Gerlach v. State

When they divorced, Helena Gerlach (defendant) and Robert Faro contested custody of their daughter, Angela. Faro was originally married to Gerlach’s half-sister and had custody of their children. A court-appointed psychologist who interviewed Gerlach and Faro recommended that Angela remain with Gerlach. But Gerlach stipulated to Faro’s keeping temporary custody until the final divorce was entered, and the same judge who awarded Faro custody in his first divorce authorized the agreement. Concerned Faro would take Angela out of Alaska, Gerlach obtained a restraining order to prevent him from doing so. But three weeks later, Gerlach picked up Angela from Faro’s babysitter, flew to Washington, and hid Angela for over a year. Gerlach asserted necessity in defense to the resulting custodial-interference charges. Before trial, Gerlach made an offer of proof that described evidence showing Faro posed a threat of imminent harm that justified hiding Angela. Gerlach planned to testify that Faro did not take proper care of Angela and was abusive. Faro’s first wife and son would have corroborated that testimony, and the court-appointed psychologist would have said he recommended Angela stay with Gerlach. But the judge found Gerlach’s offer of proof insufficient and entered a protective order preventing her from raising the necessity defense at trial. Gerlach was convicted of custodial interference and appealed, arguing the judge should have allowed her necessity defense.