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Alaska Custody Laws

Legal Custody and Physical Custody in Alaska

There are two types of custody in Alaska custody cases determined by the court. The first is what is called “legal custody” and the second is “physical custody”.

Legal custody is defined as the right to make important decisions about the child(ren) including, legal, medical, educational, and religious decisions. The court has a preference for legal custody to be shared by the parents unless the parents are unable to cooperate and communicate on such matters.

Physical custody is the actual physical care and control of the child, and is typically calculated by the number of overnights the child spends with each parent. There are three different types of physical custody, primary physical custody, shared physical custody, and hybrid physical custody. The number of overnights the child spends with each parent becomes important during any child support calculation.

Alaska physical custody decisions are based upon what the court calls “the best interests of the child”. “The best interests of the child” are legal factors denoted in AS 25.24.150(c).

The Alaska custody best interest factors are as follows:

(1) the physical, emotional, mental, religious, and social needs of the child;

(2) the capability and desire of each parent to meet these needs;

(3) the child’s preference if the child is of sufficient age and capacity to form a preference;

(4) the love and affection existing between the child and each parent;

(5) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

(6) the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;

(7) any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;

(8) evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;

(9) other factors that the court considers pertinent.

Alaska custody decisions assume at the outset that both parents are entitled to equal access to the child. While that is not always a workable solution because of the parties’ schedules, equal access is what the Alaska Court begins with absent circumstances discussed below.

Child Custody, Domestic Violence & Substance Abuse in Alaska

Alaska custody cases involving domestic violence or substance abuse sometimes involve special laws. There is what is called the “rebuttable presumption” in custody cases that any parent who has committed one serious incident or two stand-alone incidents of domestic violence is not permitted to have unsupervised visitation with the child(ren) absent special circumstances.

The rebuttable presumption against a parent who is accused of domestic violence can be overcome in a number of ways. Typically, that parent will enroll in what is called the Domestic Violence Intervention Program or other similar anger management or treatment. Or, the court may make findings that despite the findings of domestic violence, and absent substance abuse, it is in the child’s best interests for that parent to have unsupervised visitation.

In Alaska custody cases involving substance abuse, sometimes the court will order a parent to undergo substance abuse treatment and order only supervised visitation until treatment is complete, or the court finds that the parent’s substance abuse does not impact the best interests of the child(ren) and may allow unsupervised visitation. 

Supervised Visitation in Alaska Custody Cases

As noted above, the court will sometimes order what is called supervised visits for one parent. Supervised visits mean that the parent cannot be alone with the child without another person, either approved by the parties or the court, that supervises visits with the child(ren). The court orders supervised visits in order to maintain the parent’s rights as well as protect the child from any perceived harm from that parent. The court may order supervised visits for a short or extended period of time depending on the circumstances of the particular case. Even with supervised visits, sometimes the parent may have the child for overnight visits.

Interim Custody in Alaska

If you do not have an existing custody order in place, upon application from a party, and after you file a complaint for custody, the court will enter what is called interim custody of the child(ren). Interim custody is a temporary custody order that determines who has time with the child(ren) and when during the time the case is active in front of the court.

Custody Order After Trial or Agreement in Alaska

There are many ways to resolve custody disputes outside of going to trial, called alternative dispute resolution. There are numerous resources available for parties to mediate, negotiate, or settle their custody cases in Alaska. Mediation and settlement conferences are available through the court system as well as private entities that specialize in custody cases. Often, parties wish to settle their dispute through mediation or settlement conferences as those hearings are confidential and not open to the public.

Once the parties either come to an agreement or the judge decides custody after trial, the court will enter a decree of custody as well as findings of fact and conclusions of law. Those documents dictate custody of the child(ren).

The court will then enter a final child support order based upon the parties’ income as well as number of overnights with the child(ren).

Modification of Custody

Even after the court has entered its final custody order, the parties may come back to court and request a modification of that order based upon a material change in circumstances.

There are many ways to have a material change in circumstances and are often case specific. However, the most common material change in circumstances are; relocation out of state or relocation in state to a distant community, new allegations of domestic violence or substance abuse, and serious and consistent failures to abide by the existing custody order.

Alaska Custody Lawyer

The Law Office of Evan Barrickman, P.C. is an experienced Alaska custody lawyer and handles Alaska custody cases at any stage of litigation or post decree. Contact the Law Office of Evan Barrickman, P.C. today for a consultation.

Alaska Electronic Monitoring

CREDIT FOR TIME ON ELECTRONIC MONITORING PRIOR TO CONVICTION

Alaska Now Allows Credit for Time Spent on Electronic Monitoring Prior to Conviction

In August 2015, the State of Alaska recently enacted legislation enabling persons convicted of crimes to get credit for time served on electronic monitoring as part of a bail condition. Stated basically, you may qualify to have the time you spent on EM applied to your current sentence.

