General information and definitions
What is custody?
Custody is the physical care and supervision of a child under 18.
What is joint custody?
Joint legal custody is when both parents have equal rights and responsibilities for major decisions concerning the child, including the education of the child, health care, and religious training. The court may also give one parent the ability to make certain decisions on her own (“sole power”) while both parents have equal rights and responsibilities for other decisions.
What is joint physical custody?
Joint physical custody is when both parents share the physical care and supervision of the child so that the child can spend frequent and quality time with both parents. This does not necessarily mean that the parents see the child for equal amounts of time. Joint physical custody in Alaska is when neither parent has the child for more than 70% of the child’s time during a one year period.
Should I start a court case to ask for supervised visits?
If you are not comfortable with the abuser being alone with your child, you might be thinking about asking the judge to order that visits with your child be supervised. If you are already in court because the abuser filed for visitation or custody, you may not have much to lose by asking that the visits be supervised if you can present a valid reason for your request (although this may depend on your situation).
However, if there is no current court case, please get legal advice BEFORE you start a court case to ask for supervised visits. We strongly recommend that you talk to an attorney who specializes in custody matters to find out what you would have to prove to get the visits supervised and how long supervised visits would last, based on the facts of your case.
In the majority of cases, supervised visits are only a temporary measure. Although the exact visitation order will vary by state, county, or judge, the judge might order a professional to observe the other parent on a certain amount of visits or the visits might be supervised by a relative for a certain amount of time – and if there are no obvious problems, the visits may likely become unsupervised. Oftentimes, at the end of a case, the other parent ends up with more frequent and/ or longer visits than s/he had before you went into court or even some form of custody.
In some cases, to protect your child from immediate danger by the abuser, starting a case to ask for custody and supervised visits is appropriate. To find out what may be best in your situation, please go to AK Finding a Lawyer to seek out legal advice.
Who can get custody and visitation
Who is entitled to custody?
The judge will generally give custody to whoever s/he thinks will be able to serve the best interests of the child. This might be one of the child’s parents or someone else with a significant connection to the child. Preference for custody, however, is given to biological parents. For a non-parent to get custody, s/he must prove that the biological parents are unfit or, if the judge believes that both parents have a history of domestic violence against each other, the judge could give custody to a non-parent.1 Neither parent is automatically entitled to preference in the awarding of custody, whether or not the parents were married.2
Although the courts try to make sure the child has frequent and continuing contact with both parents, the judge will take domestic violence into consideration when making a decision about custody.3 There is a presumption (assumption) that a parent who has a history of committing domestic violence against the other parent, a child, or a domestic partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child. This presumption, however, can be overcome if the abusive parent complies with certain requirements.4
Also, the fact that an abused parent suffers from the effects of the abuse is not a reason to deny custody to the abused parent unless the court finds that the effects of the domestic violence are so severe that the parent is unable to safely parent the child.5
Note: If a parent is deployed into the military, s/he may have the option of delegating (giving) his/her custody/visitation rights to a family member. See Can a parent who is deployed give his/her visitation rights to a family member?
1 Alaska Statute § 25.24.150(i)(2)
2 Alaska Statute § 25.20.060
3 Alaska Statute § 25.24.150(c)(7)
4 Alaska Statute § 25.24.150(g) & (h)
5 Alaska Statute § 25.24.150(k)
Can a parent who committed violence get custody or visitation?
Under Alaska law, there is a presumption against giving sole or shared legal or physical custody to a parent who has committed one act of domestic violence involving serious physical injury or more than one act of domestic violence (with or without causing injury). However, the abusive parent can overcome this presumption by showing that he has completed a batterers’ intervention program, does not abuse drugs/alcohol, and that the best interests of the child require the abusive parent’s participation due to the other parent being absent, mentally ill, or a drug user.1
If the presumption is not overcome, then the court should allow only supervised visitation by that parent with the child, conditioned on that parent’s participating in and successfully completing an intervention program for batterers, and a parenting education program, where reasonably available. However, the court may allow unsupervised visitation if it is proven that the violent parent has completed a substance abuse treatment program (if appropriate), is not abusing alcohol or drugs, does not pose a danger of mental or physical harm to the child, and unsupervised visitation is in the child’s best interests.2
If there has only been one act of domestic violence that did not involve serious physical injury, it could still be a factor for the judge to consider but the abusive parent might be able to get custody.
1Alaska Statute § 25.24.150(h)
2 Alaska Statute § 25.24.150(j); see § 25.20.061 for more restrictions that can be placed on the parent with visitation
I am the child's grandparent. Can I file for visitation of the child?
