1. Basics: Nuts and Bolts of Child Custody Senior Staff Attorney, ANDVSA
Katy Soden
Senior Staff Attorney, ANDVSA

2. What we talk about when we talk about “permanent” custody
Legal
Physical
Joint
(Presumption: ; Farrell v. Farrell 1991)
Shared
70/30
Sole
Primary

3. Physical Custody Child’s residence Types of Physical Custody
Primary w/Visitation Rights
Child spends more than 70% of time with one parent
Shared
Child spends 30-70% of time with each parent
30% of year =110 overnights
70/30 definition comes from Civil Rule 90.3

4. Legal Custody Decision-making authority
Ex: education, religion, medical, etc.
Types of Legal Custody
Sole: one parent makes all decisions
Joint: parents must decide together
If parents cannot agree, court will make decision
Sometimes one parent may be given the final say

5. Will shared legal work? Can the parents communicate?
Joint legal custody is only appropriate when the parents can cooperate and communicate in the child’s best interest. See Collier v. Harris, 261 P.3d 397, 405 (Alaska 2011).

6. How We Get There Procedurally
Divorce case (AS )
Custody case (AS )
Protective order proceeding (AS et seq.)
Temporary custody for 1 year

7. Timeline within a case Complaint / Answer Trial scheduling Discovery
Interim orders hearing
Final trial

8. FOCUSING ON THE BIG ISSUE:
CHILD CUSTODY & THE BEST INTEREST FACTORS

9. General Ideas About the Factors
No factor more important than any other
No “tender years” doctrine favoring maternal custody for young children. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977)
Generally, no “primary caretaker” rule in Alaska
Evidence of the lifestyle, character or habits of parents only relevant as they affect the person’s relationship to the child

10. Custody Factors Under AS 25.24.150(c)
(i) Physical, emotional, mental, religious, and social needs of the child
(ii) Capability and desire of each parent to meet those needs

11. More Custody Factors
(iii) Child’s preference if the child is of sufficient age and capacity to form a preference
(iv) Love and affection existing between the child and each parent

12. More Custody Factors
(v) Length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity

13. More Custody Factors
(vi) Desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent – i.e., the “friendly parent” factor

14. Friendly parent exception: The court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child.

15. The DV Factor
(vii) Any evidence of DV, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents
Remember to keep the focus on the children’s best interests
Educate court about detrimental effects of DV on children.
Expert testimony
Case law (Borchgrevink v. Borchgrevink, 941 P.2d 132 (Alaska 1997))

16. Sexual Abuse Allegations
Child should have a forensic exam at a Child Advocacy Center
Therapy for the child?
These cases should be approached cautiously
Expert testimony may be necessary depending on the results of the exam

17. The Final Two Factors
(viii) Evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child
(ix) Other factors that the court considers pertinent

18. Examples of “Other Factors”
Keep siblings together. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973); McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).
Mental health issues of a parent

19. Applying the Factors Custody cases are fact-intensive
Each factor important
Each factor must be factually developed

20. Domestic Violence Rebuttable Presumption
AS (g)-(k) creates a “rebuttable presumption” that a parent who has a “history of domestic violence” should not be given sole/joint legal or primary/shared physical custody of a child.

21. “History of Domestic Violence”
One incident of domestic violence that caused serious physical injury
More than one incident of domestic violence

22. Serious Physical Injury
Defined in AS (b)(56)
Caused by an act performed under circumstances that create a substantial risk of death; or
Causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy

23. More Than One Incident of DV
“Crimes of domestic violence” as defined in AS (3)
Preponderance of evidence standard
Collateral estoppel effect
Prior convictions for DV
Guilty pleas
No contest pleas
Sometimes contested DVPO findings

24. In which scenario would a judge most likely apply the rebuttable presumption?
Rich controls all the money in the family. He never lets Ann go anywhere without him. One time he said he would kill her and no one would ever find her body.
Rich punched Ann in the face leaving a bruise that went away after a few days.
While outside, Rich pushed Ann backwards into the garage door. Then he punched out the passenger window in their car.
Rich stabs Ann in the leg with a knife, leaving a permanent scar.

25. To “Rebut” the Presumption the Batterer Must Show by a Preponderance of the Evidence:
Successfully completed a batterer’s program or whatever program the court orders them to (if a program is “reasonably available”);
Does not engage in substance abuse; OR
Awarding custody to the batterer is in the child’s best interests. See Stephanie F. v. George C. and Weinberger v. Weinmeister.

26. If They Don’t “Rebut” the Presumption
Court can only give supervised visitation AND only if they participate in a batterer’s program and a parenting program
Unsupervised visitation may only be allowed if the batterer has completed a substance abuse program, is not abusing substances, does not pose a danger of mental or physical harm to the child, and “best interests” require it.

27. If Both Parents have a History of Domestic Violence
Custody to the parent less likely to continue violence
Custodial parent does treatment program
If neither parent is fit, can give child to a third party

28. Visitation
Presumed that unsupervised visits are in child’s best interests
May be overcome by showing risk of abduction. Monette v. Hoff, 958 P.2d 434 (Alaska 1998)
Or application of the DV presumption

29. Possible Limits on Visitation
Transfer in a protected setting
Supervised; offender pays cost
Counseling or rehabilitation program
Drug and alcohol-free
No overnight visits
Offender pays bond to court
Any other necessary condition

30. Note on failure to permit visitation
Damages for failure to permit visitation. AS
Make motion in custody case
Up to $200 in damages for each willful and unexcused missed visit

31. What if a custodial parent wants to move?
Watch out for custodial interference where parties have equal right to custody of the child. AS ; Strother v. State, 891 P.2d 214 (Alaska App. 1995); Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996).

32. Relocation Caselaw in Alaska
If parent wants to relocate, court will look at whether reason for move is legitimate. “A proposed move is legitimate if it ‘was not primarily motivated by a desire to make visitation…more difficult.’” Moeller Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001).
Court cannot use move as a “negative” best interests factor.

33. Third Party Custody
Parents favored over non-parents in custody case. Buness v. Gillen, 781 P.2d 985 (Alaska 1989). Unfitness of bio parent must be proven by clear and convincing evidence.

34. Grandparent Visitation
Grandparents may petition for visitation. AS
Standard: Grandparent (or other third party) seeking court ordered visitation must prove by clear and convincing evidence that it is detrimental to the child to limit visitation with the third party to what the child’s otherwise fit parents have determined to be reasonable. Ross v. Bauman, 353 P.3d 816 (Alaska 2015).

35. Safety Plan at Every Level
Pleadings
AS (d) allows confidentiality of addresses/phone numbers for parent/child if DV involved
Direction to Seal Affidavit – re Child Custody Jurisdiction Affidavit
Service
Visitation

36. Custody and Visitation is ALWAYS Modifiable!
Must show that there has been a substantial change in circumstances
And that the modification is in the child’s best interests (going back through the factors)
Lesser standard on change of circumstances for visitation versus custody

37. QUESTIONS?