Alaska legal guardianship
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How does custody get decided as between a parent and a third party?
As the Alaska Supreme Court has stated:
We apply a different legal standard in custody disputes between parents than in custody disputes between parents and non- parents. In custody disputes between parents, custody is determined "in accordance with the best interests of the child." . . .However, in a child custody dispute between parents and non-parents, parental custody is considered to be "preferable and only to be refused where clearly detrimental to the child." . . . We have previously noted that when a child has resided with a non-parent for a significant amount of the child's life, "severing the bond between the psychological parent and the child may well be clearly detrimental to the child's welfare." . . . However, even if the non-parent has been the child's primary caregiver, the burden is on the non-parent to prove, by a preponderance of the evidence, that parental custody would be "clearly detrimental." . . .[footnotes omitted]
How does custody get decided as between parents?
In an action for divorce filed in Alaska, the court may make or modify orders for custody or of visitation between parents and their children. The court can also provide for visitation by a grandparent or other person. Neither parent, regardless of the question of the child's legitimacy, is entitled to preference in the award of custody. The standard the court uses in making custody determinations is the "best interests of the child."
In determining the best interests of the child, the court must consider certain factors. The court can consider other factors which it considers pertinent, however, the court may consider only those facts that are relevant and directly affect the well being of the child. The factors which the court must consider include the following:
The physical, emotional, mental, religious, and social needs of the child.
The capability and desire of each parent to meet these needs.
The preference of a child, if the court determines that the child is of sufficient age and capacity to form a preference.
The love and affection existing between the child and each parent.
The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
The desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent.
Any evidence of domestic violence, child abuse, or child neglect in the home of a parent who desires custody, or a history of violence between the parents.
Evidence that substance abuse by either parent or other members of the household directly affect the emotional or physical well-being of the child.
The factors listed above are guidelines which should be carefully reviewed with an attorney, if a parent chooses to obtain one, so that the specific facts pertaining to custody in each particular case can be applied to them. They should also be reviewed prior to meeting with a custody investigator or Guardian ad Litem, and again in preparation for a custody hearing or trial. Parents seeking custody should understand that it is the best interests of the child, not the parent, which are to be considered by the court in making custody determinations.
What’s the terminology for custody?
A. Joint vs. Sole Legal Custody. In every divorce case concerning the custody of children, a court must make a decision regarding whether one or both parents should have legal custody of the children of the marriage. Legal custody means who controls the children and who makes the decisions which affect their lives. It is distinct and different from physical custody, which involves the physical placement of the children.
Some of the major decisions affecting the lives of children concern educational issues. Which school should the children attend? Other decisions involve medical care for the children, including which doctors should provide care, and whether a child should undergo elective surgery such as braces, or cosmetic changes, which may include plastic surgery. Parents with legal custody of a child also decide issues involving the religious upbringing of a child, including the chosen place of worship, and whether or not to perform certain religious ceremonies such as baptism or bar mitzvah.
A court can award one parent with sole legal custody of a child. This means that one parent alone may make these decisions, and those decisions are final, unless the court orders a different result. A court can also issue an order that both parents have joint legal custody of a child. Joint legal custody means, at least in theory, that both parents have an equal say in such decisions. At a minimum, joint legal custody means that both parents must communicate about and have input in the major decisions affecting the social, physical, emotional, mental, and religious needs of the child. A court will only order joint custody if it is in the best interests of the child.
Ideally, joint legal custody should be awarded in all cases, for parents who can agree upon decisions about their children can work together to create a stable, loving and consistent environment for a child who has been subject to a divorce proceeding. Divorced parents who can continue to co-parent children together have a better ability to help their children to deal more effectively with the trauma inherent in every divorce.
Unfortunately, many parents cannot communicate to the degree necessary to effectively handle the responsibility involved in making joint legal custody of the children work. A judge may be reluctant to award joint legal custody unless evidence is presented which demonstrates that the parents are able to put aside their own personal anger at each other and communicate effectively together regarding the best interests of their children.
Often, one parent will make communication with the other parent difficult due to anger or out of a desire to control the other parent, the situation, or the children. Parents who desire to co-parent their children may become frustrated due to the unwillingness of the other parent to attempt to amicably resolve questions involving the children. A parent who has physical custody of the children and desires to gain an advantage in a custody case may unilaterally cut off communication in an attempt to convince the court that sole legal and physical custody is best for the children. It is often difficult to decide what steps to take in order to act in the best interest of the children in such situations.
