NATIVE LAW
Supreme Court of Alaska (2024)
Ryan Ciemny
In O’Brien v Delaplain, 2024 WL 4312649 (Alaska Sept. 27, 2024), the supreme court held that the superior court can exercise its discretion in conducting custody interviews with children via videoconference and that the court properly determined the custody action was a “foster care placement” under the Indian Child Welfare Act (ICWA), which applies to private custody disputes. (Id. at 7, 10). O’Brien is the mother of Eliza and Ben, who she left in Canada for two years under the care of her brother Delaplain while she pursued a romantic interest in Oregon and struggled with substance abuse. (Id. at 1). Ben is an Indian child as defined in the ICWA. (Id. at 1). Delaplain and his wife made many efforts to keep O’Brien in the children’s lives including attempts to setup family counseling, weekly video chats, and offers to pay for visits to Canada. (Id. at 13). O’Brien sought to have the children returned to Juneau and following a custody trial, the superior court granted legal and physical custody to Delaplain because it was in the best interest of the children. (Id. at 4). On appeal, O’Brien argued that the use of videoconferencing to interview the children was an abuse of discretion because the court could not ensure that the children’s answers were uninfluenced. (Id. at 7). In affirming the lower court’s decision, the supreme court reasoned that while judges usually conduct interviews with the children in their chambers, Eliza and Ben were located in a different country and thus videoconference was reasonable. (Id.). The court also reasoned that the risk of infringing on the parent’s due process rights is mitigated by providing both parties with a summary of the information from the interview. (Id.). O’Brien also argued that the lower court erred by determining that the custody action was a “foster care placement” under ICWA because no Provincial, State, or Tribal authority sought a foster placement. (Id. at 10). The supreme court affirmed the lower court’s determination, confirming that the ICWA applies to private disputes over children’s custody in addition to disputes with nonfamily public and private agencies. (Id.). Affirming the lower court’s decision, the supreme court held that the superior court can exercise its discretion in conducting custody interviews with children via videoconference and that the court properly determined the custody action was a “foster care placement” under the ICWA, which applies to private custody disputes. (Id. at 7, 10).
