CSHB 422(HES): "An Act relating to custody and visitation rights."
00CS FOR HOUSE BILL NO. 422(HES) 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) fails to comply with an order to allow visitation with the 13 child by another person after being found in contempt for failure to comply 14 with a visitation order; or
01 (B) has engaged in a pattern of intentional violation of court 02 orders to allow visitation by another person with the child. 03 (b) The defendant has an affirmative defense to conviction under (a) of this 04 section if the defendant shows by clear and convincing evidence that 05 (1) the defendant's purpose was to protect the child or the defendant 06 from imminent physical harm, the belief in the existence of the imminent physical 07 harm was reasonable, and the defendant sought the assistance of law enforcement 08 personnel, a public agency, or the court of any state before, or within a reasonable 09 time after, committing the acts giving rise to the charges; 10 (2) the complainant had, before the defendant committed the acts giving 11 rise to the charge, failed for a protracted period of time to exercise the complainant's 12 rights to physical custody or access to the child, failed to give reasonable notice to the 13 defendant of a desire to resume exercise of the complainant's rights to physical 14 custody or access, and neither failure was the result of the defendant's denial of access 15 to the complainant or denial to the complainant of knowledge of the whereabouts of 16 the defendant; 17 (3) the acts giving rise to the charges were consented to by the 18 complainant; or 19 (4) the defendant, after providing or making a good faith effort to 20 provide notice to the person entitled to access to the child, failed to provide access to 21 the child due to reasons that a reasonable person would believe were directly related 22 to the welfare of the child, and allowed access to the child in accordance with the 23 court order within a reasonable period of time. 24 (c) Custodial interference in the third degree is a class B misdemeanor except 25 that a person convicted under this section after previously being convicted under this 26 section or under a law in another jurisdiction with substantially similar elements is 27 guilty of a class A misdemeanor. 28 * Sec. 2. AS 25.20 is amended by adding new sections to read: 29 Sec. 25.20.102. NOTICE OF RELOCATION. (a) The court shall include as 30 a condition of a custody or visitation order a requirement that a party intending to 31 relocate the temporary or permanent residence of a child shall give advance written
01 notice of the intention to the court and the other party at least 30 days before the 02 intended relocation. The notice must be in the form and contain the information that 03 the court considers necessary under the circumstances. 04 (b) Notwithstanding (a) of this section, a party is not required to give 30 days' 05 notice of an intent to relocate a child to temporary residence in a shelter or safe home 06 that is part of a domestic violence or sexual assault program, as defined in 07 AS 18.66.900. However, the relocating party shall notify the other party of the 08 relocation within 24 hours after entering the shelter or safe home unless 09 (1) the other party is the alleged perpetrator of the domestic violence 10 or sexual assault causing the relocation; or 11 (2) the acceptance policy of the shelter or safe home prohibits the 12 relocating party from divulging the location of the shelter or safe home. 13 (c) Notwithstanding (a) of this section, a party is not required to give 30 days' 14 advance notice of relocation, but is required to give notice as soon as possible, upon 15 relocating a child 16 (1) due to eviction by a landlord; 17 (2) for the purpose of obtaining medical care for the party or a member 18 of the party's immediate family for an emergency life-threatening condition as certified 19 by a physician; or 20 (3) for the purpose of visiting a relative who is in an emergency life-threatening condition as certified by a 21 physician. 22 Sec. 25.20.104. MINIMUM VISITATION SCHEDULE. (a) Except as 23 provided in (b) and (c) of this section, in a proceeding in which child custody is 24 awarded to one parent and visitation rights are awarded to the other parent, including 25 a dissolution proceeding under AS 25.24.200(a) but excluding a dissolution proceeding 26 under AS 25.24.200(b), the court shall award the visiting parent the following 27 visitation rights: 28 (1) 29.5 percent of the days and nights of the year, with specific days 29 and nights determined by the parents, except as provided in (2) - (4) of this subsection; 30 (2) the Thanksgiving period every other year; 31 (3) the school Christmas vacation period occurring before 9:00 o'clock
01 in the morning on December 25th in the years in which the visiting parent has 02 visitation during the Thanksgiving vacation period; 03 (4) the school Christmas vacation period occurring after 9:00 o'clock 04 in the morning on December 25th in the years in which the visiting parent does not 05 have visitation during the Thanksgiving vacation period. 06 (b) The court may vary from the requirements under (a) of this section if, after 07 consideration of the age, circumstances, and needs of the child, the court finds that 08 adherence to the requirements would cause harm or detriment to the child. The court 09 may vary from the requirements under (a)(3) - (4) of this section upon agreement of 10 the parents or upon a finding that the travel required between the residences of the 11 parents would make the schedule in (a)(3) - (4) of this section impracticable. If the 12 court makes a finding of impracticability, the court shall award the visiting parent the 13 entire school Christmas vacation period in the years when the visiting parent does not 14 have Thanksgiving visitation rights under (a)(2) of this section. A variation under this 15 subsection must be based solely on evidence in the record. The court shall find the 16 facts specially and include an explanation of its reasoning for ordering a variance 17 under this subsection. 18 (c) The court shall decrease the percentage specified in (a)(1) of this section 19 at the request of the parent with visitation rights. 20 (d) In this section, 21 (1) "school Christmas vacation period" means from 6:00 o'clock in the 22 evening on the last day of school before the beginning of the school Christmas 23 vacation period until 8:00 o'clock in the evening on the day before the resumption of 24 the school year; if a child is not in school, "school Christmas vacation period" means 25 the vacation period of the public school system where the custodial parent resides; 26 (2) "Thanksgiving period" means from 6:00 o'clock in the evening on 27 the Wednesday before Thanksgiving until 8:00 o'clock in the evening on the following 28 Sunday; 29 (3) "visiting parent" means the parent who does not have physical 30 custody of the child according to a court order. 31 * Sec. 3. AS 25.20.110 is amended by adding a new subsection to read:
