Custody: The custody process

Laws current as of October 2, 2024

What are the steps to file for custody?

Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.

However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.

If you decide to file in court for custody, the process usually looks similar to this:

File for custody.

You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:

If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.

The Alaska Court System’s Family Law Self-Help Center provides some information for unmarried parents filing for custody. 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.

Prepare for the custody process

The court custody process is usually very long and can be emotionally and financially draining. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section. If you are able to hire an attorney, you can use this list of questions as your guide when deciding who to hire.

During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about which parent gets custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.

Prepare for trial

There will be one or more hearings, including a trial, if the parties cannot reach an agreement by themselves or as part of a mediation process. During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.

If you are a victim of domestic violence, you can plan for your safety while in court and you should ask the judge to include some protections in the custody order. For example, you can ask for some of the following terms:

communications between the parents can only be in writing;
all communications can only be related to the child; and
a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.

You should also try to be as specific as possible in terms of the decision-making powers of each parent, who has the child on holidays, birthdays, etc., and the time and place for pick-ups and drop-offs of the child to avoid future conflicts.

Options if you lose the custody case

There could be a couple of options that are filed immediately after the judge makes the custody order:

A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to the judge’s error.

A petition to change (modify) the order is an option that would not be filed right away. You could ask for a modification if, later on, a substantial change of circumstances happens. A few examples could be if the other parent gets sent to jail, gets charged with child abuse or neglect, or moves to another state. If you are already divorced, a petition for a change in custody can be filed in the county where the divorce was issued.

To find out more about how the process works in your area, please contact a lawyer. Please visit our AK Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation and related legal concepts that a judge will consider, child support, and moving out of state with your child.

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 AK ST § 25.24.150(c)
² AK ST § 25.24.150(g)
³ AK ST § 25.24.150(h)

Will the judge give a temporary custody order?

While the custody case is going on, the judge will usually give a temporary custody order that gives the child equal access to both parents as much as is practical unless:

temporary custody would be harmful (detrimental) to your child’s welfare after considering the factors listed in How will a judge make a decision about custody?; or
the judge believes that the abuser has a history of committing domestic violence against you, your child, any other child, or a romantic partner the abuser lives with (“domestic living partner”). If the judge believes this, the abuser may not get custody unless s/he meets certain requirements. See Can a parent who committed violence get custody?¹

¹ AK ST §§ 25.20.070; 25.24.150(g)

If the judge denies your request for custody, does s/he have to explain why?

If a parent or a guardian ad litem asks for shared custody of a child and the judge denies that request, the judge will put the reasons s/he denied your request on the court record.¹

¹AK ST § 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.

In which state can I file for custody?

Under a federal law called the UCCJEA, you can generally only file for custody in the “home state” of the child. 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.

There are exceptions to the home state rule, however. 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. If you have lived in Alaska for less than six months, and you, your child, or your child’s sibling are in danger of maltreatment or abuse, see Can I get temporary emergency custody?

¹ AK ST § 25.30.300

Can I get temporary emergency custody?

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 AK ST § 25.30.330(a)

Can I get temporary custody if I have a protective order against the other parent?

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 consider your request. 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 AK ST § 18.66.100(c)(9)

I am a victim of domestic violence. Can I keep my address and phone number confidential?

If the judge believes that you are, or your child is, the victim of domestic violence, the judge can order that your or your child’s address and telephone number be kept confidential in the court case.¹

¹ AK ST § 25.20.060(d)

Legal Information: Alaska

Custody