How Domestic Violence Impacts a Custody Dispute
FAQ about Custody when there has been Domestic Violence
My former partner was very abusive, is he or she going to be able to get custody of our children?
In Alaska, custody is determined by either "the best interests of the child" or "the domestic violence presumption."
The domestic violence presumption states that if the Court finds that one parent is a perpetrator of domestic violence, they are prohibitted from having custody of the children, and will be restricted to supervised visitation until they complete a batterer's intervention program, and, if ordered, substance abuse treamtment and a parenting class.
How do I convince the judge that my partner was violent?
You will be given the opportunity to testify, call witnesses, and provide evidence before the judge makes any decisions about custody.
- You can testify about the violence you suffered.
- Friends, family members, and coworkers can testify about incidents they witnessed or overheard, or injuries they saw. Though it is very common to try to hide the signs of abuse, very few people are as successfull as they think they are. Ask your loved ones if they remember anything that could be helpful to a judge.
- Your children's teachers can testify about their interactions with both parents, and with the children.
- You can provide copies of your medical records, showing injuries that you incurred.
- If the police were called, you may be able to provide copies of criminal charges or convictions. These can have taken place in any state or country.
- You can also provide copies of text messages, emails, or Facebook posts you sent discussing the incidents after they happened.
The judge will consider all of the evidence you provide, as well as all the evidence the other parent provides, before making a decision about custody.
My parnter was emotionally abusive and very controlling, but was never violent with me or the children. Will the presumption apply?
No. Alaska law specific defines what a crime of domestic violence is. Though there are many such crimes, they are largely focused on physical actions and threats, such as attacking you, threatening to attack you, and damaging your property.
Verbal and emotional abuse, though they will be considered by the judge under The Best Interests of the Child standard, do not generally rise to the level necessary invoke the presumption against custody.
How bad does the violence have to be for the presumption to apply?
In order to get a long-term protection order, you only need to show that you were a victim of one crime of domestic violence.
In order for the judge to apply the presumption when determining custody, you will need to show the other parent has committed at least two minor crimes of domestic violence or one serious one. These crimes could be against you, the children, other family members, or previous romantic partners.
Do I have to go to mediation?
No! Alaska law does not require a victim of domestic violence to participate in mediation with the abuser. If the judge is suggesting it, simply remind them that you are a victim of domestic violence.
The Court may suggest a mediator "specially trained" to handle domestic violence cases, but cannot force you to agree to try it.
If you do decide to attempt mediation with a specially-trained mediator, you are allowed to bring your attorney or other advocate to the mediation session with you for support.
If the judge orders supervised visitation, who does the supervision?
The level of supervised visitation ordered will vary depending on the degree of danger to the children, the community the children reside in, the extended family situation, and the ages of the children involved.
- In extreme situations, the Court can order professionally supervised visitation. A professional superviser is often a counselor, and has to be paid by the parents to oversee visitation.
- If there are extended family members or friends available and willing to supervise, the Court will likely utilze them. If both parents cannot agree on a suitable supervisor, the Court will likely order a willing relative who lives nearby to act as supervisor.
- The least restricted form of supervised visitation is in a public place. This is most commonly used for teenagers or older children, and allows the visitation to take place in a public setting, such as a restaurant or sporting event.
If you object to the supervision ordered by the Court, you need to explain how it is not sufficient to protect your children during their time with the other parent.
It is important that you attend any hearing about custody of your children with a specific plan in place to handle visitation (if ordered). Speak to potential supervisors in advance, discuss schedules, and consider how you would like to handle exchanging the children.
I already have a protection order which says no contact with me or the children. Why do I need to ask for custody?
Protection orders only last for one year. A custody order is permanent. If you do not request full custody sometime before your protection order expires, there will be nothing you can do to stop the other parent from taking the children home with them.
Furthermore, a custody order trumps a protection order. If you have a protection order that says "no visitation," the other parent could turn around and file for temporary custody. Whatever the judge orders in your custody case will be binding, regardless of the terms of your protection order.