Revisor’s notes. —

The provisions of this title were redrafted in 1982 and 1983 to remove personal pronouns pursuant to sec. 4, ch. 58, SLA 1982 and in 1982, 1983, 1991, 1995, 2006, and 2014 to make other minor word changes under AS 01.05.031 .

Collateral references. —

Arnold H. Rutkin, Family Law and Practice (Matthew Bender).

Chapter 05. Alaska Marriage Code.

Cross references. —

For provisions related to community property, see AS 34.77.

Collateral references. —

41 Am. Jur. 2d, Husband and Wife, § 1 et seq.

52 Am. Jur. 2d, Marriage, § 1 et seq.

41 C.J.S., Husband & Wife, § 1 et seq.

55 C.J.S., Marriage, § 1, et seq.

Article 1. Requirements for Marriage.

Collateral references. —

4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq.

52 Am. Jur. 2d, Marriage, §§ 9-92.

Proofs: common law marriage, 3 Am. Jur. POF, pp. 269-297; marriage, 7 Am. Jur. POF, pp. 617-644.

55 C.J.S. Marriage, §§ 1, 9 et seq.

Liability of one putative spouse to other for wrongfully inducing entry into or cohabitation under illegal, void, or nonexistent marriage, 72 ALR2d 956.

Marriage between persons of the same sex, 63 ALR3d 1199.

Recognition by foreign state of marriage which, though invalid where contracted, would have been valid if contracted within foreign state, 82 ALR3d 1240.

Sec. 25.05.010. Marriage a civil contract. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.011. Civil contract.

  1. Marriage is a civil contract entered into by one man and one woman that requires both a license and solemnization. The man and the woman must each be at least one of the following:
    1. 18 years of age or older and otherwise capable;
    2. qualified for a license under AS 25.05.171 ; or
    3. a member of the armed forces of the United States while on active duty.
  2. A person may not be joined in marriage in this state until a license has been obtained for that purpose as provided in this chapter.  A marriage performed in this state is not valid without solemnization as provided in this chapter.

History. (§ 1 ch 58 SLA 1963; am § 9 ch 245 SLA 1970; am § 92 ch 127 SLA 1974; am § 1 ch 28 SLA 1975; am § 1 ch 21 SLA 1996)

Notes to Decisions

License mandatory. —

Provision requiring a marriage license is mandatory and not merely directive. Edwards v. Franke, 364 P.2d 60 (Alaska 1961) (Decided under former § 21-1-1, ACLA 1949)

Alaska’s same-sex marriage laws violate equal protection and due process clauses of Fourteenth Amendment. —

Alaska’s ban on same-sex marriage and refusal to recognize same-sex marriages lawfully entered in other states as set forth in Alaska Const. art. 1, § 25 and AS §§ 25.05.011, 25.05.013, is unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution. No state interest provides exceedingly persuasive justification for the significant infringement of rights that they inflict upon homosexual individuals. Hamby v. Parnell, 56 F. Supp. 3d 1056 (D. Alaska 2014).

And marriage relationship without license is invalid. —

A marriage relationship sought to be effected without the benefit of a marriage license is invalid. Edwards v. Franke, 364 P.2d 60 (Alaska 1961) (Decided under former § 21-1-1, ACLA 1949)

Common law marriages are not valid in Alaska. Burgess Constr. Co. v. Lindley, 504 P.2d 1023 (Alaska 1972); United States v. Lustig, 555 F.2d 737 (9th Cir. Alaska 1977), cert. denied, 434 U.S. 926, 98 S. Ct. 408, 54 L. Ed. 2d 285 (U.S. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 889, 54 L. Ed. 2d 795 (U.S. 1978).

Consideration of premarital cohabitation in making property division. —

Where parties were legally married for only 34 months of an eight-year relationship, it was error for the trial court to find that they were married for eight years; the court could consider the entire relationship, including periods of premarital cohabitation, in making a property division, so long as it observed the distinction between assets acquired prior to and during coverture. Harrelson v. Harrelson, 932 P.2d 247 (Alaska 1997).

“Wife” defined. —

“Wife” has not been defined statutorily and has no technical meaning in the context of the Workers’ Compensation Act, AS 23.30.005 et seq., so the Supreme Court of Alaska looks to common usage, where the word ordinarily refers to a married woman. “Spouse” is commonly known to mean husband or wife; by the same token, “wife” is commonly known to mean “spouse,” or a “married woman,” and “marriage” has been defined by this section of the Alaska Marriage Code. Ranney v. Whitewater Eng'g, 122 P.3d 214 (Alaska 2005).

When divorced wife is “married” for purpose of Workmen’s Compensation Act. —

A divorced wife is “married” for the purpose of the Workmen’s Compensation Act where the divorce decree required her deceased husband to contribute to her support. Burgess Constr. Co. v. Lindley, 504 P.2d 1023 (Alaska 1972).

Discriminatory benefits programs held violative of equal protection to same-sex couples. —

Benefits programs facially discriminated against same-sex domestic partners by covering married public employees but not domestic partners because, unlike opposite-sex domestic partners, same-sex domestic partners were barred from marriage under Alaska Const. art. I, § 25, as well as subsection (a) of this section, and thus were absolutely precluded from eligibility. The policy was not substantially related to government interests and thus violated equal protection under Alaska Const. art. I, § 1. Alaska Civ. Liberties Union v. State, 122 P.3d 781 (Alaska 2005).

Collateral references. —

Marriage between persons of the same sex, 81 ALR5th 1, 1 ALR Fed 2d1.

Sec. 25.05.013. Same-sex marriages.

  1. A marriage entered into by persons of the same sex, either under common law or under statute, that is recognized by another state or foreign jurisdiction is void in this state, and contractual rights granted by virtue of the marriage, including its termination, are unenforceable in this state.
  2. A same-sex relationship may not be recognized by the state as being entitled to the benefits of marriage.

History. (§ 2 ch 21 SLA 1996)

Cross references. —

For constitutional provision on marriage, see art. I, sec. 25, Constitution of the State of Alaska.

Editor’s notes. —

Section 3, ch. 21, SLA 1996 provides that this section “applies to all marriages entered into in other jurisdictions, whether entered into before, on, or after May 7, 1996.”

Notes to Decisions

Constitutionality. —

Alaska’s ban on same-sex marriage and refusal to recognize same-sex marriages lawfully entered in other states as set forth in Alaska Const. art. 1, § 25 and AS §§ 25.05.011, 25.05.013, is unconstitutional as a deprivation of basic due process and equal protection principles under the Fourteenth Amendment of the U.S. Constitution. No state interest provides exceedingly persuasive justification for the significant infringement of rights that they inflict upon homosexual individuals. Hamby v. Parnell, 56 F. Supp. 3d 1056 (D. Alaska 2014).

Cited in

Harris v. Millennium Hotel, 330 P.3d 330 (Alaska 2014).

Stated in

Brause v. Dep't of Health & Soc. Servs., 21 P.3d 357 (Alaska 2001).