The law is also retroactive, meaning that it can be applied to persons who are currently serving time in custody or on the Department of Corrections Electronic Monitoring program and were convicted prior to August 2015.

There are certain limitations under the statute based upon the restrictions placed upon the person while on pre-conviction electronic monitoring, thus it does not apply to everyone who was on electronic monitoring prior to conviction.

Contact the Law Office of Evan Barrickman, P.C. to find out if you qualify to have credit applied to your sentence for time served on electronic monitoring or EM prior to conviction in Alaska. The Law Office of Evan Barrickman represents clients in all stages of criminal cases including applying for and receiving credit for time served on EM in Alaska. Please call us today to schedule a consultation.

Domestic Violence Protective Orders in Alaska

DOMESTIC VIOLENCE RESTRAINING ORDERS

Alaska allows victims of domestic violence to apply for and receive both short-term and long-term domestic violence restraining orders or protective orders. The short-term order is typically for 20 days and a long-term order is typically for a period of 1 year.

In order to get a domestic violence restraining order in Alaska the party that committed the violence must be what the law defines as a “household member” of the party filing for a restraining order. Household members include, former and current spouses, parties that live together or have lived together in the past, anyone in a current or former dating or sexual relationship, blood relatives, parties related in anyway by marriage, and minor children of any person described previously.

Acts of domestic violence are broadly defined in Alaska and include any crime against a person (murder, manslaughter, criminally negligent homicide, assault, reckless endangerment, stalking, kidnapping, custodial interference, human trafficking, sexual assault, sexual abuse of a minor, incest, enticement/exploitation of a minor, indecent exposure, robbery, extortion, coercion), burglary, criminal trespass, arson or criminally negligent burning, criminal mischief (destruction of property), terroristic threats, violating an existing protective order, and harassment (telephone calls meant to impair ability to make calls, repeated calls at inconvenient hours, anonymous or obscene telephone calls or electronic communication (email), or telephone calls or electronic communications that threaten physical injury or sexual contact.)

WHAT DOES A PROTECTIVE ORDER DO?

There are many remedies available from the court if you file for a protective order and it is granted. The available remedies are:

(1) prohibit the respondent from threatening to commit or committing domestic violence, stalking, or harassment;

(2) prohibit the respondent from telephoning, contacting, or otherwise communicating directly or indirectly with the petitioner;

(3) remove and exclude the respondent from the residence of the petitioner, regardless of ownership of the residence;

(4) direct the respondent to stay away from the residence, school, or place of employment of the petitioner or any specified place frequented by the petitioner or any designated household member;

(5) prohibit the respondent from entering a propelled vehicle in the possession of or occupied by the petitioner;
(6) prohibit the respondent from using or possessing a deadly weapon if the court finds the respondent was in the actual possession of or used a weapon during the commission of domestic violence;

(7) direct the respondent to surrender any firearm owned or possessed by the respondent if the court finds that the respondent was in the actual possession of or used a firearm during the commission of the domestic violence;

(8) request a peace officer to accompany the petitioner to the petitioner’s residence to ensure that the petitioner
(A) safely obtains possession of the petitioner’s residence, vehicle, or personal items; and
(B) is able to safely remove a vehicle or personal items from the petitioner’s residence;

(9) award temporary custody of a minor child to the petitioner and may arrange for visitation with a minor child if the safety of the child and the petitioner can be protected; if visitation is allowed, the court may order visitation under the conditions provided in AS 25.20.061;

(10) give the petitioner possession and use of a vehicle and other essential personal items, regardless of ownership of the items;

(11) prohibit the respondent from consuming controlled substances;

(12) require the respondent to pay support for the petitioner or a minor child in the care of the petitioner if there is an independent legal obligation of the respondent to support the petitioner or child;

(13) require the respondent to reimburse the petitioner or other person for expenses associated with the domestic violence, including medical expenses, counseling, shelter, and repair or replacement of damaged property;

(14) require the respondent to pay costs and fees incurred by the petitioner in bringing the action under this chapter;

(15) order the respondent, at the respondent’s expense, to participate in (A) a program for the rehabilitation of perpetrators of domestic violence that meets the standards set by, and that is approved by, the Department of Corrections under AS 44.28.020(b), or (B) treatment for the abuse of alcohol or controlled substances, or both; a protective order under this section may not require a respondent to participate in a program for the rehabilitation of perpetrators of domestic violence unless the program meets the standards set by, and that is approved by, the Department of Corrections under AS 44.28.020(b);

(16) order other relief the court determines necessary to protect the petitioner or any household member.
The court typically will request from the filing party the relief they want in the protective order and the orders can vary in restrictions. If you are contemplating filing for a domestic violence restraining order, you should speak with an attorney prior to filing.

