When Parent's Fight: Alaska's Presumption Against Awarding Custody to Perpetrators of Domestic Violence

• Citation: Vol. 25
• Publication year: 2008

§ 25 Alaska L. Rev. 263. WHEN PARENT'S FIGHT: ALASKA'S PRESUMPTION AGAINST AWARDING CUSTODY TO PERPETRATORS OF DOMESTIC VIOLENCE

Alaska Law Review
Volume 25, No. 2, December 2008
Cited: 25 Alaska L. Rev. 263

When Parent's Fight: Alaska's Presumption Against Awarding Custody to Perpetrators of Domestic Violence

Lisa Bolotin ^[*]

ABSTRACT

Because of the negative effects domestic violence has on a child's development, many states, including Alaska, have adopted a rebuttable presumption that awarding custody to a parent who has committed domestic violence is not in the child's best interests. Once the presumption is triggered, the parent who perpetrated domestic violence cannot be awarded any form of custody. To invoke the presumption, a certain level of domestic violence has to have been committed, the victim must be a domestic living partner, and the violence must be proved by a preponderance of the evidence. The presumption may be rebutted by demonstrating rehabilitation, lack of substance abuse, and that the best interests of the child require custody. The presumption is effective because it encourages victims to leave their abusers, ensures that courts consider domestic violence in their custody determinations, nullifies other considerations that disfavor the abused parent, and simplifies custody cases. The Alaska statute could be improved, however, by clarifying key terms, allowing children to raise the presumption, and providing judges less discretion in undoing the presumption's effects.

TABLE OF CONTENTS

INTRODUCTION........................................................ 264

I. THE RELEVENCE OF DOMESTIC VIOLENCE IN DETERMINING CHILD CUSTODY................................................... 265

A. Presumption of Joint Custody................................. 265

B. When Joint Custody Is Not in the Child's Best Interests: Evidence of Abuse............................................ 268

1. Potential Physical Harm................................... 269

2. Detriment to Child's Development.......................... 270

3. Inability to Co-Parent.................................... 272

II. THE POLITICAL AND HISTORICAL CONTEXT OF REBUTTABLE PRESUMPTIONS.................................................... 272

III. OPERATION OF THE ALASKA AMENDMENT............................... 273

A. Effect of Presumption........................................ 275

B. Presumption and the Friendly Parent Provision................ 278

C. Invoking the Presumption..................................... 280

1. Requirement that Level of Violence Amount to a History of Perpetrating Violence.................................. 280

2. Requirement that Victim Be a Domestic Living Partner...... 281

3. Requirement that Violence Be Proved by a Preponderance of the Evidence........................................... 284

4. Rebutting the Presumption................................. 285

IV. THE ALASKA STATUTE SUCCESSFULLY ADDRESSES SOME CONCERNS OVER THE EFFECTS OF PARENTING BY PERPETRATORS OF DOMESTIC VIOLENCE............................................ 287

A. Existence of a Rebuttable Presumption........................ 287

B. Ease of Invoking the Presumption............................. 292

C. Effect of Presumption on Visitation Benefits Children........ 296

V. IMPROVING THE ALASKA CUSTODY STATUTES........................... 296

A. Allow the Child to Raise the Presumption..................... 297

B. Clarify the Meaning of "Domestic Living Partner"............. 298

C. Limit Judicial Discretion to Allow Unsupervised Visitation with a Perpetrator of Domestic Violence........... 299

CONCLUSION........................................................... 301

INTRODUCTION

Changes in child custody laws are commonplace in the United States, as legislatures continually search to serve the best interests of the child. The high stakes and high emotions of contested custody cases present the greatest challenges. In these cases, the existence of domestic violence further compounds the complexity of making a decision that actually serves the child's best interests. Following a litany of social science research revealing the negative effects domestic violence may have on a child's development, states began strengthening the language in their child custody statutes to ensure that the existence of domestic violence is appropriately considered in custody decisions. One approach has been to create a rebuttable presumption that awarding custody to a parent who has perpetrated a certain level of domestic violence is not in a child's best interests. Alaska adopted such a presumption in 2004.

