Alaska has the unfortunate distinction of having one of the highest domestic violence rates per capita in the nation, but the legislature took steps in 2004 to protect children against the fallout of such abuse. If you're divorcing in this state, and you have a history of perpetrating family violence, you can't have custody of your children – even joint custody shared with their other parent. It's the law, and the only possible way around it is through rehabilitation.
History of Abuse
Legislation passed in Alaska, House Bill 385 effective July 2004, prohibits the placement of children with a parent who has committed acts of abuse. The law isn't limited to abuse against spouses. It also includes violence against any child or adult the abusive parent has lived with. The statute cites a history of violence, but this can mean only one incident if that incident caused the victim serious injury. Otherwise, more than one act must have occurred to prevent the court from awarding custody to that parent.
Not all divorces go to trial. Spouses often reach marital settlement agreements, resolving marital issues without involving the court. House Bill 385 extends to these agreements. If you have children, and your agreement awards either sole or joint custody to an abusive parent, the judge can refuse to approve the agreement during the divorce process. Even if he doesn't refuse outright, you can expect that he'll want to investigate the situation before approving your agreement about custody.
Best Interests Factors
Most states grant custody in a divorce based on a statutory list of things they consider to be in a child's best interests. Alaska's best interests factors have always included a reference to domestic violence, and House Bill 385 clarifies and enforces it. The state's factors also include a "friendly parent" provision, which favors granting custody to the parent who is most likely to encourage a relationship between her children and the other parent. The 2004 legislation modifies this factor. A parent is only held to this standard in the absence of spousal abuse or other incidents of domestic violence.
House Bill 385 provides a rebuttable presumption in favor of not granting custody to an abusive parent. This means that courts must rule against granting custody unless the parent accused of violence or abuse can present a compelling argument for custody -- and that parent has a legal right to make that argument. For example, efforts toward rehabilitation can override the terms of the law. Such efforts can include attending and completing a batterer's intervention program and proving that you don't abuse alcohol or drugs. It may also be in your child's best interests to place custody with you regardless of any history of abuse, provided the necessary rehabilitation has taken place, if your spouse is unfit, has a drug or alcohol problem or can't be located.
Effect on Visitation
House Bill 385 also affects an abusive parent's right to visitation after custody has been placed with the other parent. The law requires supervised visitation with a parent who has committed an act or acts of domestic violence. A responsible third party must be present at all times to watch out for the safety and welfare of the child. Visitation can be denied entirely if the parent doesn't complete both a batterer's intervention program and a parenting class. Visitation provisions are also rebuttable, however. If you find yourself in this situation, you can present the court with proof that spending time with you is in your child's best interests.