Red Elk v. McBride, 344 P.3d 818

Background

Mother (McBride) lives in Homer, Alaska; father (Red Elk) lives on the Fort Peck Indian Reservation in Montana. Child (Vera) born 2010. Parents’ relationship deteriorated after birth amid allegations of controlling behavior and threatening messages by Red Elk; mother obtained a protective order.
Red Elk filed two emergency custody petitions in Fort Peck tribal court alleging neglect; both petitions were dismissed for lack of jurisdiction or as an inconvenient forum. McBride filed for custody in Alaska; the superior court denied Red Elk’s motion to defer.
At the Alaska bench trial, the court found communication and cooperation between the parents impossible and awarded McBride sole legal custody and primary physical custody.
The superior court ordered unsupervised visitation for Red Elk but restricted all visitation on the reservation until Vera turned eight and imposed a tiered visitation schedule (increasing visits as the child ages), with Red Elk required to satisfy each tier before advancing.
The court allocated all transportation/visitation expenses to Red Elk (including escort costs until Vera can fly unaccompanied or turns 12); it also ordered McBride to teach Vera about her Sioux heritage with Red Elk allowed to supplement.
On appeal the Alaska Supreme Court affirmed denial of leave to amend and the sole-legal-custody award, but reversed and remanded the visitation schedule and expense allocation for inadequate findings and failure to consider relevant evidence.

Issues

Issue	Red Elk (Plaintiff) Argument	McBride (Defendant) Argument	Held
Denial of leave to amend pleadings	Amendment sought late; would cure jurisdictional/venue defenses; should be allowed	Late amendment prejudices McBride; trial imminent	Denial affirmed — late motion after multiple counsel changes and near trial was prejudicial; no abuse of discretion
Legal custody (sole vs. joint)	Seeks shared legal custody; claims court erred and misweighed age difference	Sole legal custody appropriate because parents cannot cooperate/communicate	Affirmed — court found meaningful cooperation not possible; differences in outlook supported sole legal custody; ordering mother to provide cultural education was permissible
Visitation schedule (tiered; no reservation visits until age 8)	Schedule is prohibitively expensive, effectively penalizes him for tribal filings, and prevents cultural contact	Restrictions justified by father’s history of making exaggerated/false abuse claims and risk he’d seek tribal emergency custody	Reversed/remanded — court failed to make adequate findings about whether father’s tribal allegations were made in good faith or supported by evidence; additional factfinding or evidence required before penalizing litigation conduct
Allocation of visitation expenses	Allocation to father is unfair and unaffordable; court failed to analyze finances/costs	Father’s travel is primary expense because visits are in Alaska and father lives on the reservation	Reversed/remanded — court did not apply Rule 90.3(g) or make findings on affordability or reasonableness; must allocate costs "just and proper" on remand

Key Cases Cited

Limeres v. Limeres, 320 P.3d 291 (Alaska 2014) (standard of review for custody matters and trial court discretion)
Stephanie W. v. Maxwell V., 274 P.3d 1185 (Alaska 2012) (a parent’s allegations made in good faith should not be penalized in custody decisions)
Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014) (court may consider allegations not made in good faith when supported by evidence)
Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013) (allocation of visitation expenses under Alaska R. Civ. P. 90.3(g) requires explanation)
James R. v. Kylie R., 320 P.3d 273 (Alaska 2014) (litigation conduct and unsupported allegations can factor into custody/willingness-to-foster analysis when supported by evidence)
In re Adoption of Sara J., 123 P.3d 1017 (Alaska 2005) (non‑Native parent may nevertheless provide cultural education for an Indian child)