How Domestic Violence Affects Child Custody in Alaska

Domestic violence occurs in the heat of the moment, when feelings are running high. But its aftereffects are long-lasting and hurtful, and in the event of a custody battle, may also affect the judge's decision.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a family law attorney for advice.

Domestic Violence Overview

One of the most common problems with domestic violence is helping victims to understand that they've been abused and they need help. Alaska law classifies all of the following acts as domestic violence when they're committed by a household members:

• any crime against the person (like assault, kidnapping, or rape)
• burglary
• trespassing
• arson
• criminal mischief (damaging or destroying property)
• threats intended to cause terror in the victim
• violating a lawfully issued protective order, and
• harassment.

"Abuse" is a loaded word and people think it just refers to physical violence. It doesn't. Abuse includes emotional and mental cruelty, isolation from friends and family, control over finances, intimidation, and coercion (forcing someone to do something), among other things.

Another common issue is that victims wonder if they have a close enough relationship with their abuser to get legal help. Alaska law prohibits domestic violence between "household members," who are defined as:

• adults or minors who are current or former spouses
• adults or minors who live together or have lived together
• adults or minors who are dating or who have dated
• adults or minors who are engaged in or have engaged in a sexual relationship
• adults or minors who are related by blood or marriage
• people who have a child together, and
• the children of any people involved in the relationships listed above.

If you're a victim of domestic violence, you can go to court and ask for a domestic abuse protection order to protect you. To learn more, see this page, which is provided by the Alaska court system.

Community Resources

Alaska, like its sister states, has a number of organizations dedicated to helping victims of domestic violence. According to ANDVSA (the Alaska Network on Domestic Violence & Sexual Assault), Alaska has 18 domestic violence and sexual assault programs and three affiliate programs that can provide direct services like counseling and emergency housing. ANDVSA doesn't provide direct services—its mission is to work on policies and laws—but it maintains a current listing of contact information for the 18 programs and 3 affiliates that victims can contact for immediate help.

Other organizations providing information and access to resources include the Alaska Women's Network and the State of Alaska Department of Law.

Finally, victims can always call the National Domestic Violence Hotline at 1-800799-7233. It's available 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

A judge's role in a child custody dispute is to divide physical and legal custody. Physical custody refers to where the child spends time and which parent provides daily care, like feeding and bathing. Physical custody often goes to the parent who spends more time with the children, while the parent without physical custody is awarded visitation per a regular schedule. Legal custody is different. It involves a parent's right to have a voice in making major decisions for a child about things like education, medical care, and cultural and religious matters. In cases where there's been no abuse and parents are able to cooperate, normally both parents have joint (shared) legal custody.

Alaska custody law requires judges to consider a long list of different factors which, taken together, equal a child's best interests. For more information about how courts make these decisions, see Child Custody in Alaska: The Best Interests of the Child.

There is no question that incidents of domestic violence play a major role in a judge's custody decision. For instance, the court is required to consider any evidence of domestic violence, child abuse, or child neglect in the current or proposed custodial home. The judge is also supposed to take into account the ability of the parents to cooperate and encourage the child to have a relationship with the other parent except in cases where one parent has perpetrated sexual assault or domestic violence against the child or the other parent.

Alaska law also creates a "rebuttable presumption" (a legal assumption that has to be overcome with credible evidence to the contrary) that if an abusive parent has a history of committing domestic violence against the other parent, a child, or even a domestic living partner, the abusive parent must not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody. For the rebuttable presumption to apply, the judge only needs to decide that the abusive parent caused serious physical injury in one incident, or engaged in multiple incidents without causing serious injury.

Parents who have committed one or more acts of domestic violence can only overcome the rebuttable presumption by proving all of the following:

• successful completion of an intervention program for batterers
• no abuse of any substances, and
• the child's best interests require that the abusive parent have some kind of custody.

If both parents have a history of domestic violence, then the court will either:

• award sole legal and physical custody to the parent who's less likely to continue the violence, and require that parent to complete treatment and counseling, or
• if necessary to protect the child's welfare, give sole legal and physical custody to a third party (like a grandparent) who promises not to allow access to any violent parent.

Impact on Visitation

If a parent has a history of committing acts of domestic violence, the court may only allow that parent to have supervised visitation that's continuously monitored by another responsible adult. The judge also has to order the abusive parent to attend and successfully complete counseling and education.

If the violence occurred within the last five years, the judge must order:

• that the visitation exchange take place in a protected setting
• that visitation be supervised by a responsible person or agency and under conditions to be determined by the judge
• that the abusive parent complete counseling and education, and pay all costs associated with it
• that the abusive parent pay all costs associated with supervised visitation
• that there be no overnight visits
• that the perpetrator abstain from using or possessing alcohol and drugs during visits and for 24 hours before the visit
• that the perpetrator post a monetary bond to the court to ensure the child's safe return, and
• any other condition the judge thinks is necessary.

The only way the judge can allow unsupervised visitation with a perpetrating parent is if that parent can prove that it's more likely true than not that:

• the parent isn't abusing drugs or alcohol
• the parent doesn't pose a danger of mental or physical harm to the child, and
• unsupervised visitation is in the child's best interests.

The court is legally obligated to keep the address of the victim parent strictly confidential, and the court can't order a victim to attend mediation with a perpetrator unless the victim consents.

Termination of Parental Rights

The termination of parental rights means that a parent permanently loses all rights to both physical and legal custody of his or her child. Generally speaking, termination of parental rights if fairly rare, and only imposed in the most extreme cases, for example, where a parent has subjected a child to severe abuse, including abandonment, torture, chronic abuse, or sexual abuse, or has committed similar acts against the other parent.