Maybe. If you file for visitation before there was ever a court case for custody of the child, you may get visitation if you have established or attempted to establish ongoing personal contact with the child and the visitation is in the child’s best interest.1
If you file for visitation after there has already been a final custody/adoption order issued by the court regarding the child, you can file for visitation only if:
- you did not request visitation from the court during the custody/adoption case; or
- there has been a change in circumstances relating to the custodial parent or the child that justifies reconsideration of the your visitation rights.2
If your child has a history of domestic violence with the other parent or a history of child abuse, this will be taken into account when the judge decides whether to give you visitation rights and what the terms and conditions of the visitation will be.3
1 Alaska Statute § 25.20.065(a)
2 Alaska Statute § 25.20.065(b)
3 Alaska Statute § 25.20.065(c)
I am the child's uncle/aunt/cousin/etc. Can I file for visitation of the child?
Perhaps. Although the law does not specifically mention visitation rights for aunts, uncles, cousins, etc. in a custody case, the law does permit visitation rights for a grandparent or “other person” if it is in the best interests of the child.1 If you want to know more about this, please contact your local legal aid provider, a lawyer, or one of the resource centers listed on our Places that Help tab on this page.
1 Alaska Statute § 25.20.060
Can a parent who does not have custody have access to the child's records?
Yes. A parent who does not have custody has the same access to the medical, dental, school, and other records of the child as the custodial parent.1 Therefore, if for safety purposes, you are trying to keep your address confidential from the abuser, you might want to ask the child’s school, doctor, etc. if you can use a relative’s address or if you can list your address as a P.O. Box.
1 Alaska Statute § 25.20.130
The custody process
How will a judge make a decision about custody?
The judge will look at many things to decide what is in the best interest of the child. If you are filing for custody, you should be prepared with as much information as possible about the other parent, the child, and yourself. Here are some things a judge will look at when determining what is in the “best interest” of the child:
- the physical, emotional, mental, religious, and social needs of the child and whether or not the parent has the desire and ability to meet those needs;
- what the child wants, if s/he is old enough and mature enough to give an opinion;
- the love and affection existing between the child and each parent;
- the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining that same situation;
- the desire and ability of each parent to allow a close and continuing relationship between the child and the other parent. Note: The judge cannot consider this if one parent shows that the other parent has sexually assaulted or committed 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 parent or the child;
- any evidence of domestic violence, child abuse, or child neglect in the house where the child would live or a history of violence between the parents;
- evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child; and
- other factors that the judge thinks are important.1
There is a presumption (assumption) that a parent who has a history of committing domestic violence against the other parent, a child, or a domestic partner may not be awarded sole or joint legal custody or sole or joint physical custody. This presumption, however, can be rebutted (overcome).2
Also, the fact that an abused parent suffers from the effects of the abuse is not a reason to deny custody to the abused parent unless the judge finds that the effects of the domestic violence are so severe that the parent is unable to safely parent the child.3
1 Alaska Statute § 25.24.150(c)
2 Alaska Statute § 25.24.150(g)
3 Alaska Statute § 25.24.150(h)
If a court denies a request for custody, do they have to explain why?
If a parent or guardian ad litem asks for shared custody of a child and the court denies that request, the judge will put the reasons s/he denied your request on the court record.1
1Alaska Statute § 25.20.100
Do I need a lawyer?
A person can file for custody without a lawyer but it is usually best to have the help of a lawyer. The information we provide here should get you started and help you with basic questions you might have. However, custody issues are complicated and frequently need the help of a lawyer. For a list of legal resources, please see our AK Finding a Lawyer page.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Where can I file for child custody? (Which state has jurisdiction?)
Jurisdiction refers to which court has the power to hear a case, and custody jurisdiction is state law. However, most states (if not all) have adopted one of two laws: either the Uniform Child Custody Jurisdiction Act (UCCJA), or the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Alaska has adopted the UCCJEA, which we explain here.
Under the UCCJEA, you can generally only file for custody in the “home state” of the child. (There are exceptions to the “home state” rule – see next section.)
The “home state” is the state where the child has lived with a parent, or a person acting as a parent, for at least six consecutive months. If the child is less than six months old, the “home state” is the state where the child has lived from birth. (Temporarily going out of the state does not change anything.)
If you and your child recently moved to a new state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, a custody case can be started in the state that the child last lived in for at least six months.
Example: If a family lives in state A for one year, state A is the home state. If the mom and kids then move to state B, state A is still the home state for the next 6 months, if one parent continues to live in State A.
There are exceptions to the home state rule. In some cases, you can file for custody in a state where the children and at least one parent have “significant connections.” Usually, however, you can only do this if there is no home state or if the home state has agreed to let another state have jurisdiction.1 This can be complicated, and if you think this applies to your situation, please talk to a lawyer in both states about this. For a list of legal resources, please see our Finding A Lawyer page under the Places that Help tab.