B. Child Support Terminology. Pursuant to the Definitions section of the Alaska Civil Rule regarding child support, are the following terms:
Shared Physical Custody. A parent has shared physical custody of children for purposes of this rule if the children reside with that parent for a period specified in writing of at least 30, but no more than 70, percent of the year, regardless of the status of legal custody.
Sole or Primary Physical Custody. A parent has sole or primary physical custody of children for purposes of this rule when the other parent has physical control of the children less than 30 percent of the year.
Divided Custody. Parents have divided custody under this rule if one parent has sole or primary physical custody of one or more children of the relationship and the other parent has sole or primary custody of one or more other children of the relationship, and the parents do not share physical custody of any other children.
Is there a presumption in favor of not changing custody arrangements?
MODIFYING CUSTODY AND VISITATION ORDERS.
As children grow older, their needs change. A custody and visitation order which was appropriate in the past may no longer serve the needs of a child, and may not fit the new circumstances and schedules of their families.
A parent seeking to change a custody or visitation order must show both that there has been a change of circumstances and that a change of custody or visitation would be in the child's best interests. The parent who asks a court to modify an existing custody or visitation order must normally first demonstrate that the circumstances which existed when the order was entered have substantially changed. The Alaska Supreme Court has stated that if a parent is moving outside of Alaska, it is presumed that the circumstances have substantially changed. Once a changed circumstance is shown to the court, a hearing is held.
At the hearing, the court reviews the evidence of the facts which have arisen since the prior order was entered and the present needs of the children, and makes a determination as to what custody and visitation arrangement would be in the children’s best interests. In deciding whether to modify custody, the court may also consider the past history of nonpayment of child support if a parent had actual knowledge of the amount of the child support obligation and had the funds or could have obtained them but did not do so. The parent asking for the change in custody or visitation has the burden of proving to the court that the prior order should change. The Alaska Supreme Court has stated that mere improvement in the position of one of the parties is not sufficient to justify a change in custody.
The rules in Alaska concerning modification of custody and visitation orders were designed to discourage discontented parents from continually renewing custody proceedings. A judge must indicate the reasons for changing custody or visitation and the new factors which caused the court to change an existing custody or visitation order.
Once a custody or visitation order has been modified, a judge must consider whether the change requires a modification of child support. If a judge is asked to award attorney’s fees after a modification hearing, the court balances the relative financial situations of the parents and determines whether each parent has acted in good faith. The court does not want to penalize parents from bringing their concerns to court, but also attempts to discourage people from litigating these matters with a lack of good faith, such as parents who litigate out of anger or for some other purpose which does not focus on the best interests of their children.
What effect does the misconduct of one of the parents have on custody?
Every situation is different. If parental misconduct has little to do with the children, for example, an affair or a financial impropriety, this may have little or no bearing on the issue of custody. If a parent’s misconduct adversely affects the children or calls into question a parent’s ability to make effective decisions the children or a parent’s desire and/or ability to meet meeting their needs, a court may consider this in awarding custody.
What effect does the mental health of one of the parents have on custody?
A court can consider as a factor a parent whose mental health issues prevent them from effectively meeting the needs of their children. A parent whose mental health issues include inability to control their anger and resulting domestic violence may find that a judge in a custody case gives serious consideration to these matters.
What effect does the preference of the child have on custody?
Divorcing parents often ask their attorneys at what age their children get to decide with which parent they want to live. Some parents are under the mistaken belief that once a child becomes a certain age, whatever custody and visitation schedule the child desires will automatically be approved of by a judge and followed by the parents. The Alaska legislature has chosen not to set a specific age at which a child’s desire to live with one parent is considered by the court. Instead, Alaska law states that the court may consider the preference of a child, if the court determines that the child is of sufficient age and capacity to form a preference. This test allows a court substantial discretion in determining, on a case by case basis, whether a particular child is old enough and articulate enough to have a meaningful preference. While it is clear that the preference of most children over the age of 15 will be strongly considered, and that most children under 7 will not have the capacity to form a meaningful preference, what falls in between is a gray area which can vary greatly from judge to judge in its implementation.
Even when a child’s desire is considered, it is only one of many factors the court must consider in determining custody and visitation. The court can consider other factors which it considers pertinent, however, the court may consider only those facts that are relevant and directly affect the well-being of the child. What all of this means is that there is no clear answer as to how much weight, if any, a judge in a divorce or custody case is going to give to the child’s preference.
How does visitation get set?
