00 HOUSE BILL NO. 422                                                                                                      
01 "An Act relating to custody and visitation rights."                                                                     
02 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
03    * Section 1.  AS 11.41 is amended by adding a new section to read:                                                   
04  Sec. 11.41.340.  CUSTODIAL INTERFERENCE IN THE THIRD DEGREE.                                                          
05 (a)  A person commits the crime of custodial interference in the third degree if                                        
06   (1)  being a relative of a child under 18 years of age or a relative of an                                           
07 incompetent person and knowing that the person has no legal right to do so, the person                                  
08 intentionally takes, entices, or keeps that child or incompetent person from a lawful                                   
09 custodian; or                                                                                                           
10   (2)  being a lawful custodian of a child under 18 years of age and                                                   
11 knowing that the person has no legal right to do so, the person                                                         
12   (A)  takes, entices, or keeps the child with the intent of denying                                                  
13 access to the child by another person during a time when the other person has                                           
14 the legal right under court order to be with the child;                                                                 
01   (B)  fails to comply with an order to allow visitation with the                                                     
02 child by another person after being found in contempt for failure to comply                                             
03 with a visitation order; or                                                                                             
04   (C)  has engaged in a pattern of intentional violation of court                                                     
05 orders to allow visitation by another person with the child.                                                            
06  (b)  The defendant has an affirmative defense to conviction under (a) of this                                         
07 section if the defendant shows by clear and convincing evidence that                                                    
08   (1)  the defendant's purpose was to protect the child or the defendant                                               
09 from imminent physical harm, the belief in the existence of the imminent physical                                       
10 harm was reasonable, and the defendant sought the assistance of law enforcement                                         
11 personnel, a public agency, or the court of any state before, or within a reasonable                                    
12 time after, committing the acts giving rise to the charges;                                                             
13   (2)  the complainant had, before the defendant committed the acts giving                                             
14 rise to the charge, failed for a protracted period of time to exercise the complainant's                                
15 rights to physical custody or access to the child, failed to give any notice to the                                     
16 defendant of a desire to resume exercise of the complainant's rights to physical                                        
17 custody or access, and neither failure was the result of the defendant's denial of access                               
18 to the complainant or denial to the complainant of knowledge of the whereabouts of                                      
19 the defendant;                                                                                                          
20   (3)  the acts giving rise to the charges were consented to by the                                                    
21 complainant; or                                                                                                         
22   (4)  the defendant, after providing or making a good faith effort to                                                 
23 provide notice to the person entitled to access to the child, failed to provide access to                               
24 the child due to reasons that a reasonable person would believe were directly related                                   
25 to the welfare of the child, and allowed access to the child in accordance with the                                     
26 court order within a reasonable period of time.                                                                         
27  (c)  Custodial interference in the third degree is a class B misdemeanor except                                       
28 that a person convicted under this section after previously being convicted under this                                  
29 section or under a law in another jurisdiction with substantially similar elements is                                   
30 guilty of a class A misdemeanor.                                                                                        
31    * Sec. 2.   AS 25.20 is amended by adding new sections to read:                                                      
01  Sec. 25.20.102.  NOTICE OF RELOCATION.  The court shall include as a                                                  
02 condition of a custody or visitation order a requirement that a party intending to                                      
03 relocate the temporary or permanent residence of a child shall give advance written                                     
04 notice of the intention to either the court or the other party, or both, at least 60 days                               
05 before the intended relocation.  The court may require that the notice be in the form                                   
06 and contain the information that the court considers necessary under the circumstances.                                 