Collateral references. —

Marriage between persons of the same sex, 81 ALR5th 1, 1 ALR Fed 2d1.

Sec. 25.05.020. Prohibited marriages. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.021. Prohibited marriages.

Marriage is prohibited and void if performed when

  1. either party to the proposed marriage has a husband or wife living; or
  2. the parties to the proposed marriage are more closely related to each other than the fourth degree of consanguinity, whether of the whole or half blood, computed according to rules of the civil law.

History. (§ 1 ch 58 SLA 1963)

Cross references. —

For criminal provisions prohibiting unlawful marrying, see AS 11.51.140 ; for provisions declaring incestuous or bigamous marriages void, see AS 25.24.020 .

Notes to Decisions

Cited in

Batey v. Batey, 933 P.2d 551 (Alaska 1997).

Collateral references. —

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 ALR3d 759.

Enforcement of antenuptial contract or settlement conditioned upon marriage, where marriage was subsequently declared void, 46 ALR3d 1403.

Sec. 25.05.030. Voidable marriages. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.031. Voidable marriages.

If either party to a marriage is incapable of consenting to it at the time of the marriage for want of marriageable age of consent or sufficient understanding, or if the consent of either party is obtained by force or fraud, or if either party fails to consummate the marriage, the marriage is voidable but only at the suit of the party under the disability or upon whom the force or fraud is imposed.

History. (§ 1 ch 58 SLA 1963; am § 3 ch 3 SLA 1974)

Cross references. —

For provisions specifying what marriages may be declared void, see AS 25.24.030 .

Notes to Decisions

Sufficient mental capacity validates marriage. —

A marriage is valid if at the time of its solemnization the party afterwards seeking to have it declared void had mental capacity sufficient to comprehend the nature of the business in which he was engaged and to understand its quality and consequences. Coleman v. Coleman, 85 Or. 99, 166 P. 47 (1917), construing similar Oregon statute.

Divorce suit for concealment of pregnancy barred by sexual commerce before marriage. —

Sexual commerce between a man and a woman before marriage bars a suit for divorce on the ground of fraud by the woman on account of concealment of her pregnancy. Westfall v. Westfall, 100 Or. 224, 197 P. 271 (1921), construing similar Oregon statute.

Regardless of the paternity of the offspring. —

Where husband had sexual relations with his wife before marriage, and knew she was pregnant, possibly by another, at the time of the wedding, he was not entitled to divorce on grounds of fraud. Westfall v. Westfall, 100 Or. 224, 197 P. 271 (1921), construing similar Oregon statute.

Marriage upheld. —

Probate court could not declare a marriage void after the wife had died even though the estate sought to invalidate the marriage because the wife was incompetent and the husband had fraudulently induced her to enter into the marriage. Riddell v. Edwards, 76 P.3d 847 (Alaska 2003).

Collateral references. —

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest, 14 ALR2d 624.

Power to grant annulment of marriage against nonresident on constructive service, 43 ALR2d 1086.

Limitation of actions for annulment of marriage, 52 ALR2d 1163.

Necessity and sufficiency of corroboration of plaintiff’s testimony concerning ground for annulment of marriage, 71 ALR2d 620.

Mental capacity to marry, 82 ALR2d 1040.

Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 ALR2d 483.

Sec. 25.05.040. Matters insufficient to render marriages void. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.041. Matters insufficient to render marriage voidable.

  1. If a marriage is in other respects lawful and is consummated with the full belief on the part of the persons married, or either of them, that they have been lawfully joined in marriage, then the marriage is not voidable for any of the following reasons:
    1. the licensing officer did not have jurisdiction to issue the license;
    2. there was an omission, informality, or irregularity of form in the application for the license or in the license itself;
    3. either or both witnesses to the marriage were incompetent;
    4. the marriage was solemnized after the expiration date of the license;
    5. there were no witnesses to the marriage if the valid license was issued and if the solemnization of the marriage can be otherwise proven.
  2. If a license has been issued and the marriage solemnized as provided in this chapter and the parties to it have immediately thereafter assumed the habit and repute of husband and wife and have continued to cohabit as husband and wife for one year or until the death of either of them, the marriage shall not be void or voidable solely on the ground the license cannot be produced.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.050. Effect of existing former marriage. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.051. Effect of existing former marriage.

If, during the lifetime of a husband or wife with whom a marriage is still in force, a person remarries and the parties to the subsequent marriage live together as husband and wife, and one of the parties to the subsequent marriage believes in good faith that the former husband or wife is dead or that the former marriage has been annulled or dissolved by a divorce or is without knowledge of the former marriage, then after the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, they are legally married from the time of removal of the impediment, and the issue of the subsequent marriage are the legitimate issue of both parents, whether born before or after the removal of the impediment.

History. (§ 1 ch 58 SLA 1963)

Notes to Decisions

Good faith requirement. —

Where the putative wife lacked a good faith belief in the validity of the marriage at its inception, she could not take advantage of the protections afforded a putative spouse by this section. Batey v. Batey, 933 P.2d 551 (Alaska 1997).

Sec. 25.05.060. Physician’s certificate. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.061. Marriage without license.

A marriage contracted after January 1, 1964, is void unless a license has first been obtained as provided in this chapter. If the parties to a marriage void for failure to obtain a license validate the marriage by complying with the requirements of this chapter, the issue of the void marriage are legitimate.

History. (§ 1 ch 58 SLA 1963)

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

Collateral references. —

Validity of solemnized marriage as affected by absence of license required by statute, 61 ALR2d 847.

Sec. 25.05.070. Certificate to be accompanied by laboratory report. [Repealed, § 2 ch 58 SLA 1963.]

Article 2. Licensing Officers.

Collateral references. —

52 Am. Jur. 2d, Marriage, §§ 31-37.

55 C.J.S., Marriage, §§ 27-35.

Sec. 25.05.071. Persons to issue license.

A licensing officer is the only official who may issue marriage licenses under this chapter.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.080. Department to furnish forms. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.081. Marriage commissioners.

The presiding judge in each judicial district may, if the public interest requires, appoint one or more suitable persons as marriage commissioners. The presiding judge shall describe the marriage commissioner’s area of jurisdiction in the order of appointment. A marriage commissioner may, within that jurisdiction, solemnize marriages in the same manner as a district judge or magistrate and may exercise any power, other than the power to issue marriage licenses, necessarily incident to the duties of a marriage commissioner. The clerk of court shall issue to the marriage commissioner a certified copy of the order of appointment and send a copy of it to the bureau.

History. (§ 1 ch 58 SLA 1963; am § 3 ch 24 SLA 1966; am § 4 ch 79 SLA 1997)

Administrative Code. —

For administration, see 7 AAC 5, art. 1.

Sec. 25.05.090. Department to approve tests, laboratories. [Repealed, § 2 ch 58 SLA 1963.]

Article 3. Procedure to Obtain a License.

Collateral references. —

52 Am. Jur. 2d, Marriage, §§ 31-37.

55 C.J.S., Marriage, §§ 27-29.

Sec. 25.05.091. Application for license; disclosure for child support purposes.

