Can Children Express Preference in Alaska Custody Proceedings?

Can children make custodial decisions in divorce proceedings? Find out more.

Separating parents often have strong opinions about who should have custody of the children, but children also generally want to have a say about where they live. Many states, including Alaska, require judges to consider a child’s preference when determining custody.

This article will explain how a child’s preference affects custody in Alaska. If you have additional questions about the effect of a child’s custodial preference in Alaska after reading this article, you should consult a local family law attorney.

Overview of Custody Decisions in Alaska

Alaska judges decide custody based on what is in the child’s best interest. Courts must consider all of the following factors when determining custody:

  • the child’s physical, emotional, mental, religious, and social needs
  • each parent’s ability to meet the child’s various needs
  • the child’s relationship with each parent
  • the stability of the child’s current home environment
  • each parent’s willingness to encourage a close relationship between the child and the other parent
  • either parent’s history of domestic violence or sexual assault
  • the effect of other people living in either parent’s household
  • the substance abuse history of anyone living in either parent’s household
  • the child’s preference, if the child is of sufficient age and ability to form an opinion, and
  • any other factors the court believes affect the child’s well-being.

Generally, none of these factors take precedence over the others. The exception is when a parent has a history of domestic violence against the other parent or the child; the court will presume that the child is better off with the non-violent parent unless proven otherwise. To read more information about custody decisions in Alaska, see Child Custody in Alaska: The Best Interests of the Child.

When Will the Court Consider a Child’s Preference?

Alaska courts will consider a child’s preference whenever the child is old enough and mature enough to state a reasonable opinion. Judges don’t have a specific age at which the child's opinion must be considered; each judge must make an individual determination for each child.

The courts will generally give greater weight to an older child’s preference and less weight to a younger child’s opinion. Some Alaska judges believe that parents can more easily influence a younger child’s decision, while a mature teenager will generally form his or her own opinion.

When the child is mature enough and states a valid reason for wanting to live with a parent, courts tend to follow the child’s request. The court is likely to overrule the child’s decision only if the judge thinks that it would be detrimental to the child's well being to live with the selected parent.

The court can ignore a child’s preference if the reasons for the preference aren’t mature or valid. For example, the court refused to consider a 15 year-old girl’s preference to live with her mother when the judge determined that it was largely influenced by her relationship with a 20 year-old man that lived nearby. Judges have also refused to consider children’s preferences when they are based on things such as avoiding discipline or monitoring by a parent.

Do Children Have to Testify About Their Custodial Preferences in Court?

Alaska courts are sensitive to the fact that it may be difficult for children to state custodial preferences in front of their parents. The judge has the power to appoint a custody investigator to speak with the child directly and report anything relevant to the custody decision, including the child’s opinion on custody.

Alternatively, the court may interview the child outside the presence of the parents. The judge is limited to only asking the child about his or her custodial preference and must give both parents a summary of what was discussed in the interview. Some courts may also record the conversation between the judge and child.

If you have additional questions about the effect of children’s custodial preferences, contact an Alaska family law attorney for help.

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