## Facts

- Helena Mary Faro Gerlach and Robert Faro separated in 1981 and disputed custody of their daughter, Angela, during divorce proceedings.
- A court-appointed psychologist concluded both parents were fit custodians and recommended permanent custody be awarded to Gerlach.
- The parties entered a written stipulation giving Faro temporary custody pending the final divorce decree and expanding Gerlach’s visitation.
- Gerlach became concerned Faro would remove Angela from Alaska and obtained a restraining order barring him from taking the child out of state.
- About three weeks after the modified custody arrangement, Gerlach picked Angela up from a babysitter, flew with her to Washington, and concealed the child’s location for more than a year.
- Gerlach was located and arrested in Washington and was charged in Alaska with first-degree custodial interference under AS 11.41.320.
- Gerlach sought to present a necessity defense based on claimed neglect of Angela and alleged past abuse by Faro toward his other children, and based on her distrust of the custody process and financial concerns.
- The trial court ruled the offer of proof legally insufficient to raise necessity, barred the defense from the jury, and Gerlach was convicted.

## Issues

1. Whether Gerlach’s offer of proof was sufficient to require submission of a necessity defense to the jury on a charge of first-degree custodial interference.

## Decision

- The Alaska Court of Appeals affirmed the conviction.
- The court held the trial court properly ruled, as a matter of law, that the proffered evidence did not satisfy the elements of necessity.
- The court concluded Gerlach failed to show an imminent threat to Angela, failed to show the absence of adequate legal alternatives, and failed to satisfy proportionality given the prolonged concealment.

## Legal Principles

- Necessity requires proof that the defendant acted to avoid a significant evil, reasonably believed the conduct was necessary, had no adequate legal alternative, and caused no disproportionate harm relative to the harm avoided.
- The threatened harm must be imminent; generalized fears, past misconduct toward others, or concerns about a custodian’s fitness are not enough without a concrete and immediate emergency.
- Ongoing custody proceedings, protective orders, and related court processes generally constitute legal alternatives that defeat necessity, even if the defendant believes the process is slow, expensive, or unfair.
- Courts may decide pretrial that an offer of proof is insufficient as a matter of law to raise necessity and may withhold the defense from the jury.
- In custodial interference cases, removing a child across state lines and concealing the child for an extended period weighs heavily against necessity under proportionality and alternative-means requirements.

## Conclusion

The court upheld Gerlach’s custodial-interference conviction because her proposed necessity defense, even if accepted as true, did not show imminent harm, lack of adequate legal alternatives, or proportionality in light of her extended concealment of the child.


Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985)