This Note will explain and critique Alaska's presumption and its possible effects on child custody decisions. Part I of this Note explains the theory behind two custody presumptions. Part II explores the historical context of rebuttable presumptions. Part III explains the operation of the Alaska rebuttable presumption: its effect on custody decisions, how it may be invoked, and when it may be rebutted. Finally, Parts IV and V explore the strengths and weaknesses of the statute and argue that while the presumption may ultimately protect victims of domestic violence, either the courts or the legislature must further define key terms of the statute. Throughout this Note, frequent comparisons with custody laws in other states will help highlight the strengths, weaknesses, and underlying policy of the Alaska rebuttable presumption and will provide the basis for interpreting and critiquing the Alaska law.

I. THE RELEVANCE OF DOMESTIC VIOLENCE IN DETERMINING CHILD CUSTODY

A. Presumption of Joint Custody

Courts attempt to serve the child's best interests when making custody decisions. ^[1] Legislatures are free to enumerate factors for courts to consider when deciding what arrangements will be most beneficial to a child. Although today nearly every state requires courts to consider evidence of domestic violence as relevant to custody decisions, many legislatures also express a preference for joint physical custody. ^[2] With the advent of no-fault divorce in the 1970s, courts shifted away from examining the relationship between parents when making child custody decisions and instead looked toward the future to determine their ability to parent. ^[3] Unless a court foresaw that a past history of abuse would affect the child's best interests--which it generally did not--domestic violence was not considered in making custody decisions. ^[4] The preference for joint custody is rooted not only in the belief that co- parenting is beneficial to a child of divorce, but also in the desire to protect parents' rights to maintain relationships with their children. ^[5]

First, joint physical and legal custody arrangements may be in a child's best interests. Studies show that children adjust better to divorce and exhibit fewer behavioral problems when both parents share social and financial responsibility for the child than when only one parent bears those responsibilities. ^[6] Social scientists also suggest educational and social benefits: children who interact with their fathers post-divorce have higher IQs, greater success in school, and lower drop-out and truancy rates than children who do not. ^[7] Further, absence of the non- custodial parent may negatively affect the psychological and emotional development of children. ^[8] However, when parents are unable to cooperate with each other after a divorce, the benefits children receive from co-parenting may cease to exist. ^[9]

Second, joint custody protects both parents' rights to maintain a parental relationship with their children. In the mid-1970s, child custody laws favored the mother: tender-years presumptions awarded custody of young children to mothers, absent a showing that she was unfit. ^[10] Following a vocal fathers' rights movement, those presumptions were abolished in favor of those providing for joint custody. ^[11] By 1990, the maternal preference had ceased to exist in all but five states. ^[12]

B. When Joint Custody Is Not in the Child's Best Interests: Evidence of Abuse ^[13]

When domestic violence is present in a household, physical contact with the abusive parent may not be in the best interests of the child, even when abuse was never directed at the child. ^[14] The presumption that joint custody is in a child's best interests assumes co-parenting produces benefits that are not present when one parent acts as the sole decision-maker. Those benefits--both those to the child and those to the parents--are not present where the parents have been in an abusive relationship. ^[15] First, the possibility of future physical harm indicates that custody with a perpetrator of domestic violence is not in a child's best interests. Second, ongoing contact with the abusive parent may be detrimental to the child's development. Third, requiring hostile parents to remain in contact can harm the parents and negate the positive effects of co-parenting.

1. Potential Physical Harm. Custody with a perpetrator of domestic violence is not in a child's best interests because it is more likely to result in physical harm to the child. Perpetrators of domestic violence are more likely than non-perpetrators to abuse their children. A review of more than thirty studies shows that child abuse and violence toward another household member are linked between 30%...