Common Questions About Child Custody
FAQs About Child Custody
- How do I go about getting custody, and what papers do I need to file?
If there is a dispute about who should have custody of the children, or how to handle each parent's time with the children, you will need to file for custody. The Family Law Self Help Center provides instructions and forms on how to request a custody order. Until there is a Court order saying otherwise, both parents are presumed to have equal rights to their children. This means that neither parent can prevent the other parent from seeing their children, regardless of the status of the parents' relationship with one another.
After filing for custody, the other parent will be given a chance to answer and let the judge know what custody order they want. The judge will then schedule a trial, and ultimately make a decision after considering what is in the best interests of the children at issue. If one or both parents have a history of domestic violence, the Court applies additional rules meant to protect the children against the violence.
- Where am I supposed to file for custody?
Custody cases must be handled in the child's home state. A home state is legally defined as the state where the child has lived for at least the last six months.
If your child has not lived in Alaska for six months, you either need to wait to file, or file for custody in the state they previously resided in. Even if you are waiting to file in Alaska, there is nothing preventing the other parent from filing in the child's home state in the meantime.
If your ex has left state with the child, and you want custody to be handled in Alaska, you will need to file for custody before the child has been gone for 6 months.
Every state has different laws on custody and child support. If your custody dispute ends up being handled in another state, the court will follow the laws of that state, not Alaska, when making custody decisions.
- How can I keep the other parent away from my children?
Alaska law presumes that children should have equal access to both parents. Before a custody order is issued, neither parent has a right to keep the other parent away from the children. Even if one parent is ultimately granted primary custody, the Court will be very concerned with ensuring there is regular visitation between the other parent and the children.
Alaska law does not allow the court to terminate one parent's rights in a custody proceeding. The Court can, however, restrict access to the children if there is a serious safety concern, usually involving domestic violence or substance abuse. Depending on the level of safety concern, the Judge can order:
- Supervised visitation. This can mean supervised by a professional, such as the child's counselor, a relative, such as a grandparent, or in a public setting, such as a restaurant or library.
- Substance abuse testing. A judge can order that a parent not use substances prior to or during visitation with the children. If there is a concern that the parent will not comply, the judge can order the parent provide a clean urinalysis, breathalizer, or hair follicle test immediately prior to or after any visitation with the children.
- Batterer's Intervention, Substance Abuse Treatment, Parenting Classes, or Counseling. These requirements can be put in place to ensure that the offending parent is addressing their issues before being allowed access to the children.
- My trial isn't scheduled for a year! Who has custody between then and now?
Unfortuantely, the Court system is very busy, and has to give priority to criminal trials. This sometimes means that it can take a year or more before your custody case will get to trial.
If you and the other parent cannot work out how to handle custody in the meantime, you need to file a Motion for Interim Custody. The other parent will have a chance to respond to your motion. The judge will likely schedule a short hearing of 1-2 hours before making a temporary custody order.
This custody order will only last until the judge issues a final custody decree.
- What if I want to move out of state?
As soon as a custody complaint is filed, the Court will issue a standing order prohibiting either parent from removing the child from Alaska without permission from the Court or the other parent.
If you would like to move out of state with your children, you will need to get the other parent's consent, or file a Motion with the Court, requesting permission to relocate with the children.
It is important that you do not simply leave state with the children - even on vacation - while there is a case pending. Doing so could be considered custodial intereference, which is a crime of domestic violence in Alaska. You could face criminal prosecution, or lose custody of your children.
- What if my ex and I agree on how we want custody to be handled? Do we still need to go to trial?
Absolutely not! If you and the other parent are in agreement about how to handle custody, visitation, and support, you are not required to ask for court intervention.
However, unless your agreement is signed by a judge, it is not enforceable. This means that even though you are in agreement now, if the other parent changes their mind later on, you cannot enforce the original terms. In these cases it is best to file a Parenting Agreement with the Court.
The Alaska Court System provides a very detailed Model Parenting Agreement that covers a wide range of potential co-parenting situations from a child's birth through teenage years. You can use this as a template, or craft something unique to your family's needs.
- What do I need to do to modify my custody order?
To request a custody modification, you need file a Motion to Modify Custody with the Court that made your original custody determination.
- How do I get custody back from my ex?
If one parent has custody under a court order, the Court will only consider modifying the original custody order if there has been a "substantial change in circumstances." Substantial changes in circumstance include, but are not limited to:
- Domestic violence in either parent's household;
- Substance abuse in either parent's household;
- Either parent's planned relocation; or
- An out-of-date custody order that is not compatible with the child's current age and lifestyle. (Note: This does NOT mean you can get a new custody order after every birthday! If, however, you have a custody order based on your child being an infant, it may not be workable once your child enrolls in school.)
If the Court previously made findings that you were a perpetrator of domestic violence, you will only be able to request a custody modification if you can rebut the presumption by showing:
- Completion of a batterer's intervention program or equivalent;
- That the custodial parent is absent, or otherwise unable to parent the children; and
- That it is in the best interests of the children to be placed in your custody, despite your history.
- Can custody be decided in Tribal Court?
Yes, if the children and parents are members of a Tribe, and that Tribe has an active Tribal Court.
- What is the difference between legal and physical custody?
Legal custody is the right to make legal decisions on behalf of your child, such as where to go to school and what doctor to see.
Physical custody is actual physical possession of the child.
Even when one parent has primary physical custody of a child, the Court may order shared legal custody. This means that both parents will have a say in issues such as schooling and medical care, regardless of who has the child with them at any given time.