If you're a parent facing divorce, or you were never married to your child's other parent, you'll have to tackle a lot of issues, including where your child will live and how much time each parent will spend with your child. Even if you divorced or separated years ago, you might need to change your current custody agreement. Here's how Alaska law deals with child custody matters.
There are two types of custody in Alaska: legal and physical.
Legal custody involves the parents' rights to make major decisions about a child's upbringing, such as where the child goes to school, which doctors the child goes to, and whether the child participates in religious activities. (Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).)
Physical custody refers to the parents' rights and responsibilities to provide physical care and immediate supervision of the child. (Co v. Matson, 313 P.3d 521 (Alaska 2013).)
Alaska recognizes two types of physical custody: primary and shared.
Although the parents may have shared legal custody but not shared physical custody, the reverse is not true. When a judge awards the parents shared physical custody, they will also have joint legal custody. So Alaska courts and laws often simply use the term "shared custody" (or "joint custody"), which means the parents share both legal and physical custody.
(Alaska R. Civ. Proc. § 90.3(f) (2024); Bell v. Bell, 794 P.2d 97 (Alaska 1990).)
You and your co-parent always have the option of agreeing on how you'll handle parental responsibility and parenting time after you separate or divorce. And if you're having trouble settling your differences, custody mediation could help.
In fact, the judge may order the two of you to participate in mediation if you haven't reached an agreement by the time you file for divorce in Alaska (or file any petition concerning child custody). Under Alaska law, the judge may order one or both parties to pay for the mediation. But when parents use Alaska's parenting plan dispute resolution program, the court system will pay for a certain number of hours—so it will be free unless the parents want additional time. (Alaska Stat. § 25.20.080 (2024).)
If you're able to reach an agreement, either on your own or with a mediator's help, you'll need to put it in writing, sign it, and submit it to the court. At the final hearing in your case, the judge will review your agreement and ask you some questions about it. As long as the agreement is in your child's best interests, the judge will usually approve it and make it part of an official court order.
If you and your co-parent haven't agreed on custody (or you've agreed but one of you has a change of heart), one of you may ask for a trial so that the judge can evaluate the evidence and make a decision for you.
Under Alaska law, neither parent is entitled to a preference in a judge's decisions about custody. Instead, the judge determine which parenting arrangements would be in the child's best interests. When making that decision, the judge must consider all of the relevant circumstances that affect the child's well-being, including:
Alaska law also sets out a list of factors that judges must consider when they're deciding whether it would be a child's best interests to award the parents shared custody—which is intended to allow the child as much contact with both parents as possible. Some of these factors overlap with the considerations that must go into all custody decisions (discussed above). But the additional factors for shared custody decisions include:
Also, although the law doesn't specifically require both parents to agree to joint custody, Alaska's courts have found that cooperation between the parents is "essential" for the arrangement to be in the child's best interests. (Alaska Stat. §§ 25.20.060(c), 25.20.090 (2024); McClain v. McClain, 716 P.2d 381 (Alaska 1986).)
If a parent has a history of committing domestic violence (against the other parent, a child, or another partner the parent lives with), Alaska law presumes that parent should not have sole or joint custody, whether legal or physical. However, the presumption is "rebuttable," meaning that a parent may be able to overcome it with credible evidence.
If both parents have a history of domestic violence, the judge will either:
Alaska law presumes that it's in the child's best interests to have an ongoing relationship with both parents. So even when one parent has sole physical custody, the judge will also create a parenting time (visitation) schedule to allow the noncustodial parent to see the child. But when a parent has a history of committing domestic violence, the judge will impose visitation restrictions. Usually, the judge will allow only supervised visitation (meaning that another responsible adult will be present during the visits), with the additional condition that the parent successfully complete a batterers' intervention program and a parenting education program.
However, the judge may allow unsupervised visitation if it would be in the child's best interests and the violent parent:
(Alaska Stat. § 25.24.150(g), (i), (j) (2024).)
If you want to change your existing child custody or visitation order, you must meet two conditions:
(Alaska Stat. § 25.20.110 (2024); Maxwell v. Maxwell, 37 P.3d 424 (Alaska 2001).)
Alaska law provides a few general rules on what qualifies as a change of circumstances in certain situations.
In other circumstances, whether you've met the changed-circumstances requirement will depend on the specifics of your situation. For instance, the other parent's alleged violations of your custody order may qualify, but only if those violations were continuous, repeated, or egregious. Also, when a parent is requesting a modification of visitation only, the change in circumstances doesn't need to be quite as substantial as is required for a request to modify custody.
(Alaska Stat. § 25.20.110 (2024); Judd v. Burns, 397 P.3d 331 (Alaska 2017); Acevedo v. Liberty, 956 P.2d 455 (Alaska 1998); Collier v. Harris, 261 P.3d 397 (Alaska 2011).)
In most states, parents' histories of paying (or not paying) child support aren't a part of custody decisions. Under Alaska law, however, judges must consider that history when deciding whether to modify custody or visitation. But the judge may consider a parent's failure to pay child support only if that parent knew about the child support order and could have gotten the money to pay through "reasonable efforts." (Alaska Stat. § 25.20.110(b) (2024).)
Although grandparents are often important people in a child's life, they're not automatically entitled to visitation with their grandchild. If there isn't an order dealing with the child's custody, Alaska law allows grandparents to petition for reasonable visitation with their grandchild if:
If there's already a custody order (such as after the parents' divorce), grandparents may request visitation if they didn't already do so while the divorce or other custody case was still going on. Otherwise, the grandparents must show there's been a change in circumstances related to the custodial parent that would justify reconsideration of the grandparents' visitation rights.
Despite these rules for requesting visitation, Alaska's court have held that grandparents' rights to visit their grandchildren are secondary to parents' rights to make decisions about their children's upbringing, including whom they visit and interact with. So if grandparents want court-ordered visitation over the objection of a child's fit parent, the grandparents must prove, by clear and convincing evidence, that the parent's limitations on that visitation are detrimental to the child—meaning that the child would suffer injury or damage as a result.
(Alaska Stat. § 25.20.065(a) (2024), Christy v. Conrad, 524 P.2d 231 (Alaska 2023).)
Alaska's Family Law Self-Help Center provides a lot of resources for parents, including:
If you and your child's other parent continue to disagree about custody—even after trying mediation—you might want to speak with a lawyer. An experienced family law attorney can evaluate your situation, help you negotiate a settlement from a position of strength, and protect your parental rights as well as your child's welfare.