  1. One of the contracting parties to a prospective marriage shall, at least three days before the time of issuance, file with the licensing officer written, verbal, or telegraphic application for a license.  Before issuance of the license, each contracting party shall make a statement under oath that the contemplated marriage meets the requirements of law, giving the names, relationship if any, residence, occupation, and age of each party; naming guardians of any party under the legal age for marriage; and describing any prior marriage of either party, and the manner of dissolution of it.  This statement may be made and executed before a notary public or postmaster who shall certify it to the licensing officer.
  2. In addition to the requirements of (a) of this section, each contracting party to the prospective marriage shall provide to the licensing officer the party’s social security number, if any. Upon request, the licensing officer shall provide a social security number provided under this subsection to the child support services agency created in AS 25.27.010 , or the child support enforcement agency of another state, for child support purposes authorized under law.

History. (§ 1 ch 58 SLA 1963; am § 1 ch 134 SLA 1984; am § 35 ch 87 SLA 1997)

Revisor’s notes. —

In 2004, “child support enforcement agency created in AS 25.27.010 ” was changed to “child support services agency created in AS 25.27.010 ” in (b) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

Sec. 25.05.100. Use of laboratory reports. [Repealed, § 2 ch 58 SLA 1963.]

Secs. 25.05.101, 25.05.105. Premarital certificate; prescribed tests. [Repealed, § 4 ch 134 SLA 1984.]

Sec. 25.05.110. Penalty for violation. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.111. Issuance of license.

  1. A marriage license may not be issued unless both of the contracting parties are identified to the satisfaction of the licensing officer.  If all requirements have been met, and there is no legal objection to the contemplated marriage, and neither party is under the influence of intoxicating liquor or otherwise incapable of understanding the seriousness of the proceeding, the licensing officer shall issue a license.
  2. With a license issued under (a) of this section, the licensing officer shall also give to the parties written information about fetal alcohol effects and the fetal health effects of chemical abuse and battering during pregnancy. The Department of Health and Social Services shall prepare or obtain this information and submit it in distributable form to each licensing officer in the state.

History. (§ 1 ch 58 SLA 1963; am § 2 ch 144 SLA 1990)

Sec. 25.05.120. Premarital certificate noted on license. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.121. Marriage license.

The marriage license issued by a licensing officer in this state authorizes the marriage ceremony to be performed anywhere in the state. The license shall be directed “to any person authorized by the laws of this state to solemnize marriage,” and shall authorize that person to solemnize marriage between the parties identified by the license within three months of the date of the license. If either party is not of legal age for marriage, that party’s age and the fact of the consent of the parents or guardian of the underaged party shall be stated. If either party has previously been married, the number of previous marriages shall be stated. The registrar may require other matter necessary to identify the parties to be included in the license. The issuance of a license does not remove or dispense with any legal disability, impediment, or prohibition rendering marriage between the parties illegal, and a statement to that effect shall be included in the license.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.130. Waiver of examination and laboratory test. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.131. Laboratory reports of infectious or heritable diseases. [Repealed, § 4 ch 134 SLA 1984.]

Sec. 25.05.140. Failure to comply is misdemeanor. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.141. Laboratory results confidential. [Repealed, § 4 ch 134 SLA 1984.]

Sec. 25.05.150. License required. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.151. Tests and laboratories. [Repealed, § 4 ch 134 SLA 1984.]

Sec. 25.05.160. License to parties under age of consent. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.161. Waiver of waiting period.

If a three-day waiting period would result in undue hardship or delay in an individual case, the licensing officer may waive the three-day requirement.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.170. Penalty for unlawful issuance. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.171. Persons capable of consenting to marriage: Minimum ages, and consent of parents or guardian.

  1. A person who has reached the age of 16 but is under the age of 18 shall be issued a marriage license if the written consent of the parents, the parent having actual care, custody, and control, or a guardian of the underaged person is filed with the licensing officer issuing the marriage license under AS 25.05.111 .
  2. A superior court judge may grant permission for a person who has reached the age of 14 but is under the age of 18 to marry and may order the licensing officer to issue the license if the judge finds, following a hearing at which the parents and minor are given the opportunity to appear and be heard, that the marriage is in the best interest of the minor and that either
    1. the parents have given their consent; or
    2. the parents are
      1. arbitrarily and capriciously withholding consent;
      2. absent or otherwise unaccountable;
      3. in disagreement among themselves on the question; or
      4. unfit to decide the matter.

History. (§ 1 ch 58 SLA 1963; am § 93 ch 127 SLA 1974; am § 2 ch 28 SLA 1975)

Notes to Decisions

Cited in

RLR v. State, 487 P.2d 27 (Alaska 1971).

Sec. 25.05.180. Blank forms to be prescribed and furnished. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.181. Waiver order. [Repealed, § 4 ch 134 SLA 1984.]

Sec. 25.05.190. Contents of license and effect of issuance. [Repealed, § 2 ch 58 SLA 1963.]

Article 4. Forms, Records, and Reports.

Collateral references. —

52 Am. Jur. 2d, Marriage, §§ 31-37.

55 C.J.S., Marriage, § 35.

Sec. 25.05.191. Marriage license application.

A licensing officer shall make available an application for a marriage license for completion by the parties who wish to be married. The officer shall keep the completed applications, a record of licenses issued, and all other information that the officer is required by law to obtain. These records shall be kept in the office of the licensing officer and shall be open for public inspection or examination during normal office hours.

History. (§ 1 ch 58 SLA 1963; am § 3 ch 28 SLA 1975; am § 5 ch 79 SLA 1997)

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

Sec. 25.05.200. Marriage in violation of statute. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.201. Notes on docket. [Repealed, § 4 ch 134 SLA 1984.]

Sec. 25.05.210. Solemnization by de facto minister or judicial officer or according to established ritual valid. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.211. Reports by marriage commissioner. [Repealed, § 13 ch 79 SLA 1997.]

Sec. 25.05.220. Who may solemnize. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.221. Forms.

  1. Forms for application, statements, consent of parents, affidavits, licenses, and other forms necessary to comply with this chapter shall be prescribed by the registrar and provided at the expense of the state. The registrar shall furnish all necessary forms to each licensing officer.
  2. The registrar shall supervise the record work and required reporting of the licensing officers.

History. (§ 1 ch 58 SLA 1963; am § 7 ch 103 SLA 1971; am § 2 ch 134 SLA 1984; am § 6 ch 79 SLA 1997)

Sec. 25.05.230. Form or manner of solemnization. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.231. Reports of licenses issued.

The registrar may require reports of licenses issued upon forms to be furnished by the registrar.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.240. Parties to receive copy of certificate. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.241. Fees.

The registrar shall establish marriage license fees and provide for accounting for and disposing of the fees.

History. (§ 1 ch 58 SLA 1963; am § 7 ch 79 SLA 1997)

Cross references. —

For court rule setting fees related to marriage, see Alaska Rules of Administration, Rule 9(e)(7) and (8).

