Stephanie filed a motion for a unilateral injunction against George in August 2006. She says there were two cases of domestic violence in June of that year. One of them showed George driving dangerously and screaming with the children in the car. In the other case, Stephanie said George held her by the wrists, yelled at her and spat in her face. After Stephanie received an ex parte domestic violence protection order, George filed for divorce and sought joint legal and physical custody. In her response to the complaint, Stephanie requested legal and primary sole physical custody. We recognized in O`Dell v. O`Dell states that .150(h) does not explicitly state that the presumption in .150(g) can only be overcome by following a stroke intervention program: “The text of paragraph .150(h) does not clearly explain what a `negotiating parent` must do to overcome the presumption of custody.” 57 Today`s judgment was anticipated by O`Dell`s statement that “it was not an error of law [of the Supreme Court] to conclude that an anger management program that includes domestic violence counselling was lawful.” 58 Despite its finding that the transfer of custody to George was in the best interests of the children, the Supreme Court recognized that the presumption in AS 25.24.150(g) was triggered by George`s domestic violence. The Supreme Court interpreted AR 25.24.150(h) as allowing “only one way” to overcome the rebuttable presumption – the conclusion of an intervention program for thugs. Since George had never completed an intervention program for percussionists, the Supreme Court concluded that George could not refute the suspicions. The court argued that if it applied the presumption to deny custody to George, its decision would not be in the best interests of the children and, therefore, the law would likely violate George and the children`s right to due process. In order to avoid what it considered to be a constitutional weakness of the law, the Supreme Court interpreted the statutory provision in such a way that the presumption in section 150(g) could be dispelled by clear and convincing evidence that the transfer of legal and/or physical custody to the victim of domestic violence would be clearly prejudicial to the child. Applying this new standard, the court found that granting custody to Stephanie would be detrimental to Elizabeth and Brian, and awarded custody to George.
FN31. Stephanie argues that the Supreme Court clearly erred in finding that it did not link her testimony to that of her expert witness. But the Supreme Court concluded that “even assuming that all [hypothetical] events were true,” they were not persuasive because they “do not fully describe the context in which they occurred.” FN31. Stephanie argues that the Supreme Court clearly erred in finding that it did not link her testimony to that of her expert witness. But the Supreme Court concluded that “even assuming that all [hypothetical] events were true,” they were not persuasive because they “do not fully describe the context in which they occurred.” The court recognized that George`s two acts of domestic violence constituted a “history of domestic violence” under AS 25.24.150(g) and expressed its interpretation that RO 25.24.150(h) “allows only one way to overcome the presumption of custody – the offender must complete a thug intervention program.” 13 It was not disputed that George had not completed a thug intervention program and the court held that George`s twelve consultations with Turner were not a substitute for a thug intervention program within the meaning of AS 25.24.150(h). The court found that the application of the presumption in paragraph 150(g) would leave the court “with no choice” but to award Stephanie physical and legal custody, which is contrary to the best interests of the children. The higher court cited Wee v. Eggener 53 as an authority for his understanding that conducting a thug intervention program is the only way to overcome the rebuttable presumption of giving custody to a parent with a history of domestic violence. But Wee didn`t believe that a thug intervention program was the only way to overcome the hypothesis. Wee overturned the Supreme Court`s award of joint and shared legal custody because the Supreme Court “failed to consider the presumption of AS 25.24.150(g) against custody.” 54 Wee cited Puddicombe v.
Dreka 55 for the rule that “the path described in paragraphs .150(g) to (i) must be followed if a parent has a history of domestic violence”, but this only means that the rebuttable presumption cannot be ignored by the superior court; it does not support the evidence necessary to rebut the legal presumption.56 Montgomery did not make a final recommendation on custody in its July 2007 report. Because of her concern that both parties had psychological issues that could prevent them from fully meeting Elizabeth`s needs, she recommended an additional follow-up period and an updated report after George and Stephanie had the opportunity to attend counselling. Montgomery, meanwhile, recommended shared physical custody three days a week/four days a week. As Stephanie was more involved in the day-to-day care of the children at the time, the report suggested that Stephanie be placed in interim custody. In AS 25.90.010, “domestic violence” has the meaning given in AS 18.66.990. Paragraph 18.66.990(3)(E) of the OR defines “family violence” as criminal mischief. A person commits criminal wrongdoing by intentionally damaging “someone else`s property.” 36 “Property of others” is defined in AS 11.46.990 (13) as “property in which [another] person has an interest which the defendant is not entitled to infringe, whether or not the defendant also has an interest in the property”. In Hughes v. One spouse argued that he could not be convicted of criminal mischief because he and his wife were co-owners of the property he had damaged and, therefore, it was not “someone else`s property.” 37 The Court of Appeal rejected these arguments. Based on the definition of “property of others” in subsection 11.46.990(13) of Chapter 11.990(13), the Court of Appeal held that “it is legally possible for a spouse to be convicted of criminal mischief for destroying matrimonial property.” 38 We agree. Montgomery recommended that it was in the best interests of the children to return to school in Homer under George`s primary physical care.
She recommended that joint custody or George have sole custody. On December 31, 2008, the court issued a brief final custody order, granting George primary physical custody effective January 2009.11 The order was issued in time for the children to be transferred to Homer`s school before the start of the second semester. Stephanie argues that the court did not properly consider the evidence of domestic violence. She quotes Borchgrevink v. Borchgrevink27 and argues that this court recognized the “harmful effects of domestic violence on children.” She also cites a number of academic papers dealing with the negative effects of family violence on children, and Farrell v.