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.