Sec. 25.05.250. Unlawful solemnization of marriage. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.251. Relationship to Vital Statistics Act.

Nothing in this chapter repeals or abrogates any part of AS 18.50 (Vital Statistics Act). The records and requirements leading up to and including the issuance of the marriage license are included in the definition of “vital statistics” under AS 18.50. The registrar shall supply the necessary forms and instructions for the licensing officers.

History. (§ 1 ch 58 SLA 1963; am § 8 ch 79 SLA 1997)

Sec. 25.05.260. Solemnization by unauthorized person. [Repealed, § 2 ch 58 SLA 1963.]

Article 5. Solemnization.

Collateral references. —

52 Am. Jur. 2d, Marriage, §§ 35, 36.

55 C.J.S., Marriage, §§ 30-34.

Sec. 25.05.261. Who may solemnize.

  1. Marriages may be solemnized
    1. by a minister, priest, or rabbi of any church or congregation in the state, or by a commissioned officer of the Salvation Army, or by the principal officer or elder of recognized churches or congregations that traditionally do not have regular ministers, priests, or rabbis, anywhere within the state;
    2. by a marriage commissioner or judicial officer of the state anywhere within the jurisdiction of the commissioner or officer;
    3. before or in any religious organization or congregation according to the established ritual or form commonly practiced in the organization or congregation; or
    4. by an individual holding an elective public office in the state.
  2. This section may not be construed to waive the requirements for obtaining a marriage license.
  3. Nothing in this section creates or implies a duty or obligation on a person authorized to solemnize a marriage under (a)(1), (3), or (4) of this section to solemnize any marriage.

History. (§ 1 ch 58 SLA 1963; am §§ 1, 2 ch 20 SLA 2018)

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

Effect of amendments. —

The 2018 amendment, effective September 11, 2018, added (a)(4), and made a related change; added (c).

Notes to Decisions

License mandatory. —

Provision requiring a marriage license is mandatory and not merely directive. Edwards v. Franke, 364 P.2d 60 (Alaska 1961) (Decided under former § 21-1-1, ACLA 1949)

And marriage relationship without license is invalid. —

A marriage relationship sought to be effected without the benefit of a marriage license is invalid. Edwards v. Franke, 364 P.2d 60 (Alaska 1961) (Decided under former § 21-1-1, ACLA 1949)

Common-law marriage is not valid under Alaska law. United States v. Lustig, 555 F.2d 737 (9th Cir. Alaska 1977), cert. denied, 434 U.S. 926, 98 S. Ct. 408, 54 L. Ed. 2d 285 (U.S. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 889, 54 L. Ed. 2d 795 (U.S. 1978).

Collateral references. —

Validity of marriage as affected by lack of legal authority of person solemnizing it, 13 ALR4th 1323.

Sec. 25.05.270. Failure of licensing officer to keep records or permit inspection. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.271. Duty of officiating person before ceremony.

The officiating person shall determine that the parties presenting themselves to be married are the parties named in the license. If the officiating person knows of a legal impediment to the marriage, the officiating person may not perform the ceremony.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.280. Action to recover fine or forfeiture. [Repealed, § 2 ch 58 SLA 1963.]

Sec. 25.05.281. Marriage solemnized by unauthorized person.

After a license has been obtained, a marriage solemnized before a person professing to be a person authorized to solemnize marriages in the state under AS 25.05.261(a) is valid regardless of a lack of power or authority in the person, if the marriage is consummated with a belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.

History. (§ 1 ch 58 SLA 1963; am § 3 ch 20 SLA 2018)

Cross references. —

For penalty for solemnization of marriage by unauthorized person, see AS 25.05.371 .

Effect of amendments. —

The 2018 amendment, effective September 11, 2018, substituted “person authorized to solemnize marriages in the state under AS 25.05.261(a) ” for “minister, priest, or rabbi of a church or congregation in the state or a judicial officer or marriage commissioner” following “person professing to be a”.

Collateral references. —

Validity of marriage as affected by lack of legal authority of person solemnizing it, 13 ALR4th 1323.

Sec. 25.05.291. Civil and religious ceremonies.

When a religious ceremony between two parties follows a civil ceremony between them, one license is sufficient for both ceremonies.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.301. Form of solemnization.

In the solemnization of marriage no particular form is required except that the parties shall assent or declare in the presence of each other and the person solemnizing the marriage and in the presence of at least two competent witnesses that they take each other to be husband and wife. A competent witness for this purpose is a person of sound mind capable of understanding the seriousness of the ceremony. At the time of the ceremony, the person solemnizing the marriage shall complete the certification on the original marriage certificate. The person solemnizing the marriage and the two attending witnesses shall sign the original marriage certificate and the necessary copies.

History. (§ 1 ch 58 SLA 1963)

Notes to Decisions

Informal marriage sanctioned. —

The English common law sanctioning informal marriages has almost universally been recognized in this country, notwithstanding statutory requirements of formalities. Reed v. Harkrader, 264 F. 834 (9th Cir. 1920), construing similar Oregon statute.

Sec. 25.05.311. Marriage without solemnization.

A marriage contracted after January 1, 1964, is void unless the marriage has been solemnized as provided in this chapter. If the parties to a marriage void for failure to solemnize the marriage validate the marriage by complying with the requirements of this chapter, the issue of the void marriage are legitimate.

History. (§ 1 ch 58 SLA 1963)

Notes to Decisions

License mandatory. —

Provision requiring a marriage license is mandatory and not merely directive. Edwards v. Franke, 364 P.2d 60 (Alaska 1961) (Decided under former § 21-1-1, ACLA 1949)

And marriage relationship without license is invalid. —

A marriage relationship sought to be effected without the benefit of a marriage license is invalid. Edwards v. Franke, 364 P.2d 60 (Alaska 1961) (Decided under former § 21-1-1, ACLA 1949)

Common-law marriage is not valid under Alaska law. United States v. Lustig, 555 F.2d 737 (9th Cir. Alaska 1977), cert. denied, 434 U.S. 926, 98 S. Ct. 408, 54 L. Ed. 2d 285 (U.S. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 889, 54 L. Ed. 2d 795 (U.S. 1978).

Sec. 25.05.321. Certificates.

The person solemnizing the marriage shall, on the forms provided by the bureau, complete two short-form certificates, and, after that person and the two witnesses have signed them, give one to each of the parties to the marriage. A church or congregation may design and furnish its own form for this purpose, containing as a minimum the items contained in the form furnished by the bureau. The original marriage certificate shall be filed as required by AS 18.50 (Vital Statistics Act) and regulations adopted under it. The person solemnizing the marriage shall complete the certificate as required and submit it to the local registrar within seven days of the date the marriage is solemnized.

History. (§ 1 ch 58 SLA 1963; am § 9 ch 79 SLA 1997)

Administrative Code. —

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

Article 6. Penalties.

Collateral references. —

55 C.J.S., Marriage, §§ 29, 32, 37-41, 47.

Sec. 25.05.331. Unlawful issuance or refusal of license.