07  Sec. 25.20.104.  MINIMUM VISITATION SCHEDULE; OLDER CHILDREN.                                                         
08  (a)  Except as provided in (c) and (d) of this section, in a proceeding in which child                                 
09 custody is awarded to one parent and visitation rights are awarded to the other parent                                  
10 where all children involved are at least five years of age, the court shall award the                                   
11 visiting parent at least the following visitation rights:                                                               
12   (1)  the first, third, and fifth weekend of each month, subject to (4) - (8)                                         
13 of this subsection;                                                                                                     
14   (2)  the weekend of Father's Day if the visiting parent is male or the                                               
15 weekend of Mother's Day if the visiting parent is female;                                                               
16   (3)  each Wednesday evening from the end of the school day until                                                     
17 school the following morning, subject to (4) - (8) of this subsection;                                                  
18   (4)  45 continuous days during the school summer vacation period or,                                                 
19 at the election of the visiting parent, two separate periods of consecutive days that total                             
20 45 days during the school summer vacation period;                                                                       
21   (5)  the school spring vacation period every other year;                                                             
22   (6)  the school Thanksgiving vacation period every other year;                                                       
23   (7)  the school Christmas vacation period occurring before 9:00 o'clock                                              
24 in the morning on December 25th in the years in which the visiting parent has                                           
25 visitation during the Thanksgiving vacation period;                                                                     
26   (8)  the school Christmas vacation period occurring after 9:00 o'clock                                               
27 in the morning on December 25th in the years in which the visiting parent does not                                      
28 have visitation during the Thanksgiving vacation period.                                                               
29  (b)  An election by a visiting parent under this section shall be made in a                                           
30 manner and at a time that the court considers appropriate under the circumstances.                                      
31  (c)  If the parents reside more than 100 miles apart and distance and travel time                                     
01 considerations are found by the court to make the schedule described in (a) of this                                     
02 section unworkable, the court shall establish a visitation schedule as similar as possible                              
03 to that set out in (a) of this section in a manner that would least likely cause harm or                                
04 detriment to the child after consideration of the circumstances, finances of each parent,                               
05 and age and needs of the child.  If it is not practicable to award Wednesday and                                        
06 weekend visitation rights because of travel distances, the court shall consider whether                                 
07 a period totaling more than 45 days during the school summer vacation period would                                      
08 be in the best interests of the child.                                                                                  
09  (d)  The court may vary from the schedule set out in (a) of this section if, after                                    
10 consideration of the age, circumstances, and needs of the child, the court finds that                                   
11 adherence to the schedule would cause harm or detriment to the child.  A variation                                      
12 under this subsection must be based solely on evidence in the record.  The court shall                                  
13 issue written findings of facts and an explanation of its reasoning for varying the                                     
14 schedule under this subsection.                                                                                         
15  (e)  In this section,                                                                                                 
16   (1)  "school Christmas vacation period" means from 6:00 o'clock in the                                               
17 evening on the last day of school before the beginning of the school Christmas                                          
18 vacation period until 8:00 o'clock in the evening on the day before the resumption of                                   
19 the school year;                                                                                                        
20   (2)  "school spring vacation period" means the period of time from 6:00                                              
21 o'clock in the evening on the last day of school before the school spring vacation until                                
22 8:00 o'clock in the evening on the day before school resumes;                                                           
23   (3)  "school summer vacation period" means the period of time from                                                   
24 6:00 o'clock in the evening on the second day after the last day of the spring school                                   
25 term until 8:00 o'clock in the evening on the seventh day before the day on which the                                   
26 fall school term begins;                                                                                                
27   (4)  "school Thanksgiving vacation period" means from 6:00 o'clock in                                                
28 the evening on the Wednesday before Thanksgiving until 8:00 o'clock in the evening                                      
29 on the following Sunday;                                                                                                
30   (5)  "visiting parent" means the parent who does not have primary                                                    
31 physical custody of the child according to a court order;                                                               
