Child Custody

Child Custody

Legal and Physical Custody

The issue of child custody is usually of great concern to parents who are divorcing, or unmarried parents who are dissolving their household. The question of custody is actually two separate considerations: legal custody, or who makes major life decisions for the child, and physical custody, or who has the right to have the child live in their home. One parent may have sole legal and/or primary physical custody. However, it is common for parents to have joint legal custody and/or joint physical custody.

How is Custody Decided?

One of the most stressful parts of divorce for children is the knowledge that their parents are fighting over them, so it's ideal for parents to agree on custody and parenting time without a protracted court battle. If parents can agree upon a parenting plan that addresses custody, and it appears to be in the children’s best interests, a court will usually honor it.

One way parents can work together to reach a resolution that puts their children first is through the collaborative process. This is a form of alternative dispute resolution in which parents have the freedom to craft a parenting plan that is custom-made for their family's needs. In collaborative practice, parents have the flexibility to come up with more creative solutions than a judge would; because the parents themselves arrive at the terms of the agreement rather than having an order imposed upon them, they are much more likely to honor those terms. The process, geared as it is toward identifying and meeting the needs of all parties, reduces stress on both parents and children. Reaching agreement through the collaborative process also keeps decision-making power in the hands of the parents, and avoids what many parents consider the intrusion of the court system.

If parents choose to litigate the issue instead of reaching agreement, the court will determine who should have legal and physical custody based on the best interests of the child. These interests are determined by an examination of several factors set forth in Alaska Statutes 25.24.150.

These include such things as the physical, emotional, mental, religious, and social needs of the child; the capability and desire of each parent to meet these needs; and the child's preference if the child is of sufficient age and capacity to form a preference. The existence of domestic violence in the home is also strongly considered. In addition to the factors listed in the statute, the court may consider any information it considers relevant in making a custody determination.

The court often relies on child custody investigations to help it make custody decisions in difficult cases. The investigation may be done by the court system without charge if the parents are income-eligible, or by a private investigator paid for by the parents. The court may also make use of tools like parenting coordinators, or co-parenting facilitators, to help the parents learn how to operate as parents after divorce or separation.

When is Custody Modified?

In order to modify child custody, there must have been a substantial change of circumstances such that the original order is no longer in the child’s best interests. A change of circumstances might include a situation in which the original order was for an infant, but the child is now of school age, or in which one parent has been incarcerated or moved out of state.

Colbert Family Law, LLC represents both mothers and fathers in custody determinations in divorces and dissolutions of unmarried households, including same-sex couples. We have successfully handled numerous original custody determinations and modifications. Like our clients, our primary focus is on the well-being of their children during and after the custody determination, and we strive to help families through this process with a minimum of conflict.

Colbert Family Law, LLC serves clients throughout Alaska, from Anchorage and the Mat-Su Valley to remote villages. We invite you to contact Colbert Family Law, LLC online or at (907) 279-5001 to schedule a consultation to learn how we can help you with your Alaska child custody matter.

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Common Child Custody Concerns

I don’t want judges and lawyers deciding how to raise my children. Is there another way to work out our custody agreement that will respect my values and choices?

There are several ways.  You are wise not to trust judges to parent your children.  It is not what they are trained for, and they are unlikely to do a good job.  One solution is to locate a therapist or counselor who specializes in helping parents work out a parenting plan by working together.  A mental health professional can help you both better understand your children’s needs, and each other’s point of view.  If you choose this option, it is best if you also consult with an attorney who can review your options with you, and who will review the agreement when it is worked out to make sure it will work.  You could also choose collaborative divorce, which is explained elsewhere on this website.  You can hire a private mediator to mediate your agreement, but you should be sure that the mediator understands all the practical issues in custody cases.  Again, you should also consult with your own lawyer before and after mediation.  A mediator cannot give legal advice to either side, so it is important to have someone tell you what your rights and legal options are.  Finally, you can use your lawyer to try to work out an agreement with the other party and his or her lawyer.  This may not be the best option, but it is certainly better than going to court.  Colbert Family Law, LLC can help you navigate any of these options.  We are committed to empowering parents to make custody agreements that reflect their values and needs.

I have heard that there is something new called a Parenting Coordinator. Is that something that would help me with my custody problems?

There is something new called a Parenting Coordinator.  If you have a court order that establishes a custody or parenting plan, but you have had serious, continuing problems making joint decisions with the other parent, or coordinating visits, or if you have gone to court multiple times trying to fix your custody situation, this might be the solution for you.  A Parenting Coordinator (PC) is appointed by the court to make decision for parents when they are unable to do so.  The person is like a referee.  The PC’s decisions must be followed unless and until one of the parents gets the court to overrule to the decision.  The PC may either be free through the Court System, if the parties qualify financially, or paid privately.  A PC is a very efficient and effective method of resolving constant conflict between parents.  The PC may also be able to help the parents learn better skills at communicating and coming to joint decisions.