HOW TO GET A RESTRAINING ORDER OR PROTECTIVE ORDER IN ALASKA?

If you believe that you have been the victim of domestic violence and wish to seek a protective order preventing someone from having contact with you or your child or ward, you need to file the appropriate paperwork with your local court.

If you are located in Anchorage, the Boney courthouse located at 303 K Street, Anchorage, Alaska 99501 has an office on the first floor that deals with domestic violence restraining orders in Anchorage.

If you live in a community different than Anchorage, check with your local clerk’s office to see how they accept domestic violence filings.

Also, the Alaska court system has forms available online, including petitions for restraining orders. The website is: http://www.courts.alaska.gov/forms/. The petitions for a domestic violence protective order are numbered DV-100 & 127(multiple petitioners) http://www.courtrecords.alaska.gov/webdocs/forms/dv-100-127-one.pdf & http://www.courtrecords.alaska.gov/webdocs/forms/dv-100-127-multi.pdf.

I’VE JUST BEEN SERVED WITH A PROTECTIVE ORDER, WHAT DO I DO?

If you have been served with a domestic violence protective order in Alaska, you need to note the restrictions placed upon you in the order. If you fail to abide by the terms of the order, you may face criminal charges and a violation of that order is also considered a crime of domestic violence, which is a valid basis for the court to issue a long-term order.

You are strongly advised to contact an attorney immediately once you have been served with a domestic violence restraining order.

Do not ignore the order thinking it will just go away. The court most likely scheduled a long-term hearing, which is usually at least 10 days after the issuance of the short-term order. The long-term hearing is where you will be able to present you side of the story regarding what is alleged in the petition that was filed against you. If you ignore the order and fail to appear at the long-term hearing, the court will most likely issue a long-term protective order against you.

If you wait until just a few days before the scheduled hearing to talk to an attorney you are placing yourself at a disadvantage. Further, if you also have a pending criminal charge related to the domestic violence restraining order, you need to contact an attorney immediately. If you appear and testify at the long-term hearing, you are placing yourself at risk for incriminating yourself at further criminal proceedings.

CONSEQUENCES OF A DOMESTIC VIOLENCE PROTECTIVE ORDER IN ALASKA

There are many consequences associated with a protective order in Alaska. If you find yourself in the unfortunate circumstances where you were served with a protective order, you should contact an attorney immediately.

If the court grants a long-term order against you, there is the possibility that under federal law you will lose your firearm rights. That includes possession and purchase of firearms for life. See 18 U.S.C. 922(g) also known as the Lautenberg Amendments. Similarly, if you are in a branch of the armed forces or involved in law enforcement, you may face discharge or other negative employment consequences.

If you have an existing custody case in Alaska or elsewhere, whether it is open or closed, a long-term restraining order most likely will have negative impacts in your custody case including, but not limited to, preventing you from seeing your child(ren) or restricting you to supervised visitation. Also, a finding of domestic violence is grounds for modification of an existing custody order in Alaska.

Many employers also look negatively on domestic violence restraining orders and have terminated employees because of protective orders or refused to hire based upon previous domestic violence protective orders in Alaska.

These are some examples of the collateral consequences of a domestic violence protective order in Alaska but it is not meant to be a complete list. You are strongly encouraged to contact an experienced Alaska domestic violence attorney as soon as possible if you have been served with a domestic violence protective order.

If you are contemplating filing a domestic violence protective order in Alaska or if you have been served with a domestic violence protective order, you should consult with an attorney as soon as possible. The Law Office of Evan Barrickman, P.C. has litigated domestic violence protective orders in Anchorage as well as other communities in Alaska representing both petitioners and respondents. Contact an experienced and aggressive domestic violence attorney, the Law Office of Evan Barrickman, P.C.

Alaska Divorce Basics

Divorce and Property Division in Alaska

Food Alaska divorce lawyers will know that divorce should be differentiated from child custody issues in Alaska. While custody cases may be determined in a divorce case, the two are entirely different. Divorce severs the matrimonial bonds between the parties and otherwise determines the division of marital assets and debts that were obtained during the marriage.

It should be noted that Alaska is what is called a “no fault” state, meaning that the court in most circumstances will not take into consideration what caused the divorce when dividing the property.

Equitable Distribution of Property

The court divides property in a divorce case in Alaska under a three-step process called the Wanberg analysis. The first step is the court identifies marital property and debt; the second step is the court values the property and the third step the court equitably divides the property. The equitable distribution of property is based upon Alaska state law under AS 25.24.160(a)(4) that states:

(4) for the division between the parties of their property, including retirement benefits, whether joint or separate, acquired only during marriage, in a just manner and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property, including retirement benefits, of either spouse acquired before marriage when the balancing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of their real or personal property, including retirement benefits, to the other party; the division of property must fairly allocate the economic effect of divorce by being based on consideration of the following factors:

(A) the length of the marriage and station in life of the parties during the marriage;

(B) the age and health of the parties;

(C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;

(D) the financial condition of the parties, including the availability and cost of health insurance;

(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;

(F) the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of children;

(G) the circumstances and necessities of each party;

(H) the time and manner of acquisition of the property in question; and

(I) the income-producing capacity of the property and the value of the property at the time of division.