A licensing officer who knowingly issues a marriage license knowing it to be in violation of the provisions of this chapter or who wilfully and wrongfully refuses to issue a license is guilty of a misdemeanor, and upon conviction is punishable by imprisonment for not more than six months, or by a fine of not more than $500, or by both.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.341. Misrepresentation.

A person who misrepresents a fact required to be stated on the application for a license or a form related to it, or a licensing officer who issues a marriage license having reason to believe that any material fact has been misrepresented, is guilty of a misdemeanor, and upon conviction is punishable by a fine of not more than $500.

History. (§ 1 ch 58 SLA 1963; am § 3 ch 134 SLA 1984)

Sec. 25.05.351. Violation concerning marriage license application.

A licensing officer who refuses or neglects to keep a complete record of each application and of each marriage license issued, or who fails to keep marriage license applications open for inspection or examination by the public during office hours is guilty of a misdemeanor and upon conviction is punishable by a fine of not more than $50. Each failure, neglect, or refusal constitutes a separate offense.

History. (§ 1 ch 58 SLA 1963; am § 4 ch 28 SLA 1975; am § 10 ch 79 SLA 1997)

Sec. 25.05.361. Unlawful solemnization of marriage.

A person who solemnizes a marriage without first receiving a proper marriage license from the parties as provided in this chapter or without the parties declaring to take each other as husband and wife, or without requiring the presence of two competent witnesses; or who solemnizes a marriage involving a person under the legal age of marriage without the consent of (1) the licensing official when authorized, or (2) the parents or guardian of the underaged person, being stated in the license; or who solemnizes a marriage knowing of any legal impediment thereto, or who solemnizes a marriage after the expiration of the license, or who falsely certifies to the date of a marriage solemnized by that person is guilty of a misdemeanor, and upon conviction is punishable by imprisonment for not more than six months, or by a fine of not more than $500, or by both.

History. (§ 1 ch 58 SLA 1963)

Sec. 25.05.371. Solemnization of marriage by unauthorized person.

A person not authorized by this chapter who wilfully or knowingly undertakes to solemnize a marriage in this state is guilty of a misdemeanor, and upon conviction is punishable by imprisonment for not more than one year, or by a fine of not more than $1,000, or by both.

History. (§ 1 ch 58 SLA 1963)

Cross references. —

For effect of solemnization by unauthorized person on validity of marriage, see AS 25.05.281 .

Collateral references. —

Validity of marriage as affected by lack of legal authority of person solemnizing it, 13 ALR4th 1323.

Article 7. General Provisions.

Sec. 25.05.381. Definitions.

In this chapter,

  1. “bureau” means the Bureau of Vital Statistics;
  2. “department” means the Department of Health and Social Services;
  3. “licensing officer” means the registrar or a local registrar;
  4. “local registrar” means a person appointed by the state registrar under AS 18.50.080 ;
  5. “registrar” means the state registrar of vital statistics.

History. (§ 1 ch 58 SLA 1963; am § 3 ch 24 SLA 1966; am § 6 ch 104 SLA 1971; am §§ 11, 12 ch 79 SLA 1997)

Revisor’s notes. —

Reorganized in 1983 to alphabetize the defined terms. Paragraph (4) was enacted as (5). Renumbered in 1997, at which time former paragraph (4) was renumbered as (5).

Sec. 25.05.391. Short title.

This chapter may be cited as the Alaska Marriage Code.

History. (§ 1 ch 58 SLA 1963)

Chapter 10. Marriage Commissioners.

[Repealed, § 2 ch 58 SLA 1963. For current law see AS 25.05.081 ]

Chapter 15. Husband and Wife.

Collateral references. —

41 Am. Jur. 2d, Husband and Wife, § 1 et seq.

41 C.J.S., Husband and Wife, § 1 et seq.

Property rights arising from relationship of couple cohabiting without marriage, 3 ALR4th 13.

Modern status of rule that husband is primarily or solely liable for necessaries furnished wife in divorce, 20 ALR4th 196.

Validity and effect of one spouse’s conveyance to other spouse of interest in property held as estate by the entireties, 18 ALR5th 230.

Sec. 25.15.010. Property of one spouse not subject to contracts or liabilities of other.

When property is owned by one spouse, the other has no interest that makes the property liable for the contracts or liabilities of the spouse who is not the owner of the property, except as provided in this chapter and AS 34.77.

History. (§ 21-2-1 ACLA 1949; am § 2 ch 42 SLA 1998)

Revisor’s notes. —

The reference to “AS 34.77” was substituted for “AS 34.75” in 1998 to reflect the 1998 renumbering of the chapter.

Notes to Decisions

Unity of husband and wife abolished. —

The statutes of Alaska relating to the property rights of married women have abolished the common law unity of husband and wife and, therefore, a conveyance to husband and wife is a “conveyance to two or more persons.” Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Construed with AS 34.15.110 and 34.15.130 . —

Statutes relating to the property rights of married women in Alaska must be read together with the provisions of AS 34.15.110 and 34.15.130 . Moore v. State, DOT & Pub. Facilities, 875 P.2d 765 (Alaska 1994)Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Cited in

Pestrikoff v. Hoff, 278 P.3d 281 (Alaska 2012).

Sec. 25.15.020. Actions between spouses respecting property.

Subject to AS 34.77, if one spouse obtains possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action for it, or for any right growing out of it, in the same manner and to the same extent as if they were unmarried.

History. (§ 21-2-2 ACLA 1949; am § 3 ch 42 SLA 1998)

Revisor’s notes. —

The reference to “AS 34.77” was substituted for “AS 34.75” in 1998 to reflect the 1998 renumbering of the chapter.

Notes to Decisions

Unity of husband and wife abolished. —

The statutes of Alaska relating to the property rights of married women have abolished the common law unity of husband and wife and, therefore, a conveyance to husband and wife is a “conveyance to two or more persons.” Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Construed with AS 34.15.110 and 34.15.130 . —

Statutes relating to the property rights of married women in Alaska must be read together with the provisions of AS 34.15.110 and 34.15.130 . Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Sec. 25.15.030. Validity of conveyance, transfer, or lien between spouses.

A conveyance, transfer, or lien executed by one spouse to or in favor of the other is valid to the same extent as between other persons.

History. (§ 21-2-3 ACLA 1949)

Notes to Decisions

Unity of husband and wife abolished. —

The statutes of Alaska relating to the property rights of married women have abolished the common law unity of husband and wife and, therefore, a conveyance to husband and wife is a “conveyance to two or more persons.” Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Construed with AS 34.15.110 and 34.15.130 . —

Statutes relating to the property rights of married women in Alaska must be read together with the provisions of AS 34.15.110 and 34.15.130 . Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Applied in

In re McCarty's Estate, 3 Alaska 242 (D. Alaska 1907).

Sec. 25.15.040. Authority to act as attorney-in-fact for each other.

A husband or wife may appoint the other as attorney-in-fact to control or dispose of property, and may revoke the appointment to the same extent and manner as other persons.

