In any Alaska family law case involving children, the court's main goal is to determine a custody and visitation schedule based on the child's best interests. While courts generally favor a co-parenting arrangement with frequent contact for both parents, a history of domestic violence drastically changes the legal landscape.
If a court finds that one parent has a history of domestic violence, Alaska law (AS 25.24.150(g)) establishes a rebuttable presumption against awarding that parent:
- Sole legal custody.
- Sole physical custody.
- Joint legal custody.
- Shared physical custody.
In simple terms, the law presumes it's not in the child's best interest for the abusive parent to have custody or shared custody.
Proving Domestic Violence in Court
A formal Domestic Violence Protective Order (DVPO) is strong evidence of a history of abuse, but a separate criminal charge or conviction is not required for the family court to apply the presumption.
Under Alaska Statute, a parent is considered to have a history of perpetrating domestic violence if the court finds they have:
- Committed one incident of domestic violence involving serious physical injury; OR
- Engaged in more than one incident of domestic violence (with or without causing injury).
The family law judge considers all evidence presented, including testimony, medical records, and police reports, to determine if this history exists.
The Impact on Visitation
If the court finds that a parent has a history of domestic violence, the law is clear: the court must allow only supervised visitation with the child. This is a non-negotiable step to protect the child's safety.
This mandatory supervised visitation is conditioned on the abusive parent participating in and successfully completing two key requirements:
- An intervention program for batterers (where reasonably available).
- A parenting education program.
The type of supervision can vary from a trusted family member to a professional supervisor, depending on the degree of danger and the resources available in the community.
Overcoming the Presumption
The presumption against custody is "rebuttable," meaning the abusive parent can attempt to overcome it. They must prove by a preponderance of the evidence that:
- They have successfully completed an intervention program for batterers.
- They do not engage in substance abuse.
- The best interests of the child require their participation as a custodial parent because the other parent is absent, mentally ill, or a substance abuser.
If the presumption is not overcome, the court cannot award that parent any form of custody and must restrict their contact to supervised visitation. To seek unsupervised visitation, the violent parent must also prove to the court that unsupervised contact is in the child's best interests.
DVPOs and Temporary Custody
A protective order (DVPO) is a separate legal proceeding from a permanent divorce or custody case, but it has immediate, powerful effects. A long-term DVPO in Alaska typically lasts one year and may:
- Award temporary custody of the minor child to the petitioner (the protected party).
- Arrange for limited or supervised visitation for the respondent (the abusive party), if the safety of the child can be protected.
- Prohibit the respondent from any contact with the petitioner.
It is crucial to remember that a DVPO is a temporary order. If you have a DVPO that grants you temporary custody, you must file a separate, permanent custody action before the protective order expires. If the DVPO lapses without a permanent custody order in place, both parents revert to having equal legal rights to the child, potentially nullifying the safety provisions you secured.
Disclaimer: This blog post provides general information on Alaska family law. It is not a substitute for legal advice. If you are dealing with domestic violence and child custody issues, you should consult with a qualified Alaska family law attorney immediately.
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