In a custody case, what does it mean if a parent has a "history of domestic violence"?

The Alaska statute that governs custody was amended in 2004 to strengthen the protection of children from domestic violence. Because the change is so new, attorneys and judges are still confused about what exactly the statute means. Two recent Alaska Supreme Court opinions have helped to clarify it, but there are still many unanswered questions.

The statute applies to parents who have a “history of domestic violence.” That is defined to mean one serious incident involving physical injury, or more than one other type of incident. Domestic violence is defined elsewhere in the statutes, and includes things like harassment and stalking as well as actual hitting. It is not necessary that the parent ever have been charged with a crime, or even that a domestic violence restraining order have been granted in the past. If the court finds a parent to have a “history,” the court has to restrict that person to supervised visits until the person completes treatment. A person with a “history” cannot be awarded joint or sole legal or physical custody. There are some circumstances under which the court can allow unsupervised visits or even custody, but it must make certain findings if it does.

This change in the statute really raises the stakes in situations where there has been domestic violence, either in the current relationship, or even in a prior relationship. Sometimes both parents have a “history” of violence, often against each other. In these situations, the court is supposed to pick the less dangerous parent, or even award custody to a nonparent. The change in the statute was designed to acknowledge the research that shows that domestic violence is harmful to children even when it is not directed at the children. It was intended to force courts to give careful consideration of the parents’ histories of domestic violence when custody orders are made.