01   (6)  "weekend" means                                                                                                 
02   (A)  in the case of parents who reside 50 miles or fewer apart,                                                     
03 from 6:00 o'clock in the evening Friday until the beginning of the school day                                           
04 on Monday or, at the election of the visiting parent, from the end of the school                                        
05 day on Friday until the beginning of the school day on Monday;                                                          
06   (B)  in the case of parents who reside more than 50 miles but                                                       
07 less than 100 miles apart, from 6:00 o'clock in the evening Friday until 8:00                                           
08 o'clock in the evening Sunday or, at the election of the visiting parent, from                                          
09 the end of the school day on Friday until 8:00 o'clock in the evening Sunday;                                           
10   (C) in the case where a weekend period of visitation coincides                                                      
11 with a school holiday during the regular school term or with a federal, state,                                          
12 or local holiday during the school summer vacation period, the weekend period                                           
13 extends until 6:00 o'clock in the evening Monday on a Monday holiday or                                                 
14 begins at 6:00 o'clock in the evening Thursday for a Friday holiday, as                                                 
15 applicable.                                                                                                             
16  Sec. 25.20.106.  MINIMUM VISITATION SCHEDULE; OTHER                                                                   
17 SITUATIONS.  In a proceeding for custody and visitation of children where at least                                      
18 one child is younger than five years of age, the court shall establish a visitation                                     
19 schedule as similar as possible to that set out in AS 25.20.104 considering the age,                                    
20 circumstances, and needs of the child or children.                                                                      
21    * Sec. 3.  AS 25.20.110 is amended by adding a new subsection to read:                                               
22  (c) Intentional noncompliance with a court order to allow visitation with a                                           
23 child, a finding of contempt for noncompliance with a court order to allow visitation                                   
24 with a child, or a conviction of custodial interference in the third degree under                                       
25 AS 11.41.340 may constitute a material change in circumstances under (a) of this                                        
26 section.                                                                                                                
27    * Sec. 4.   AS 25.20.115 is amended to read:                                                                         
28  Sec. 25.20.115.  ATTORNEY FEE AWARDS IN CUSTODY AND                                                                   
29 VISITATION MATTERS.  Except as provided in AS 25.20.140(e), in [IN] an action                                         
30 to modify, vacate, or enforce that part of an order providing for custody of a child or                                 
31 visitation with a child, the court may, upon request of a party, award attorney fees and                                
01 costs of the action.  Except as provided in AS 25.20.140(e), in [IN] awarding                                         
02 attorney fees and costs under this section, the court shall consider the relative financial                             
03 resources of the parties and whether the parties have acted in good faith.                                              
04    * Sec. 5.  AS 25.20.140 is amended by adding new subsections to read:                                                
05  (d)  In addition to monetary damages under (b) of this section, the court may                                         
06   (1)  order that the parent with visitation rights be given additional                                                
07 visitation time with the child equal to the amount of time missed because of the other                                  
08 parent's noncompliance with visitation orders; however, if the custodial parent has                                     
09 previously, within three years, been found in contempt for noncompliance with an                                        
10 order allowing visitation, the additional amount of visitation time ordered under this                                  
11 paragraph may be equal to twice the amount of time missed because of the                                                
12 noncompliance;                                                                                                          
13   (2)  award to the parent with visitation rights reasonable expenses                                                  
14 incurred by the parent to locate or return a child and an additional sum in liquidated                                  
15 damages in the amount of $100; however, if the custodial parent has previously, within                                  
16 three years, been found in contempt for noncompliance with an order to allow                                            
17 visitation, the liquidated damages under this paragraph shall be $250.                                                  
18  (e)  If the court finds that an action under this section was brought in bad faith,                                   
19 the court shall order the moving party to the pay to the nonmoving party all costs, full                                
20 reasonable attorney fees, and liquidated damages of $100.                                                               
21    * Sec. 6.  MODIFICATION OF EXISTING ORDERS.  The enactment of AS 25.20.104                                           
22 or 25.20.106 under sec. 2 of this Act constitutes a change in circumstances requiring                                   
23 modification of an order under AS 25.20.110(a) that was made before the effective date of this                          
24 Act if application of AS 25.20.104 or 25.20.106 would result in an increase of visitation time                          
25 of at least 25 percent and the modification is in the best interests of the child.