Expansion of Appointed‐Counsel Rights: Extending Flores to Pro Bono Representation by ANDVSA

Introduction

John M. v. Michelle M. is a Supreme Court of Alaska custody dispute decided on April 16, 2025. The appeal grew out of a bitter separation and divorce in which five children were caught between their father’s self‐representation and their mother’s pro bono representation through the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA). Key issues included:

Whether the father, John M., was entitled to court‐appointed counsel under Flores v. Flores when the mother, Michelle M., was represented by pro bono counsel provided by ANDVSA;
Whether the superior court properly found acts of domestic violence by each parent and correctly applied (or declined to apply) the statutory presumptions in custody determinations;
Whether the final custody decision—granting primary physical custody to the mother, joint legal custody, and permitting her to relocate out of state—rested on adequate findings and lawful reasoning.

The Supreme Court held that the father was erroneously denied appointed counsel but that the error was harmless. It vacated and remanded the custody award for more detailed findings on domestic violence and its impact on the children’s best interests.

Summary of the Judgment

The Supreme Court’s memorandum opinion and judgment delivered three principal holdings:

Right to Appointed Counsel: Under Flores v. Flores and its progeny, a parent opposing counsel provided by a publicly funded agency (including pro bono counsel through ANDVSA) is constitutionally entitled to court‐appointed counsel. The superior court’s later withdrawal of counsel was error, though ultimately harmless in this case.
Domestic Violence Findings: The court’s finding that each parent had committed a single act of domestic violence was based in part on improper judicial notice of a DVPO. The lower court failed to make detailed findings on other contested allegations (e.g., broken trailer window, steering‐wheel incident), leaving the record insufficient for appellate review. The custody order was vacated and remanded for specific fact‐finding under AS 25.24.150.
Custody Factors and Remand: Though the court’s home‐environment and education‐needs findings were supported by the record, the absence of adequate domestic‐violence findings required reconsideration. The case was remanded for detailed findings about each alleged act of violence, application of the statutory presumptions, and a fresh custody determination in light of those findings.

Analysis

Precedents Cited

Flores v. Flores (598 P.2d 893 (Alaska 1979)): Established due‐process right to appointed counsel for indigent parents in custody disputes when the opposing parent is represented by a public agency.
Dennis O. v. Stephanie O. (393 P.3d 401 (Alaska 2017)): Clarified the standard for appointing counsel under Flores, denying appointment where the opposing parent had only private counsel.
In re Alaska Network on Domestic Violence & Sexual Assault (ANDVSA) (264 P.3d 835 (Alaska 2011)): Held that ANDVSA is a “public agency” for Flores purposes because its funding derives almost entirely from government sources.
In re Office of Public Advocacy (514 P.3d 1281 (Alaska 2022)): Extended Flores to pro bono counsel assigned by the public agency ALSC, emphasizing that volunteer and staff attorneys confer the same advantage.
F.T. v. State (862 P.2d 857 (Alaska 1993)): Held that judicial notice may be taken of court records generally, but factual findings within those records—such as contested allegations in DVPOs—cannot supply the basis for determining acts of domestic violence.

Legal Reasoning

1. Due Process and Public Agency Representation: The court reaffirmed that the core Flores principle is fairness: an unrepresented parent cannot face the same‐case disadvantage of opposing counsel provided by a government‐funded agency. Because ANDVSA’s pro bono volunteers derive from ANDVSA’s public‐funding structure, their representation triggers the same entitlement under Alaska Const. art. I, § 7.

2. Harmless Error Doctrine: Even though the superior court wrongly vacated counsel, the record showed that John M. eventually retained private counsel with ample time to prepare, and he had received trial continuances and judicial guidance throughout. John failed to demonstrate prejudice in any material respect.

3. Statutory Framework for Domestic Violence in Custody Disputes (AS 25.24.150):

History of Domestic Violence: One serious incident or more than one incident creates a rebuttable presumption against awarding custody.
Detailed Findings Requirement: Trial courts must make detailed factual findings on each alleged act—identifying dates, nature of the conduct, and credibility determinations—to allow meaningful appellate review.
Judicial Notice Limits: Court may judicially notice the existence of DVPO filings, not the underlying contested allegations. Factual findings must be supported by evidence admitted at trial.

4. Best‐Interests Analysis: While the court’s assessment of housing conditions (running water, insulation), educational needs (IEPs, counseling), and stability was supported by credible testimony, its failure to integrate clear domestic‐violence findings left a critical statutory factor inadequately addressed.

Impact

This decision has three significant ramifications:

It broadens the Flores right to appointed counsel to cover any publicly funded organization providing representation—staff or pro bono—including domestic‐violence and sexual‐assault networks.
It reinforces the requirement for meticulous fact‐finding on domestic violence in custody proceedings. Trial courts must parse each allegation, weigh credibility, and specifically apply the statutory presumptions or explain their rejection.
It reminds practitioners that harmless‐error will turn on a showing of prejudice. An indigent parent must demonstrate how lack of counsel actually skewed proceedings in order to obtain reversal or remand.

Complex Concepts Simplified

DVPO (Domestic Violence Protective Order): A civil order granting temporary or long‐term protection; cannot be used by judicial notice to prove specific violent acts without evidence.
Guardian ad Litem (GAL): An attorney appointed to represent the child’s best interests, not to aid a parent; Court Rule 90.7 strictly limits a GAL’s testimony to factual, uncontested points.
Rebuttable Presumption Against Custody: Under AS 25.24.150(g), a parent with a history of serious or repeated domestic violence is presumed unfit for custody unless the presumption is rebutted.
Harmless Error: An appellate doctrine requiring a showing that an error affected substantial rights—mere procedural missteps do not warrant reversal absent prejudice.
Due Process Right to Counsel: Alaska recognizes a constitutional right to counsel when fundamental parental liberty interests collide with unequal access to legal representation.

Conclusion

John M. v. Michelle M. clarifies and extends the Flores doctrine: any parent facing counsel from a publicly funded agency—whether paid staff or pro bono volunteer—is constitutionally entitled to appointed counsel. The decision also enforces rigorous standards for domestic‐violence findings in custody proceedings, ensuring that each contested allegation is detailed and supported by admissible evidence. Practitioners must heed both the expanded right to counsel and the heightened fact‐finding obligations to safeguard fairness and facilitate meaningful appellate review.