Gerlach v. State
In Gerlach v. State, 699 P.2d 358 (Alaska App. 1985) the defendant argued that her custodial interference (hiding her daughter out of state for a year) was justified by her fear that her estranged husband was neglecting and psychologically abusing (and potentially physically abusing) the child.
The Court ruled that the defendant had not presented "some evidence" to show that she reasonably believed she had no adequate alternatives because she had not exhausted the remedies available to her through the courts; for instance, if she believed her daughter was in imminent danger, she could have sought temporary custody instead of stipulating to her estranged husband's continued custody.
The Court concluded that: "Where the legislature has established procedures ... for investigating and preventing child abuse and neglect, a person cannot be permitted to ignore those procedures and rely on self-help simply because he or she distrusts lawyers, judges, and social workers."
The Court held that a parent charged with custodial interference for stealing a child and fleeing the state could not raise a defense of "necessity" based on the parent's fear that the child faced neglect or physical abuse in the other parent's home.
In Gerlach, the Court upheld the trial judge's refusal to allow the defendant to offer testimony on this point because the Court concluded (1) that the defendant had an adequate remedy at law, without resorting to self-help, and (2) generally speaking, the legislature had not intended for defendants to be able to raise a defense of necessity when they were charged with custodial interference.
In Gerlach, the Court suggested that a defendant who reasonably perceived an imminent threat to a child's safety might be justified in temporarily withholding the child from a custodian, but for no longer than was necessary to seek medical or legal advice, or alert the authorities to the perceived danger, or deliver the child to the authorities.
The Court held that the defense of necessity is not available to parents who abscond with a child, leave the state, and hide the child for months.
In Gerlach, the Court upheld a trial judge who precluded the defendant from testifying about her reasons for abducting her daughter and holding her for twelve months. The Court ruled that the trial judge properly prevented Gerlach from testifying about these matters because Gerlach's proposed testimony was relevant only to the defense of necessity, a defense that was not legally available to her.