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HB 385: "An Act relating to awarding child custody; and providing for an effective date."

00                             HOUSE BILL NO. 385                                                                          
01 "An Act relating to awarding child custody; and providing for an effective date."                                       
02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
03    * Section 1.  AS 25.20.060(a) is amended to read:                                                                  
04            (a)  If there is a dispute over child custody, either parent may petition the                                
05       superior court for resolution of the matter under AS 25.20.060 - 25.20.130.  The court                            
06       shall award custody on the basis of the best interests of the child.  In determining the                          
07       best interests of the child, the court shall consider all relevant factors, including those                   
08       factors enumerated in AS 25.24.150(c), and the presumption established in                                     
09       AS 25.24.150(g).  In a custody determination under this section, the court shall                              
10       provide for visitation by a grandparent or other person if that is in the best interests of                       
11       the child.                                                                                                        
12    * Sec. 2.  AS 25.20.070 is amended to read:                                                                        
13            Sec. 25.20.070.  Temporary custody of the child.  If [UNLESS] it is in the                           
14       best interests [SHOWN TO BE DETRIMENTAL TO THE WELFARE] of the child                                          
15       under AS 25.24.150(c), and the presumption under AS 25.24.150(g) is not                                       
01       present, the child shall have, to the greatest degree practical, equal access to both                         
02       parents during the time that the court considers an award of custody under                                        
03       AS 25.20.060 - 25.20.130.                                                                                         
04    * Sec. 3.  AS 25.20.090 is amended to read:                                                                        
05            Sec. 25.20.090.  Factors for consideration in awarding shared child                                        
06       custody.  In determining whether to award shared custody of a child the court shall                             
07       consider                                                                                                          
08                 (1)  the child's preference if the child is of sufficient age and capacity to                           
09       form a preference;                                                                                                
10                 (2)  the needs of the child;                                                                            
11                 (3)  the stability of the home environment likely to be offered by each                                 
12       parent;                                                                                                           
13                 (4)  the education of the child;                                                                        
14                 (5)  the advantages of keeping the child in the community where the                                     
15       child presently resides;                                                                                          
16                 (6)  the optimal time for the child to spend with each parent considering                               
17                      (A)  the actual time spent with each parent;                                                       
18                      (B)  the proximity of each parent to the other and to the school                                   
19            in which the child is enrolled;                                                                              
20                      (C)  the feasibility of travel between the parents;                                                
21                      (D)  special needs unique to the child that may be better met by                                   
22            one parent than the other;                                                                                   
23                      (E)  the willingness and ability of each [WHICH] parent [IS                                    
24            MORE LIKELY] to facilitate and encourage a close [FREQUENT] and                                      
25            continuing relationship between [CONTACT WITH] the other parent and                                  
26            the child, except that the court may not consider this willingness and                                   
27            ability if one parent shows that the other parent has sexually assaulted or                              
28            engaged in a pattern of abusive behavior against the parent or a child, and                              
29            that a continuing relationship with the other parent will endanger the                                   
30            health or safety of either the parent or the child;                                                      
31                      (F)  the desirability of placing the child with the child's                                    
01            primary caregiver if the caregiver is considered a fit caregiver by the                                  
02            court;                                                                                                   
03                 (7)  any findings and recommendations of a neutral mediator;                                            
04                 (8)  any evidence of domestic violence, child abuse, or child neglect in                                
05       the proposed custodial household or a history of violence between the parents;                                    
06                 (9)  evidence that substance abuse by either parent or other members of                                 
07       the household directly affects the emotional or physical well-being of the child;                                 
08                 (10)  other factors the court considers pertinent.                                                      
09    * Sec. 4.  AS 25.24.150(c) is amended to read:                                                                     
10            (c)  The court shall determine custody in accordance with the best interests of                              
11       the child under AS 25.20.060 - 25.20.130.  In determining the best interests of the                               