History. (§ 21-2-4 ACLA 1949)

Sec. 25.15.050. Nonliability for premarital or separate debts of other.

Subject to AS 34.77, neither spouse is liable for the debts or liabilities of the other incurred before marriage, and, except as otherwise provided, neither is liable for the separate debts of the other, nor is the rent or income of the property of one spouse liable for the separate debts of the other.

History. (§ 21-2-5 ACLA 1949; am § 4 ch 42 SLA 1998)

Revisor’s notes. —

The reference to “AS 34.77” was substituted for “AS 34.75” in 1998 to reflect the 1998 renumbering of the chapter.

Notes to Decisions

Neither spouse is liable for the separate debts of the other. Long v. Newby, 488 P.2d 719 (Alaska 1971).

Stated in

Richter v. Richter, 330 P.3d 934 (Alaska 2014).

Collateral references. —

Marriage as extinguishing contractual indebtedness between parties; Married Women’s Act, 45 ALR2d 722, 724.

Sec. 25.15.060. Control and liability of separate property of spouse.

Subject to AS 34.77, the property and pecuniary rights of a married person at the time of marriage or afterwards that are acquired by gift, devise, or inheritance are not subject to the debts or contracts of the other spouse, and a spouse may manage, sell, convey, or devise the property and pecuniary rights that by will are separate property of that spouse.

History. (§ 21-2-6 ACLA 1949; am § 94 ch 127 SLA 1974; am § 5 ch 42 SLA 1998)

Revisor’s notes. —

The reference to “AS 34.77” was substituted for “AS 34.75” in 1998 to reflect the 1998 renumbering of the chapter.

Notes to Decisions

Section removes many common law disabilities. —

This section and AS 25.15.100 , as well as other sections, have removed many of the common law disabilities of the wife. Cramer v. Cramer, 379 P.2d 95 (Alaska 1963). See also Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

And enables wife to sue her husband. —

While this section and AS 25.15.100 expressly neither deny nor grant a wife the right to sue her husband, their terminology is broad enough to cover the matter and to enable the wife to bring an action against her husband, during coverture or thereafter, for a tort to her person caused by his negligent conduct while the parties were married to each other. Cramer v. Cramer, 379 P.2d 95 (Alaska 1963). See also Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Sec. 25.15.070. Property acquired during coverture by her own labor. [Repealed, § 95 ch 127 SLA 1974.]

Secs. 25.15.080, 25.15.090. Husband’s return as affecting actions to which wife a party; liability for civil injuries committed by married woman. [Repealed, §§ 96, 97 ch 127 SLA 1974.]

Sec. 25.15.100. Married person may contract or incur liabilities.

A married person may make contracts and may incur liabilities, and the contracts and liabilities may be enforced by or against the person to the same extent and in the same manner as if the person were unmarried.

History. (§ 21-2-10 ACLA 1949; am § 98 ch 127 SLA 1974)

Notes to Decisions

Section removes many common law disabilities. —

This section and AS 25.15.100 , as well as other sections, have removed many of the common law disabilities of the wife. Cramer v. Cramer, 379 P.2d 95 (Alaska 1963). See also Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

And enables wife to sue her husband. —

While this section and AS 25.15.100 expressly neither deny nor grant a wife the right to sue her husband, the statutory terminology is broad enough to cover the matter and to enable the wife to bring an action against her husband, during coverture or thereafter, for a tort to her person caused by his negligent conduct while the parties were married to each other. Cramer v. Cramer, 379 P.2d 95 (Alaska 1963). See also Carver v. Gilbert, 387 P.2d 928 (Alaska 1963).

Stated in

Richter v. Richter, 330 P.3d 934 (Alaska 2014).

Collateral references. —

Wife’s liability for necessaries furnished husband, 11 ALR4th 1160.

Discrimination against credit applicant on basis of marital status under Equal Credit Opportunity Act (15 USCS §§ 1691 et seq.), 55 ALR Fed. 458.

Sec. 25.15.110. Laws imposing civil disabilities upon married persons repealed.

All laws that impose or recognize civil disabilities upon a married person that are not imposed or recognized as existing as to the other spouse are repealed. For any unjust usurpation of property or natural rights a married person has the same right to appeal individually to all courts for redress that the other spouse has.

History. (§ 21-2-11 ACLA 1949; am § 99 ch 127 SLA 1974)

Notes to Decisions

The statutes of Alaska remove certain disabilities which, at common law, attend the wife during her coverture. Decker v. Kedly, 148 F. 681, 2 Alaska Fed. 634 (9th Cir. Alaska 1906).

The married woman’s common-law disability to bring suit was ended by a series of acts referred to as the Married Woman’s Acts. The requirement that suit be brought by the husband when the wife was injured in order that redress be available was thereby ended. Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974).

But the statutes do not mean that the husband is answerable to the wife in damages for failure to supply her with the necessaries of life, or for any other act or failure of duty connected with or arising from the marital relation. Decker v. Kedly, 148 F. 681, 2 Alaska Fed. 634 (9th Cir. Alaska 1906).

Wife has independent right to sue for loss of consortium. —

The basis for recovery is no longer the loss of services, but rather the injury to the conjugal relation. Therefore, the claim for relief for loss of consortium, in both husband and wife, should be given recognition in Alaska. Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974).

The interest to be protected is personal to the wife, for she suffers a loss of her own when the care, comfort, companionship, and solace of her spouse is denied her. Schreiner v. Fruit, 519 P.2d 462 (Alaska 1974).

Quoted in

Cramer v. Cramer, 379 P.2d 95 (Alaska 1963).

Chapter 20. Parent and Child.

Collateral references. —

Child Custody and Visitation Law and Practice (Matthew Bender).

Nina M. Vitek, Disputed Paternity Proceedings (Matthew Bender).

Family Law Litigation Guide with Forms: Discovery, Evidence, Trial Practice (Matthew Bender).

Soler, Bell, Jameson, Representing the Child Client (Matthew Bender).

41 Am. Jur. 2d, Illegitimate Children, § 1 et seq.

42 Am. Jur. 2d, Infants, §§ 1-11

59 Am. Jur. 2d, Parent and Child, § 1 et seq.

43 C.J.S., Infants, § 1-22

67A C.J.S., Parent and Child, § 1 et seq.

Tort liability of public authority for failure to remove parentally abused or neglected children from parents’ custody, 60 ALR4th 942.

Sec. 25.20.010. Age of majority.

A person is considered to have arrived at majority at the age of 18, and thereafter has control of the person’s own actions and business and has all the rights and is subject to all the liabilities of citizens of full age, except as otherwise provided by statute.

History. (§ 20-1-1 ACLA 1949; am § 1 ch 37 SLA 1959; am § 5 ch 63 SLA 1977)

Cross references. —

For provisions relating to petitions to remove the disabilities of minority, see AS 09.55.590 .

Notes to Decisions

Legislation amending several provisions of the Children’s Act was part of an omnibus age-law bill which resolved ambiguities in several codes and generally harmonized all Alaska Statutes with the policy of a 19-year (now 18-year) age of majority. Davenport v. McGinnis, 522 P.2d 1140 (Alaska 1974).

