The Court Case and Resolution Options

Type of Court Case | Resolution Options | The Details in a Custody Order | When to File the Parenting Plan | The Best Interest Factors | International Issues

Type of Court Case

Dissolution or Uncontested Case

If you and the other parent work out all of the details ahead of time and reach agreement on all legal issues in your case, you may file:

• a dissolution
• uncontested divorce, or
• uncontested custody case (if you are not married to the other parent)

These kinds of cases go much faster than contested divorce and custody cases because there is usually less paperwork filed and only 1 short court hearing.

Divorce or Custody Case

If you cannot work all or any of the details out with the other parent before filing the papers in court, you may file the multi-step divorce or custody case. Divorce or custody cases generally have the following steps and may include motions:

• Complaint filed by the Plaintiff
• Answer filed by the Defendant
• 1st meeting in court with the judge (may be called a "pre-trial hearing," "trial-setting conference," "status conference") at which your next step is discussed:
  • Parties have already reached an agreement that they place on the record and submit final documents; case closed.
  • Settlement Conference with a judge
  • Collaborative law process
  • Negotiations to continue with the help of a lawyer or counselor
  • A later status conference is set to see if the parties have reached agreement
  • Mediation with a court or private mediator
  • Trial without custody investigator report
  • Trial with custody investigator report
• Final Decision made by:
  • the judge if the parties cannot agree
  • agreement of the parties and approved by the judge
• written Findings of Fact Conclusions of Law, Decree and Child Support Order signed by the judge
• Case Closed

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Resolution Options

It is almost always better for children if parents can find a way to work out custody and visitation issues through an agreement instead of having a contested court case with a full-blown trial where the judge makes the final custody decision.

Final Orders by Agreement of the Parents

People who successfully negotiate an agreement in custody matters often use a number of the following resources:

• Parent Education
• Legal Education
• Mental Health Professionals
• Collaborative Law Professionals
• Lawyers
• Court Custody Investigators
• Private Custody Investigators – ask your lawyer
• Judicial Settlement Conferences – ask your Judge
• Parenting and Custody Mediators – check with your local court and on-line directories

Final Orders by Order of the Judge

However, a judge has to decide custody because an agreement between the parties is not possible due to domestic violence, substance abuse, mental health issues, neglect, other safety issues or just plain stubbornness. If you cannot agree with the other parent on your own or with the help of one of the professionals listed above, a trial will be necessary.

If you have a trial, the judge will listen to you and the other parent put on your individual cases, by providing evidence through testimony and exhibits. You can prepare for your trial by reading the Hearing and Trial Preparation information. From the information presented at trial, the judge will make a decision according to the best interest factors and issue custody, visitation and support orders. You and the other parent must follow these orders, which will set out the schedule and rules for you to follow when it comes to your children.

The custody order can be modified or changed only if:

• the two parents agree on a change and take it back to court for the judge’s approval, or
• the parents cannot agree, and one parent can prove there is a legally recognized change in circumstances that requires a change in the custody that is in the children’s best interests.

Read more about modifying child custody, visitation or child support.

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The Details in a Custody Order

As described earlier, a custody order usually includes the following:

• Parenting Schedule: sets out specific days and times for children to be with each parent; who will transport the children, where will the transfer happen, who will pay for any travel necessary for visits. This is what the forms call physical custody.
• Decision Making: sets out how decisions will be made with respect to health, education and social issues for children. Will the parents make them together or should one parent have decision making authority? This is what the forms call legal custody.
• Travel: states whether and under what circumstances children can travel out-of-state or internationally.
• Financial Matters: identifies which parent will apply for PFDs, what will happen to those funds, and which parent will claim children for tax purposes in which years.
• Health Insurance: states how children get health insurance, who will pay and how parents will handle uninsured costs.
• Child Support: requires that children have adequate financial support as required under Civil Rule 90.3. The custody order has a child support section, but there is also a separate child support order.

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When to File the Parenting Plan

Note: Some courts require the custody and visitation or parenting plan to be on a particular form, while others do not. Be sure to check with your local court.

If you are filing a dissolution, you will have to have the details of your parenting plan completely worked out and agreed upon before you file.

If you are filing a divorce or custody case, it is likely that you disagree on the details of the parenting plan so this will be a "work in progress" as your case moves along. However, you should include the details of your proposed plan in your Complaint or Answer (and some court locations require you to do so).  As the case moves along, and you explore whether you can and the other parent can reach agreement, the plan will change.

Usually, people file updated custody and visitation or parenting plans shortly before their trial or settlement conference as part of their settlement or pre-trial brief. The scheduling order will tell you when this is due.

However, if things are very heated between you and the other parent, making things unstable for the kids, you might decide you need to do a Motion for Interim Custody, which how to ask for temporary orders before the trial.

• Motion and Affidavit for Interim Orders - With Children, SHC-1100 Word | PDF
• Order on Interim Orders - With Children, SHC-1102 Word | PDF

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How do the best interests factors fit in?

The custody and visitation parenting plan adopted by the court must be in the child(ren)’s best interests. The judge’s decision will be guided by the best interest factors which are listed in Alaska Statute 25.24.150(c):

The court shall determine custody in accordance with the best interests of the child under AS 25.20.060 - 25.20.130. In determining the best interests of the child the court shall consider:

1. the physical, emotional, mental, religious, and social needs of the child;
2. the capability and desire of each parent to meet these needs;
3. the child's preference if the child is of sufficient age and capacity to form a preference;
4. the love and affection existing between the child and each parent;
5. the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
6. the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the other parent and the child, except that the court may not consider this willingness and ability if one parent shows that the other parent has sexually assaulted or engaged in domestic violence against the parent or a child, and that a continuing relationship with the other parent will endanger the health or safety of either the parent or the child;
7. any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
8. evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
9. other factors that the court considers pertinent.

The Best Interests Affidavit includes the factors so you can explain why your proposed custody and visitation plan is in your child(ren)'s best interests:

• Best Interests Affidavit, SHC-1125 Word | PDF

You should include this affidavit, or one that is similar, whenever you file a custody and visitation or parenting plan in a divorce or custody case so you can tell the court why your plan is in your child(ren)'s best interests. You do not have to include a best interests affidavit in a dissolution.

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International Issues

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Rev. 23 September 2015 © Alaska Court System www.courts.alaska.gov Contact Us

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