12       child the court shall consider                                                                                    
13                 (1)  the physical, emotional, mental, religious, and social needs of the                                
14       child;                                                                                                            
15                 (2)  the capability and desire of each parent to meet these needs;                                      
16                 (3)  the child's preference if the child is of sufficient age and capacity to                           
17       form a preference;                                                                                                
18                 (4)  the love and affection existing between the child and each parent;                                 
19                 (5)  the length of time the child has lived in a stable, satisfactory                                   
20       environment and the desirability of maintaining continuity;                                                       
21                 (6)  the willingness [DESIRE] and ability of each parent to facilitate                          
22       [ALLOW AN OPEN] and encourage a close [LOVING FREQUENT                                                        
23       RELATIONSHIP BETWEEN THE CHILD] and continuing relationship between                                           
24       the other parent and the child, except that the court may not consider this                                   
25       willingness and ability if one parent shows that the other parent has sexually                                
26       assaulted or engaged in a pattern of abusive behavior against the parent or a                                 
27       child, and that a continuing relationship with the other parent will endanger the                             
28       health or safety of either the parent or the child;                                                           
29                 (7)  any evidence of domestic violence, child abuse, or child neglect in                                
30       the proposed custodial household or a history of violence between the parents;                                    
31                 (8)  evidence that substance abuse by either parent or other members of                                 
01       the household directly affects the emotional or physical well-being of the child;                                 
02                 (9)  the desirability of placement of the child with the child's                                    
03       primary caregiver if the caregiver is considered a fit caregiver by the court;                                
04                 (10)  other factors that the court considers pertinent.                                             
05    * Sec. 5.  AS 25.24.150 is amended by adding new subsections to read:                                              
06            (g)  There is a rebuttable presumption that a parent who has a history of                                    
07       perpetrating domestic violence may not be awarded sole legal custody, sole physical                               
08       custody, joint legal custody, or joint physical custody of a child.                                               
09            (h)  A parent has a history of perpetrating domestic violence under (g) of this                              
10       section if the court finds that, during one incident of domestic violence, the parent                             
11       caused serious bodily injury or the court finds that the parent has engaged in more than                          
12       one incident of domestic violence.  The presumption may be overcome only by clear                                 
13       and convincing evidence that the perpetrating parent has successfully completed an                                
14       intervention program for batterers, that the parent does not engage in substance abuse,                           
15       and that the best interests of the child require that parent's participation as a custodial                       
16       parent because the other parent is absent, suffers from a diagnosed mental illness that                           
17       affects parenting abilities, or engages in substance abuse that affects parenting                                 
18       abilities, or because of other circumstances that affect the best interests of the child.                         
19            (i)  If the court finds that both parents have a history of perpetrating domestic                            
20       violence under (g) of this section, the court shall either                                                        
21                 (1)  award sole legal and physical custody to the parent who is less                                    
22       likely to continue to perpetrate the violence and require that the custodial parent                               
23       complete a treatment program; or                                                                                  
24                 (2)  if necessary to protect the welfare of the child, award sole legal or                              
25       physical custody, or both, to a suitable third person if the person would not allow                               
26       access to a violent parent except as ordered by the court.                                                        
27            (j)  If the court finds that a parent has a history of perpetrating domestic                                 
28       violence under (g) of this section, the court shall allow only supervised visitation by                           
29       that parent with the child, conditioned on that parent's participating in and successfully                        
30       completing an intervention program for batterers and a parenting education program,                               
31       except that the court may allow unsupervised visitation if it is shown by a                                       
01       preponderance of the evidence that the violent parent has completed a substance abuse                             
02       treatment program, is not abusing alcohol or psychoactive drugs, does not pose a                                  
03       danger of mental or physical harm to the child, and unsupervised visitation is in the                             
04       child's best interests.                                                                                           
05            (k)  The fact that an abused parent suffers from the effects of the abuse does                               
06       not constitute a basis for denying custody to the abused parent.                                                  
07    * Sec. 6.  This Act takes effect July 1, 2004.