If you have lived in Alaska for less than six months, see Can I get temporary emergency custody?
1Alaska Stat. § 25.30.300
Can I change the state where the case is being heard?
Maybe. If you move to another state, you may be able to change the state where the custody case is being heard. You will have to ask the judge that is hearing the case to change the jurisdiction of your case. This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this.
Can I get temporary emergency custody?
Maybe. This is a complicated area of the law, relating to the UCCJEA. You can file for temporary emergency custody in Alaska even if it is not the home state if the child is in the state and one of the following is true:
- the child has been abandoned or
- emergency custody is necessary to protect the child because the child or a sibling or parent of the child is has been mistreated or abused or has been threatened with mistreatment or abuse.2
However, you should know that once the court finds that there is no longer an emergency, it may transfer custody back to the home state.
If you want to know more about temporary emergency custody, please contact your local legal aid provider, a lawyer, or one of the resource centers listed on our AK Finding a Lawyer page.
1 Alaska Statute § 25.30.330(a)
Can I get temporary custody if I have a protective order against the other parent?
Maybe. If you get a protective order due to domestic violence, the order may include temporary custody and/or temporary visitation rights for children. Be sure to tell the judge that you want custody during your protective order hearing so that the judge can take your request into consideration. Custody granted with that protective order expires with that order. Alaska’s long term protective orders are good for one year so that is how long the custody provisions would last. The judge may extend a temporary order if s/he feels it is necessary.1
1 Alaska Statute § 18.66.100(c)(9)
What are the steps for filing for custody?
The specific steps for filing for custody vary, depending on your particular situation. The Alaska Court System’s Family Law Self Help Center provides some information.
If you are going to file for custody without an attorney, you can obtain some of the forms by going to our AK Download Court Forms page or the Filing for Child Custody section of the Alaska Court System’s Self Help Center.
Custody matters are often complicated and if you can have a lawyer draft the paperwork for you and represent you in court, it might make the process much easier for you. For information on finding a lawyer, see our AK Finding a Lawyer page.
After an order is in place
If a custody order is already in place, how can I get it changed?
Because custody is decided in the best interest of the child, an order is never permanent. If you have a custody order already in place, you can petition the court to make changes to it or modify it.
Custody or visitation can be changed if the court determines that there has been a change in circumstances that requires modifying (changing) the order and the modification (change) is in the child’s best interests.1 A crime involving domestic violence is considered to be a “change in circumstances.”2 Also, a parent’s temporary duty, recruitment, or deployment to military service could be the reason to temporarily modify an order.3 To read more about situations involving military deployment, go to Can a parent modify a custody order because of military service.
When deciding whether to modify (change) the custody order, the judge should consider the history of the parents’ child support payments. However, the court may consider a parent’s failure to pay child support only if the parent had actual knowledge of the amount of the child support s/he was required to pay and had the money available for payment of support or the parent could have gotten the money through “reasonable efforts.”4
To change a custody order, you will usually need to go to the court that issued the order, even if you have moved. Alaska will generally keep jurisdiction (power) over a custody order that was made in an Alaska court unless neither of the parents and the child continue to live in Alaska or Alaska no longer has significant connections with evidence about the child. Under certain circumstances, Alaska may have the power to modify an out-of-state custody order if the state that issued the original order agrees to give power to Alaska and if other certain requirements are met.5 Since the requirements are complicated, to find out more about this (and all custody issues), we recommend you talk to a lawyer. Go to the AK Finding a Lawyer page to find a list of legal resources in Alaska.
1 Alaska Statute § 25.20.110(a)
2 Alaska Statute § 25.20.110(c)
3 Alaska Statute § 25.20.110(e)
4 Alaska Statute § 25.20.110(b)
5 See Alaska Statute § 25.30.320 & § 25.20.300
Can I get support for myself and my children?
As part of a protective order, the judge can require the respondent (the abuser) to pay support for you or a child in your care if he has a legal relationship to you and/or the child.1
While a divorce proceeding is going on, a judge can award “reasonable” spousal maintenance, including medical expenses and “reasonable” support for minor children in your care.2
Even if you are not going through a divorce, state law says that a judge should make a child support order whenever the court makes a custody order.
The amount of child support ordered is based on the custody arrangement and the child support guidelines, which are found in a document called “Civil Rule 90.3”. The general percentages for child support are 20% of net income for one child, 27% for two and 33% for three.
In order to modify (change) a child support order, there must be either a 15% change in income or a change in the parenting plan that affects the formula used to calculate the support.3
1 Alaska Statute §18.66.100(c)(12)
2 Alaska Statute § 25.24.140(a)(2) & (3)
3 See Alaska Courts website
If there is a custody order in place, can I take my kids out of the state?
