People who haven’t been through a divorce may think of custody as a one-size-fits-all proposition: one parent gets the children and the other parent doesn’t. But that’s not the way it works. In reality, the term is more complex and is comprised of different elements, which are:
The term “legal” custody refers to the decision-making aspect of parenting, relating to subjects such as education choices, non-emergency medical care, and religious upbringing. “Physical” custody involves a determination of where the child is going to reside.
“Sole” custody and “joint” custody are actually subsets of legal and physical custody. If a court awards a parent sole legal custody, it means that parent alone has decision-making authority. An award of joint legal custody gives both parents a say in child-rearing decisions. Similarly, sole physical custody means the child lives with one parent. In a joint physical custody scenario, the child resides with each parent for certain periods. This can range from a few days a week to several months at a time.
The court’s primary concern in custody cases is the child’s best interests. This isn’t an abstract concept. Like most states, Alaska law provides a specific list of factors a judge must consider when determining “the best interests of the child.” Some of these are:
Regarding the willingness and ability of each parent to foster a continuing relationship with the other, the law imposes a caveat: the court may not consider this factor if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or child, and that a continuing relationship with the abusive parent will endanger the health or safety of either the other parent or the child.
The law also states that the fact an abused parent suffers from the effects of the abuse isn’t a basis for denying custody to that parent. The exception is where the court finds that the effects of the abuse are so severe that the abused parent can’t care for the child.
In the past, mothers were often given a preference in custody matters, particularly if the child was very young. But divorce law has evolved over the years, and now it's generally accepted that, under most circumstances, neither parent is entitled to a preference. Alaska law follows that line of thinking.
But keep in mind that the best interests of the child is the controlling factor. To that end, the law provides for a presumption that a court may not award any aspect of custody to a parent who has a history of domestic violence. A “history of domestic violence” exists if, during an incident of domestic violence, a parent caused serious physical injury or, that parent engaged in more than one incident of domestic violence.
Regarding joint custody, it’s important to note that if a court awards this, it doesn’t necessarily mean both parents will have legal custody and physical custody. Joint legal custody can be fairly easy to facilitate. Parents don’t have to live near each other to make the important decisions regarding their children. Joint physical custody, however, can be more problematic. In fact, at least three of the factors a judge must weigh in deciding on joint custody directly relate to where the parents live. They are:
If granting joint physical custody is going to mean uprooting a child for long stretches of time, a court may have real reservations. This is particularly true when children are of school age, and changing residences could impact their education, friendships, and social activities, like sports or music lessons. In the end, a judge’s decision is going to depend on the circumstances of each case and the child’s best interests.
Alaska law also states that if a parent seeks to share custody, and the court denies the request, the court has to specifically state the reasons why it refused the application.
During the time a child resides with one parent, the other parent usually has visitation (parenting time) rights. Typically, the where and when of visitation depends on the facts of each case. Ideally, the arrangement will reasonably accommodate the parents’ and children’s schedules.
Situations arise where being alone with a parent could endanger a child. In these cases, the judge will almost invariably order “supervised” visitation. This means that the visitation must take place in the presence of a third party. There are often state-sanctioned agencies that provide facilities and personnel to conduct these visits. Sometimes, the court might permit a family member or friend to oversee visitation. This may occur when the parent has a drug or alcohol problem, but isn't violent.
Under Alaska law, when a parent has a history of domestic violence, the court can only order supervised visitation, conditioned on that parent participating in and successfully completing a domestic violence intervention program and, if reasonably available, a parenting education program.
In order to ultimately get unsupervised visitation, abusive parents must prove to the court that they have completed a substance abuse treatment program (if the court considers it appropriate), aren’t abusing alcohol or psychoactive drugs, don’t pose a danger of mental or physical harm to the child, and that unsupervised visitation is in the child's best interests.
To learn more about the complex issues of custody and parenting time, consult with a local family law attorney.