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.