Legislature authorized to enact various ages of majority. —

By including the phrase “except as otherwise provided by statute”, the legislature authorized itself to enact various different ages of majority to govern specific situations or activities. Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).

This section does not carry a broad negative implication, nor imply that infants are incompetent in all things. The age of majority statute does not imply a legislative judgment that infants are incompetent in all things; it means only that persons above the statutory age minimum are competent in all things except as otherwise provided. RLR v. State, 487 P.2d 27 (Alaska 1971); Quick v. State, 599 P.2d 712 (Alaska 1979).

Regulation prohibiting persons under 19 years from knowingly consuming alcoholic beverages. —

Since an administrative regulation prohibiting any person under the age of 19 years from knowingly consuming alcoholic beverages is authorized by statute (see now AS 04.06.090 and AS 04.16.050 ), the regulation comes within the “except as otherwise provided by statute” exception to this section, which gives the age of majority as 18 years. Michael v. State, 583 P.2d 852 (Alaska 1978).

Former AS 11.71.060(a)(3) , which established 19 years as the age of majority for the purpose of regulating the possession of marijuana, did not violate the Alaska Constitution’s equal protection guarantee. Allam v. State, 830 P.2d 435 (Alaska Ct. App. 1992).

Child support issue not mooted. —

In a child custody case, even though a child had reached the age of majority, the custody issue was still considered on appeal because the issue of child support was pending. Wells v. Barile, 358 P.3d 583 (Alaska 2015).

Support beyond age of majority. —

The legislature did not intend to provide for post-majority educational support in either an original decree or in a modification of the original decree. Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Quoted in

Neary v. McDonald, 956 P.2d 1205 (Alaska 1998).

Stated in

L. A. M. v. State, 547 P.2d 827 (Alaska 1976); Lawrence v. Lawrence, 718 P.2d 142 (Alaska 1986); Hermosillo v. Hermosillo, 962 P.2d 891 (Alaska 1998).

Cited in

Streb v. Streb, 774 P.2d 798 (Alaska 1989); Fields v. Fairbanks N. Star Borough, 818 P.2d 658 (Alaska 1991); Brotherton v. Warner, 240 P.3d 1225 (Alaska 2010).

Collateral references. —

Statutory change of age of majority as affecting pre-existing status or rights, 75 A.L.R.3d 228.

Sec. 25.20.020. Arrival at majority upon marriage.

A person arrives at the age of majority upon being married according to law, unless the person is under the marriageable age of consent as defined in AS 25.05.171(a) , in which case the person reaches majority upon reaching the marriageable age of consent.

History. (§ 20-1-2 ACLA 1949; am § 100 ch 127 SLA 1974)

Notes to Decisions

Applied in

Treacy v. Municipality of Anchorage, 91 P.3d 252 (Alaska 2004).

Cited in

RLR v. State, 487 P.2d 27 (Alaska 1971).

Sec. 25.20.025. Examination and treatment of minors.

  1. Except as prohibited under AS 18.16.010(a)(3) ,
    1. a minor who is living apart from the minor’s parents or legal guardian and who is managing the minor’s own financial affairs, regardless of the source or extent of income, may give consent for medical and dental services for the minor;
    2. a minor may give consent for medical and dental services if the parent or legal guardian of the minor cannot be contacted or, if contacted, is unwilling either to grant or withhold consent; however, where the parent or legal guardian cannot be contacted or, if contacted, is unwilling either to grant or to withhold consent, the provider of medical or dental services shall counsel the minor keeping in mind not only the valid interests of the minor but also the valid interests of the parent or guardian and the family unit as best the provider presumes them;
    3. a minor who is the parent of a child may give consent to medical and dental services for the minor or the child;
    4. a minor may give consent for diagnosis, prevention or treatment of pregnancy, and for diagnosis and treatment of venereal disease;
    5. the parent or guardian of the minor is relieved of all financial obligation to the provider of the service under this section.
  2. The consent of a minor who represents that the minor may give consent under this section is considered valid if the person rendering the medical or dental service relied in good faith upon the representations of the minor.
  3. Nothing in this section may be construed to remove liability of the person performing the examination or treatment for failure to meet the standards of care common throughout the health professions in the state or for intentional misconduct.

History. (§ 1 ch 204 SLA 1968; am § 1 ch 73 SLA 1974; am § 6 ch 208 SLA 1975)

Revisor’s notes. —

Formerly AS 09.65.100 . Renumbered in 1994.

Cross references. —

For age of majority, see AS 25.20.010 and 25.20.020 .

Notes to Decisions

Quoted in

State v. Planned Parenthood, 35 P.3d 30 (Alaska 2001).

Cited in

Wells v. State, 102 P.3d 972 (Alaska Ct. App. 2004).

Sec. 25.20.030. Duty of parent and child to maintain each other.

Each parent is bound to maintain the parent’s children when poor and unable to work to maintain themselves. Each child is bound to maintain the child’s parents in like circumstances.

History. (§ 21-3-1 ACLA 1949)

Cross references. —

For persons liable for support and burial, see AS 47.25.230 .

Notes to Decisions

A parent is obligated both by statute and at common law to support his or her children, even in the absence of a court order of support. Matthews v. Matthews, 739 P.2d 1298 (Alaska 1987).

Parent’s duty of support starts at child’s birth. —

A biological parent’s duty of support commences at the date of the birth of the child, not at the time a court adjudicates paternity. Department of Revenue, Child Support Enforcement Div. ex rel. Hawthorne v. Rios, 938 P.2d 1013 (Alaska 1997).

When parent performs his duty. —

The parent performs his duty when he provides for his child whatever is necessary for its suitable clothing and maintenance according to their situation and condition in life. State v. Langford, 90 Or. 251, 176 P. 197 (1918), construing similar Oregon statute.

A parent’s duty of support encompasses a duty to reimburse other persons who provide the support the parent owes, belongs to whomever supported the children, and is simply an action on a debt. However, when a custodial parent seeks a modification of a divorce decree that neglected to address either child custody or child support, and also seeks reimbursement for past child support expenditures, he or she may join the claims, and bring both by motion in the original divorce action. Matthews v. Matthews, 739 P.2d 1298 (Alaska 1987).

State entitled to reimbursement for public assistance. —

Although a support order that does not require the noncustodial parent to make any child support payment is not a “support order” under former AS 47.23.120(a) (now AS 25.27.120(a) ), the Child Support Enforcement Division (CSED) (now the Child Support Services Agency) is entitled to reimbursement from the noncustodial parent for public assistance provided to the child in an amount determined by the state in accordance with a formula approved by the federal Secretary of Health and Human Services. State, Child Support Enf't Div. v. Gammons, 774 P.2d 181 (Alaska 1989).

