15, had sex with each other, Angela sought physical and legal custody of two boys and one girl. She asked the court also to grant her legal custody of the oldest boy, the child who had sex with the girl, but proposed that he stay in David's home pending potential counseling.

Judge Eric B. Smith denied her motion. He instead required that one of the two children who had sex leave David's household to live elsewhere indefinitely. David complied; one of the children moved in with her maternal uncle.

But any change in a custody order over one parent's objection requires an evidentiary hearing. And before any child is put in the custody of someone who is not one of the child's parents, a court must have evidence that either both parents are unfit, or that the child's welfare requires it to be in the custody of a person who is not its parent.

"Andrea is entitled to know why she has not been granted custody instead," theappellate court opined.

Plus, the court said, Andrea's motion was based on circumstances that had clearly changed. The motion, too, needed an evidentiary hearing before it could be denied.

The appellate court canceled Smith's denial of Andrea's motion and sent the case back to the superior court to hold the necessary hearings.