Whether or not you can take your child out of state may depend on what the custody order says. If a custody case is pending, but there is no order, generally the “standing order” in the case will prohibit either parent from removing the children from the state of Alaska without the permission of the other parent or a court order. If you have a custody order and you are not sure if it allows you to take your children out of state, it is a good idea to show the order to a lawyer and see what the lawyer’s advice is. To find a lawyer near you, go to our AK Finding a Lawyer page.
Military deployment and custody/visitation
Can a parent modify a custody order because of military service?
If one parent is deployed, a judge can temporarily modify (change) a custody or visitation order to account for the parent’s relocation or absence.1 In the temporary custody order, the judge should:
- Arrange for custody or reasonable visitation during the deployed parent’s leave period (if it’s in the child’s best interest);
- Explain in the order that the temporary order will terminate (end) and the parents will go back to the terms of the original, permanent custody order within 10 days after the deployed parent notifies the court/ other parent that s/he can resume custody or visitation (unless the non-deployed parent can prove to the judge that the terms of the original, permanent order are no longer in the child’s best interest. See more information at What if I feel it is unsafe to go back to the original custody order?
- Arrange for immediate notification by each parent of any change of address or contact information to the other parent and to the court (unless due to domestic violence, the abused parent’s address must be kept confidential – in that case, it would only be given to the court, not the other parent);
- Let another family member of the deployed parent use his/her visitation rights (called “delegation” of visitation) under an existing order, but only under certain circumstances. See Can a parent who is deployed give his/her visitation rights to a family member?
1 Alaska Statute § 25.20.110(e)
Will a parent's military deployment be held against him/her? How else does it affect custody/visitation?
No. A parent’s temporary duty, mobilization, or deployment to military service and the temporary disruption to the child that results from it are not supposed to affect the judge’s decision to grant or deny a petition for custody or visitation. If a parent is deployed or in a position where the parent may be deployed, the judge is supposed to take particular care to ensure that the child has the maximum opportunity to have contact with the parent (if it is in the child’s best interest).1
The court order that is written must require that:
- the non-deployed parent make the child reasonably available for visitation to the deployed parent when the deployed parent is on leave (if the visits are in the child’s best interest);
- each parent help to arrange contact (by phone, email, video-chat, etc.) between the other parent and the child (if the contact is in the child’s best interest);
- the deployed parent provide timely information to the non-deployed parent regarding the deployed parent’s leave schedule; and
- each parent provide immediate notification of a change of address or contact information unless this information is to be kept confidential due to domestic violence.2
Note: When the deployed parent files a petition for custody or visitation, s/he may include a request to give his/her visitation rights to a family member to use instead.3 See Can a parent who is deployed give his/her visitation rights to a family member?
1 Alaska Statute § 25.20.095(a)
2 Alaska Statute § 25.20.095(f)
3 Alaska Statute § 25.20.095(c),(g)
If a temporary modification is made to a custody order because of military duty, what happens when the parent returns?
Within 10 days of the deployed parent notifying the other parent/ court that s/he can resume custody or visitation, the temporary, modified custody order will no longer be in effect and the parents will go back to the terms of the original, permanent custody order unless the judge believes it is not in the child’s best interest to go back to the original order. Note: It would be up to the non-deployed parent to prove that resuming the terms of the original custody or visitation order is not in the best interest of the child.1
If the deployed parent has been moved out of state and the non-deployed parent believes that going back to the original, permanent custody order will result in immediate danger or severe harm to the child or there has been domestic violence, the non-deployed parent can file a motion (legal papers) in court. The judge must arrange for a hearing on this issue.2
1 Alaska Statute § 25.20.110(e)(2)
2 Alaska Statute § 25.20.110(e)(3)
What if I feel it is unsafe to go back to the original custody order?
If the deployed parent has been moved out of state and the non-deployed parent files a motion (legal papers) claiming that going back to the original, permanent custody order will result in immediate danger of severe harm to the child or that there has been domestic violence, the judge must arrange for a hearing on this issue.1
1 Alaska Statute § 25.20.110(e)(3)
Can a parent who is deployed give his/her visitation rights to a family member?
Yes, possibly. When a parent who is deployed files a petition for custody or visitation, s/he may include a request to delegate (give) his/her visitation rights to a family member to use instead. The judge should allow the family member to use the visitation rights only if:
- the family member has an existing close relationship to the child; and
- it is in the child’s best interest.
However, if the family member wanting visitation has a history of domestic violence against a spouse, a child, or a domestic living partner, or lives with someone who does, then the judge has to assume that the family member cannot use the visitation (although the family member can present evidence to try to change the judge’s mind about this).1
1 Alaska Statute § 25.24.150(c),(g)