The Best Interests of the Child

In Alaska custody cases, judges presume it is in the best interests of the children for both parents to have equal access to and rights over their children. This means that the default custody order will be that parents share legal and physical custody. A 50/50 custody order can take many forms depending on the child's needs and parent's availability.

However, it is not always possible for parents to equally share custody. If, for example, the parents live in separate communities, or there are concerns about safety, the Judge will have to select one parent to have "primary" custody of the children and determine what sort of visitation the "non-primary" parent will have.

Whenever a court has to make a decision about child custody or visitation, Alaska Law (AS 25.24.150) lays out very specific guidelines for the Judge to consider:

1. The physical, emotional, mental, religious, and social needs of the child. This means that a judge will weigh everything important to your child, such as health care, education, extracurricular activities, friendships, and anything else that is of importance to your child's all around well-being.
2. The capability and desire of each parent to meet these needs. Once the judge has determined your child's particular needs, they will consider which parent is best able to meet them. For example, a newborn infant that is breast-feeding will be more dependent upon regular contact with their mother than an older child eating solid foods.
3. The child's preference if the child is of sufficient age and capacity to form a preference. Though there is no strict age guideline under Alaska law, children are not generally mature enough to make reasoned decisions about which parent to live with until they are teenagers. Even then, a judge will look at the reason the teenager is expressing a preference for one parent over another. 
4. The love and affection existing between the child and each parent. It is very important that separating parents separate their own feelings towards one-another from the feelings children will have towards their other parent. Your child will not despise their other parent simply because you do. Correspondingly, your partner choosing to leave your relationship does not mean they no longer wish to be a part of the child's life.
5. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity. This can refer to either the community the child has resided in, or the primary caregiver who provides stability for the child.
6. The desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent. If the situation requires that the Judge assign primary custody to one parent, they are going to look most favorably on the parent that will encourage visitation and contact with the absent parent. There is an exception to this rule when there has been a history of domestic violence.
7. Any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents. A history of domestic violence between parents will affect the custody and visitation arrangement. The law presumes that the parent who committed the domestic violence should not get custody and visitation unless he or she meets certain requirements. These may include completing a batterer’s intervention or substance abuse treatment program. To find domestic violence, the law does not require the existence of a protective order or criminal charges.
8. Evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child. Even legally acquired substances can affect your ability to parent, particularly without the support of a partner. If substance abuse is a concern, access to the children may be restricted until the dependent parent has undergone treatment, or provided a series of clean drug tests to the Court.
9. Other factors that the court considers pertinent. This is a catch-all that allows the Court to consider any special component of your child's life. Court's will, for example, commonly consider bonds between full-siblings, half-siblings, and step-siblings, when making their custody determinations.

The evidence you present to the Court to support your request for custody needs to relate to these guidelines. For example, a witness could describe how happy and involved a child is in your community to help show how the first guideline, the needs of the child, are being met. Bringing up unrelated issues, such as infidelity in the relationship, will not help your case and may hurt it. 

One way you can provide evidence to the Court about the "best interests" of the children in your case is by using the Alaska Court System's Best Interest Affidavit and Memorandum (SHC-1125). The affidavit is how you present the facts to the Court. The memorandum is where you explain why those facts should persuade the judge to apply the guidelines in a certain way. If you use the form, make sure to give a copy of the completed form to the opposing party at the same time you give it to the Court.