Can the collaborative approach be used for problems other than divorce?

The collaborative approach (for more information on this, go to www.alaskacollaborative.org) is suitable for many legal issues in addition to divorce.  Family legal issues are very sensitive and personal.  Many - if not most - clients would like to address their problems in a way that is less public and less confrontational than going to court.  The collaborative process meets this need.  It can be used to negotiate pre-and post-nuptial agreements; child support; child custody modifications; college support issues; and most other family legal problems you may face.  It is also very useful for negotiating relationship contracts and break-ups for couples who are not legally married.  If you find yourself in any of these situations, we would be happy to try to help you.

What do I need to think about if I want to change custody of my children?

In custody cases it is not unusual for a parent to agree to the entry of a custody order they’re not all that happy with because they think that it will be simple enough to change later on.   This isn’t necessarily so.

To change custody so that a new court order is issued, the parent that wants to change it must show two things.  The first is that there has been a significant change in circumstances since the last custody order was entered.  The court can be fairly strict as to what amounts to a significant change in circumstances and what doesn’t.  For instance, a change of circumstances the court will consider does not include situations where a parent has simply changed his/her mind and does not like the current custody situation anymore; situations where the child simply says he/she wants to live with that parent; or situations where the parties previously agreed between themselves that custody would somehow change later on.  Some examples of changes in circumstances the court will pay attention to are things like one parent moving out of the state or community; one parent having developed legal problems or substance abuse issues that are bad enough to interfere with his/her parenting responsibilities; or one parent being with a partner who abuses substances or abuses the parent.

If the parent meets the first criteria, the second thing a parent wanting to change custody must establish is that the new custody plan they are offering to the court meets the child’s best interests.  Parents often assume that if they get over the first hurdle, that custody will in fact change.  That isn’t necessarily so.  Courts can and do find that even when it agrees that circumstances have changed enough for it to reconsider custody, the current custody order is still meeting the child’s best interests.  For instance, if the change in circumstance was substance abuse related, the court will look to see if that parent is in treatment or otherwise has the issue under control.  It is not unheard of for parents like these to defeat a motion to change custody if they “rehabilitate” themselves while the attempt to change custody is going on in the court.  These kinds of things can be very frustrating for the parent wanting to change custody.

In a nutshell, the court takes its orders regarding custody very seriously, and does not review requests for changes in them lightly if the parents do not agree.  Every parent preparing to enter into an agreement about custody that is going to be made an order of the court needs to think about the terms of the agreement they are making, whether they can really live with it, the effect it will have on the child and on them in the future; and whether the agreement will wear well practically and in other ways.  If not, you may want to think again about going ahead with having the court enter that order.

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.

Can I modify my current custody and visitation order?

We get a lot of calls from people who are unhappy with their existing custody and visitation orders. Either the order does not reflect what is really happening, the schedule is not working, or there is no schedule at all and the parties are having constant arguments over visitation. The law allows you to ask the court to modify a custody or visitation order at any time, but you must to prove a “substantial change of circumstances.” What does this mean? If one parent is planning to leave the state, with or without the children, this is automatically considered a “substantial change.” The court will determine whether the children should go or stay and what the new visitation will be, if the parents can’t agree. On the other hand, some people have orders that do not specify visitation at all, but say things like “liberal visitation” or “visitation as arranged between the parents.” Orders like this are impossible to enforce, so if you are not getting visitation, you need to ask the court to modify the order to specify what you get. If things have changed because, for example, the children are older the schedule was designed for preschoolers, you can ask the court to change the schedule. Finally, if you think the other parent is harming the children somehow, you can move to modify the custody and/or the visitation. But remember that the change has to be substantial; you will waste your time if you go to court over trivial issues like haircuts or footwear.

Before going to court, or hiring a lawyer to go to court for you, give serious thought to what change you want, and what would work both for you and for the children. The court can only change an order if it is in the “best interests of the children.” You might save time and money by consulting with a lawyer before you decide whether to ask for a modification, even if you decide to do that actual work yourself.

I want to have 50/50 custody of the kids in my divorce so that neither one of us will have to pay child support. Is this possible?

I never like to hear this question. Have you asked yourself what 50/50 means, and whether it would be good for your kids? Perhaps you have. But even if "50/50" would work for your kids, it does not mean that no one pays child support unless the parents have equal incomes. If the parents have unequal incomes, the higher earning parent will have to pay some support.