House v. House

RABINO WITZ, Justice,

with whom MATTHEWS, Chief Justice, joins, dissenting.

Study of the record leads me to the conclusion that the superior court abused its *1210discretion in denying Patricia House’s motion for a continuance.1 In my opinion the superior court’s denial of the motion substantially prejudiced Patricia in that it deprived her of the ability to present her case as a parent in regard to these very important child custody and visitation issues.2

Of controlling significance here is the circumstance that a pro se litigant was apprised by the superior court’s pre-trial order that “No hearing ... shall be calendared or heard, absent emergency circumstances or other justification, until completion of the [child custody investigator’s] investigation.” Because of the superior court’s denial of a continuance, Patricia was compelled to participate in the custody hearing without the benefit of having had the opportunity to study the recommendation of the child custody investigator. No emergency circumstance or other justification appears in this record which would warrant the superior court’s proceeding with the hearing prior to the completion of the child custody investigator’s investigation and the filing of her report.

The record indicates that Patrick intended to leave Alaska for California as soon as possible after the end of the summer visitation period for Patricia. The visitation period was to end by July 4. The hearing was held on June 22. Assuming that the child custody investigator would have still completed her investigation on June 22 even had the hearing not been scheduled for that day (thus making the calendaring of a hearing timely as of that day), there was still sufficient time to provide Patricia with a copy of the report and permit her a week or ten days to prepare for the hearing before the end of her visitation period.

Contrary to the majority’s assertion, Patricia did not have from May 3 to June 22 to pursue psychiatric or psychological examinations of the children. Patricia was not waiting for the child custody investigator’s “approval” to have herself and her children examined by a psychiatrist or psychologist at her own expense. Patricia was waiting for the custody investigator’s decision as to whether or not to request that such examinations be conducted (presumably at the state’s expense).3 Patricia states that she was told on June 2 that the child custody investigator would let her know by June 16 whether she would recommend the examinations. The custody investigator testified that she had no recollection of calling Patricia or promising to do so, but acknowledged that an error as to this matter on her part or Patricia's part (or both) was plausible.

Adequate preparation for a custody hearing is a sufficiently difficult task for a pro se litigant without the extraordinary, complicating factor of requiring the pro se litigant to prepare her case at the custody hearing. In the case at bar Patricia lacked funds to hire an expert. Nor was she-given the time to hire one even if she had the funds. Also, given the time constraints which were imposed on her by the denial of the motion for a continuance, Patricia was hampered in her ability to prepare an effective cross-examination of the child custody investigator.4

*1211Given the foregoing I would reverse the superior court’s judgment and remand for a full hearing.

. Patricia, acting pro se, based her motion for continuance on the following grounds: (1) discovery was incomplete, as she had not been given access to the children’s school records; (2) psychological examinations of Patricia, Patrick, Patrick’s present wife, and the children had not been conducted; and (3) the child custody investigator’s report had not been completed, and she wanted 10 days to review the report. Patricia’s motion was made on June 21. The hearing was scheduled for the following day— June 22.

. Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973).

. The record suggests that Patricia had no money of her own to pay for such examinations.

.Patricia’s description of the proceedings is forcefully described as follows:

In this case, no time was allowed for discovery; an incomplete investigation was conducted; no witnesses were allowed to be called; the children’s preference was not inquired into even though one child desired to remain in Alaska; and there was obvious visitation problems as Patricia had to file a Motion to Compel summer visitation since Patrick was denying visitation.... Even though a hearing was held, it plainly did not comport with due process, and was a far cry from a full and fair hearing.