At an interim or final custody or divorce hearing, a court may set visitation consistent with the best interests of the children.
Is there such a thing as "standard visitation"? If so, what is it?
There is no "standard" visitation in Alaska law. However, Alaska Statute 25.20.070 states in pertinent part:
Unless it is shown to be detrimental to the welfare of the child, the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers an award of custody . . .
The legislative intent was expressed as follows: (a) The legislature finds that it is generally desirable to assure a minor child frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing.
Is there a standard visitation pattern when the non-custodial parent is in a different state from the child? If so, what is it?
A recent Alaska Supreme Court decision held that where one parent has moved to a distant locale, a six month alternating physical custody arrangement disrupts the stability of a young child’s life and is not in the children’s best interests absent compelling evidence to the contrary. Therefore, it is likely that one parent will spend the majority of time with the children and that the other parent will have visitation on a schedule set by the court. While there are no such schedules written in Alaska law, ordinarily the court attempts to give the non-custodial parent as much visitation as possible during the summer and school holidays, depending on the specific facts of each case.
What rules govern cases where the custodial parent wants to move away with the children?
Alaska is a remote place. Often families relocate here as a result of military and job transfers, or because one spouse has an urge to live in the last frontier. Later, another job transfer occurs or a parent may find that living in a northern climate so far from family and friends is too much to bear. A parent’s decision to leave Alaska undermines the ability of both parents to have continuous and equal contact with the children and forces parents or the court to choose which of the parents will enjoy primary physical custody of children. This article examines this troubling issue.
For married parents who know before a divorce occurs that one spouse will relocate at the time of the divorce or soon thereafter, the court can consider this issue in advance and make specific findings about what will occur in the best interests of the children when a parent relocates. Parents who resolve their marriages through the process of dissolution can put specific language into their agreement which tells the court what will happen if either parent later moves out of state. Coming up with a solution to this issue in advance may avoid costly litigation in the future.
What happens when parents already have a custody and visitation order in place which does not include any provisions concerning an out of state move by one parent? Generally, in order to ask a court to take another look at a custody award, a parent seeking modification must first prove that the circumstances have changed since the prior order was entered. For changes to custody, a substantial change of circumstances must be shown. The Alaska Supreme Court has stated that if a parent moves outside of Alaska, this change constitutes a substantial change of circumstances. As a result, a court will normally hold a hearing so that it can next determine whether to change custody and/or visitation and fashion another order which is in the best interests of the children.
Other issues that the court needs to consider include whether the parents will share legal custody or if one parent will have sole legal custody, how to allocate transportation costs, whether the children will fly unaccompanied or with an escort, how contact between the children and the parents will occur, and how the non-custodial parent will obtain important information about the child. Once custody and visitation changes, the court may also need to recalculate child support.
What visitation rights do grandparents have, if any?
Many grandparents have had difficulty maintaining close contact with their grandchildren, especially after divorce proceedings have been initiated. In the past, the only avenue which may have been available to grandparents in most cases was to request that their children ask the court for grandparents rights in an active divorce or custody case. The court could award for visitation by a grandparent if it was found to be in the best interests of the grandchild.
Recently the Alaska legislature enacted a bill entitled "An Act relating to child visitation rights of grandparents and other persons who are not the parents of the child." This new law allows a grandparent to petition the court directly for an order establishing reasonable rights of visitation between the grandparent and grandchild. The law allows grandparents to petition the court prior to the entry of a divorce or custody decree, if the grandparent has established or attempted to establish ongoing personal contact with the child, and visitation is in the best interest of the child. After a final divorce, custody or adoption decree is entered, a grandparent may petition the court only if the grandparent did not previously request visitation during the prior litigation, or if there has been a change in circumstances which justifies reconsideration of the grandparent's visitation rights. In determining grandparent visitation, the court must consider whether the child's parent (who is the son or daughter of the grandparent) had any history of child abuse or domestic violence. The law also provides that if parents make an agreement regarding the custody of their children, a court must determine whether their agreement should include visitation by grandparents which is in the best interests of the children.
These sweeping changes are good news for grandparents. Alaska has recognized that grandparents have the right, separate from the rights of their children, to ask the court to maintain the bond between grandparent and grandchild. Alaska has continued to focus on the needs of the children, not the needs of the adults, in fashioning visitation and custody awards. The new law is a positive step in this direction, and provides hope for grandparents who, despite bitterness created by domestic disputes, desire to maintain a loving and continuous relationship with their grandchildren.
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