01 (c) Intentional noncompliance with a court order to allow visitation with a 02 child, a finding of contempt for noncompliance with a court order to allow visitation 03 with a child, or a conviction of custodial interference in the third degree under 04 AS 11.41.340 constitutes a rebuttable presumption that there has been a change in 05 circumstances justifying a modification under (a) of this section if the modification is 06 in the child's best interests. 07 * Sec. 4. AS 25.20.115 is amended to read: 08 Sec. 25.20.115. ATTORNEY FEE AWARDS IN CUSTODY AND 09 VISITATION MATTERS. Except as provided in AS 25.20.140(e), in [IN] an action 10 to modify, vacate, or enforce that part of an order providing for custody of a child or 11 visitation with a child, the court may, upon request of a party, award attorney fees and 12 costs of the action. Except as provided in AS 25.20.140(e), in [IN] awarding 13 attorney fees and costs under this section, the court shall consider the relative financial 14 resources of the parties and whether the parties have acted in good faith. 15 * Sec. 5. AS 25.20.140 is amended by adding new subsections to read: 16 (d) In addition to monetary damages under (b) of this section, the court may 17 (1) order that the parent with visitation rights be given additional 18 visitation time with the child equal to or more than the amount of time missed because 19 of the other parent's noncompliance with visitation orders; if the custodial parent has 20 previously, within three years, been found in contempt for noncompliance with an 21 order allowing visitation, the additional amount of visitation time ordered under this 22 paragraph shall be equal to at least twice the amount of time missed because of the 23 noncompliance; 24 (2) award to the parent with visitation rights reasonable expenses 25 incurred by the parent to locate or return a child and an additional sum in liquidated 26 damages in the amount of $100; however, if the custodial parent has previously, within 27 three years, been found in contempt for noncompliance with an order to allow 28 visitation, the liquidated damages under this paragraph shall be $250. 29 (e) If the court finds that an action under this section was brought in bad faith, 30 the court shall order the moving party to the pay to the nonmoving party all costs, full 31 reasonable attorney fees, and liquidated damages of $100.
01 * Sec. 6. AS 25.24.210(e) is amended to read: 02 (e) If the petition is filed by both spouses under AS 25.24.200(a), the petition 03 must state in detail the terms of the agreement between the spouses concerning the 04 custody of children, child support, visitation, spousal maintenance and tax 05 consequences, if any, and fair and just division of property, including retirement 06 benefits. Agreements on visitation rights must meet the requirements of 07 AS 25.20.104. Agreements on spousal maintenance and property division must fairly 08 allocate the economic effect of dissolution and take into consideration the factors listed 09 in AS 25.24.160(a)(2) and (4). In addition, the petition must state 10 (1) the respective occupations of the petitioners; 11 (2) the income, assets, and liabilities of the respective petitioners at the 12 time of filing the petition; 13 (3) the date and place of the marriage; 14 (4) the name, date of birth, and current marital, educational, and 15 custodial status of each child born of the marriage or adopted by the petitioners who 16 is under the age of 19; 17 (5) whether the wife is pregnant; 18 (6) whether either petitioner requires medical care or treatment; 19 (7) whether a domestic violence complaint has been filed during the 20 marriage by a member of the household; 21 (8) whether either petitioner has received the advice of legal counsel 22 regarding a divorce or dissolution; 23 (9) other facts and circumstances that the petitioners believe should be 24 considered; 25 (10) that the petition constitutes the entire agreement between the 26 petitioners; and 27 (11) any other relief sought by the petitioners. 28 * Sec. 7. AS 25.24.230(b) is amended to read: 29 (b) If the petition is filed under AS 25.24.200(a) and is subject to 30 AS 25.24.220(h), the court may grant the spouses a final decree of dissolution and 31 shall order other relief as provided in this section if the court, upon consideration of
01 the information contained in the petition and the testimony of the spouse or spouses 02 at the hearing, finds that 03 (1) the spouses understand fully the nature and consequences of their 04 action; 05 (2) the written agreements between the spouses concerning child 06 custody, child support, and visitation comply with the requirements of AS 25.20.104 07 and are in the best interest of the children of the marriage, constitute the entire 08 agreement of the parties on child custody, child support, and visitation, and, as 09 between the spouses, are just; 10 (3) the written agreements between the spouses concerning spousal 11 maintenance and tax consequences, if any, division of property, including retirement 12 benefits, and allocation of obligations are just and constitute the entire agreement 13 between the parties; 14 (4) the spousal maintenance and division of property fairly allocate the 15 economic effect of dissolution and take into consideration the factors listed in 16 AS 25.24.160(a)(2) and (4); 17 (5) each spouse entered the agreement voluntarily and free from the 18 coercion of another person; and 19 (6) the conditions in AS 25.24.200(a) have been met. 20 * Sec. 8. MODIFICATION OF EXISTING ORDERS. The enactment of AS 25.20.104 21 under sec. 2 of this Act constitutes a change in circumstances requiring modification of an 22 order under AS 25.20.110(a) that was made before the effective date of this Act if 23 (1) a parent requests modification; 24 (2) application of AS 25.20.104 would result in an increase of visitation time; 25 and 26 (3) the modification is in the best interests of the child.