Property Subject to Division in a Divorce

Essentially all property and debt that was obtained during the marriage is subject to distribution by the court upon divorce in Alaska. There are few exceptions. The property subject to distribution in an divorce in Alaska includes but is not limited to; the marital home, earnings by either spouse during the marriage, retirement contributions, pensions, businesses, lawsuit recoveries encompassing lost wages, cashable vacation or sick leave, and frequent flier miles, among others.

The only property that is obtained during the marriage that is typically not subject to distribution are gifts to one spouse, and inheritance to one spouse. However, the court may “invade” that property or property obtained before or after the marriage in order to have an “equitable distribution”.

Alaska divorce property division cases can be very complex and complicated depending on the facts of each particular case. It is highly recommended that you hire an experienced Alaska divorce attorney to handle your divorce case. That is especially true when parties have significant assets as your rights to that property need to be protected.

The Life-Cycle of a Divorce Case

Alaska divorce cases are initiated by filing a complaint for divorce with the Alaska court in your jurisdiction. Once the divorce is filed, the court issues what is called the “Initial Pretrial Order” that prevents the parties from dissipating marital assets or otherwise cancelling insurance policies in place.

Once the case is filed, a party may move for interim support, which compels that party to pay to the other interim child support, spousal support, or both, as well as interim attorney’s fees. Interim support is an important tool that can be used to ease the transition in your divorce case, especially where the party is forced to move out of the marital home or one party is economically disadvantaged and cannot afford an attorney.

There is significant discovery that takes place in divorce cases. Discovery are mandatory disclosures to the other party of your financial condition including wages, health care, assets, retirement and bank accounts, insurance, among other disclosures. It is very important to comply with the mandatory disclosures in your Alaska divorce case as a failure to do so may result in sanctions and attorney’s fees for the other party.

Eventually, the parties will either schedule a formal trial in front of the divorce judge or go to mediation or settlement conference. Mediation and settlement conferences are an ideal way for the parties to address their property issues confidentially and come to an agreement. Should the parties fail to agree, there will be a divorce trial where the court will decide how to divide the parties’ property.

If the parties settle their divorce, or the court decides, the court will issue a decree of divorce and findings of fact and conclusions of law. Those documents determine the final outcome of the property distribution.

Alimony in Alaska Divorce Cases

Alimony tends to be the exception and not the rule in divorce cases in Alaska. And, the Alaska divorce courts prefer to divide property unequally in lieu of alimony. That being said, there are legal requirements set forth by Alaska law for alimony under AS 25.24.160(a)(2):

(A) the length of the marriage and station in life of the parties during the marriage;

(B) the age and health of the parties;

(C) the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;

(D) the financial condition of the parties, including the availability and cost of health insurance;

(E) the conduct of the parties, including whether there has been unreasonable depletion of marital assets;

(F) the division of property under (4) of this subsection; and

(G) other factors the court determines to be relevant in each individual case;

There are three different types of alimony that Alaska divorce courts consider. Those three different types of alimony are, Rehabilitative Alimony, Reorientation Alimony, and Permanent Alimony.

Rehabilitative Alimony is temporary payments made by one spouse to the other in order for that spouse to obtain marketable job skills to increase their earning capacity in the future. For instance, one party may be required to pay for a bachelor’s degree for the other, or to pay for technical school in order to learn a trade. Rehabilitative Alimony is only paid for a specific purpose and will terminate should the spouse obtaining the alimony fail to complete or enroll in the program.

Reorientation Alimony or Transitional Alimony allows the “disadvantaged spouse” to transition form their current financial position to a reduced financial position over time. The “disadvantaged spouse” typically has a lower earning capacity than the other spouse paying the alimony.

Permanent Alimony is permanent payments from one spouse to the other for support. Permanent Alimony is rare in Alaska divorce cases and typically ceases upon the remarriage of the receiving spouse.

Attorney’s Fees in Alaska Divorce Cases

Alaska allows for the award of some or all of a parties’ attorney’s fees and costs in divorce cases. The court makes attorney’s fee awards based upon the economic circumstances of the parties during the divorce. If one party is in a weaker economic state than the other, the court is more likely to award attorney’s fees.

The Alaska Divorce lawyers at the Law Office of Evan Barrickman, P.C. handle Alaska divorce cases across the state. Contact the Law Office of Evan Barrickman, P.C. today for a consultation.