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. (Alaska Stat. § 25.20.060 (a). This article will explain how custody decisions are made in Alaska.
Alaska judges decide custody based on what is in the child's best interest. Alaska courts do not give preference to one parent over the other because of their sex. Instead, the judge must consider all of the following factors when determining custody:
Generally, none of these factors take precedence over 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. (Alaska Stat. § 25.24.150 (g).)
Alaska courts will consider a child's preference whenever the child is old enough and mature enough to state a reasonable opinion. Courts don't have a specific age at which it must consider the child's preference, so 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 an individual 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 choice aren't mature or valid. For example, the court refused to consider a 15-year-old girl's desire to live with her mother when the judge determined that her relationship with a 20-year-old man that lived nearby was the primary reason for her preference. Judges have also refused to consider children's preferences when the court discovers the child's reason is due to a parent's discipline or monitoring.
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 custodial preference and must give both parents a summary of the interview. Some courts may also record the conversation between the judge and the child.
The law presumes that it's in the child's best interest to have a continuing and ongoing relationship with both parents. So, if the court awards physical custody to one parent, the judge will also create a visitation schedule for the non-custodial parent and the child that allows them to continue growing their relationship. If the parents can create a visitation schedule for their family, the court will approve it (as long as it's in the child's best interest.)
However, if you can't agree, the judge will decide for you. The court will evaluate each case on an individual basis. Still, it's common for the court to create a schedule that allows visitation every other weekend, half of summer vacation and school breaks, and every other holiday.
There are situations where it's not safe for a child to be alone with a parent. For example, if a noncustodial parent has a history of domestic violence or abuse, Alaska law requires the judge to order "supervised visitation," which is where the parent and child's visit takes place in the presence of an approved third-party or a state-sanctioned visitation center. The court may require the parent to attend an intervention program and parenting education class before allowing unsupervised parenting time.
If you have additional questions about the effect of children's custodial preferences or any custody-related issues, contact an Alaska family law attorney for help.