Effect of consent to adoption. —

Father’s consent to adoption did not relieve him of his responsibility to support his child, and his duty of support encompassed a duty to reimburse the state for support of the child. Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Obligation of father after divorce. —

The obligation of the father is, after divorce, exactly the same as it was before dissolution of the marriage contract. State v. Langford, 90 Or. 251, 176 P. 197 (1918), construing similar Oregon statute.

How obligation measured. —

The obligation of the father must be measured with reference to his ability, honestly exercised, and with regard to his financial resources. State v. Langford, 90 Or. 251, 176 P. 197 (1918), construing similar Oregon statute.

Application to incarcerated parent. —

There is no basis under Civ. P. Rule 90.3 or this section for treating indigent incarcerated parents differently from other indigent parents. Although incarceration may limit a parent’s present ability to meet ongoing support obligations, a parent’s incarceration should not excuse that obligation, just as incarceration will not excuse any other debt a parent owes. Douglas v. State, Dep't of Revenue, 880 P.2d 113 (Alaska 1994), cert. denied, 514 U.S. 1112, 115 S. Ct. 1968, 131 L. Ed. 2d 857 (U.S. 1995).

Mother of decedent in wrongful death action. —

Mother of decedent did not have the right to receive directly the proceeds of the wrongful death action as a statutory beneficiary by virtue of this section, which requires each child to maintain his parents when they are poor and unable to work and maintain themselves. In re Estate of Pushruk, 562 P.2d 329 (Alaska 1977).

Although this section establishes a duty running between parent and child under specific factual circumstances, it does not create a right of action in the parent against a third-party tort-feasor. Nor does it establish dependency as a matter of law. In re Estate of Pushruk, 562 P.2d 329 (Alaska 1977).

Applicability of criminal nonsupport statute. —

The criminal nonsupport statute, AS 11.51.120 , does not extend beyond those individuals expressly made legally responsible for the support of a child by this section and AS 47.25.230 ; it does not apply to stepparents regardless of their actual relationship to the stepchildren. Olp v. State, 738 P.2d 1117 (Alaska Ct. App. 1987).

Quoted in

Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); Streb v. Streb, 774 P.2d 798 (Alaska 1989).

Cited in

Schuyler v. Briner, 13 P.3d 738 (Alaska 2000); Kestner v. Clark, 182 P.3d 1117 (Alaska 2008); Stephanie W. v. Maxwell V., 274 P.3d 1185 (Alaska 2012).

Collateral references. —

Moral obligation to support, 8 ALR2d 787.

Statutory family allowance to minor children as affected by previous agreement or judgment for their support, 6 ALR3d 1387.

What voluntary acts of child, other than marriage or entry into military service, terminate parent’s obligation to support, 32 ALR3d 1055.

Right of child to enforce provisions for his benefit in parents’ separation or property settlement agreement, 34 ALR3d 1357.

Liability of parent for support of child institutionalized by juvenile court, 59 ALR3d 636.

Validity, construction, and application of statute imposing upon step-parent obligation to support child, 75 ALR3d 1129.

Constitutionality of statutory provision requiring reimbursement of public by child for financial assistance to aged parents, 75 ALR3d 1159.

Child’s right of action for loss of support, training, parental attention, or the like, against a third person negligently injuring parent, 11 ALR4th 549.

Sec. 25.20.040. Maintenance and education of minor out of income of the minor’s property.

If a minor who has a parent living has property from which income is sufficient for maintenance and education in a manner more expensive than the parent can reasonably afford, considering the situation of the parent’s family and all the circumstances of the case, the expenses of the minor’s maintenance and education may be defrayed out of the income of the property, in whole or in part, as judged reasonable by the court. The expenses may be allowed accordingly in the settlement of the accounts of the minor’s guardian.

History. (§ 21-3-2 ACLA 1949; am § 101 ch 127 SLA 1974)

Notes to Decisions

Cited in

Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).

Collateral references. —

Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child’s college education, 99 ALR3d 322.

Sec. 25.20.045. Legitimacy of children conceived by artificial insemination.

A child, born to a married woman by means of artificial insemination performed by a licensed physician and consented to in writing by both spouses, is considered for all purposes the natural and legitimate child of both spouses.

History. (§ 1 ch 122 SLA 1975)

Revisor’s notes. —

Formerly AS 20.20.010. Renumbered in 1982.

Collateral references. —

41 Am. Jur. 2d, Illegitimate Children, §§ 1, 2

59 Am. Jur. 2d, Parent and Child, §§ 5, 7.

2 C.J.S., Adoption of Persons, §§ 2, 16.

Rights and obligations resulting from human artificial insemination, 83 ALR4th 295.

Sec. 25.20.050. Legitimation by subsequent marriage, acknowledgment in writing, or adjudication.

  1. A child born out of wedlock is legitimated and considered the heir of the putative parent when (1) the putative parent subsequently marries the undisputed parent of the child; (2) for acknowledgments made before July 1, 1997, the putative parent acknowledges, in writing, being a parent of the child; (3) for acknowledgments made on or after July 1, 1997, the putative father and the mother both sign a form for acknowledging paternity under AS 18.50.165 ; or (4) the putative parent is determined by a superior court without jury or by another tribunal, upon sufficient evidence, to be a parent of the child. Acceptable evidence includes evidence that the putative parent’s conduct and bearing toward the child, either by word or act, indicates that the child is the child of the putative parent. That conduct may be construed by the tribunal to constitute evidence of parentage. When indefinite, ambiguous, or uncertain terms are used, the tribunal may use extrinsic evidence to show the putative parent’s intent.
  2. The Bureau of Vital Statistics, as custodian of the original certificates of birth of all persons born in the state, is designated as the depository for such acknowledgment and adjudication.  The acknowledgment or adjudication shall be forwarded to the bureau in accordance with appropriate regulations of the bureau, and shall be noted on and filed with the corresponding original certificate of birth.
  3. In case of the birth in this state of a child out of wedlock and the legitimation of the child in accordance with this section, at the written request of the parents, or either of them or of the legal guardian, or of the person when of legal age, the Bureau of Vital Statistics shall prepare and place on file a substitute birth certificate, in accordance with the laws and regulations of the bureau pertaining to new certificates of this type.
  4. The results of a genetic test that is of a type generally acknowledged as reliable by an accreditation body designated by the Secretary of Health and Human Services and performed by a laboratory approved by such an accreditation body shall be admitted and weighed in conjunction with other evidence in determining the statistical probability that the putative parent is a legal parent of the child in question. However, a genetic test described in this subsection that establishes a probability of parentage at 95 percent or higher creates a presumption of parentage that may be rebutted only by clear and convincing evidence.
  5. Except as provided in (i) of this section, in proceedings in which paternity is contested, the tribunal shall order the parties, including the child, to submit to testing as described in (d) of this section upon request of
    1. the child support services agency created in AS 25.27.010 or the child support enforcement agency of another state; or
    2. a party, including a sworn statement
      1. alleging the paternity of an individual and setting out facts that show a reasonable possibility that the mother and that individual had sexual contact that could have resulted in the conception of the child; or
      2. denying the paternity of an individual and setting out facts that show a reasonable possibility that the mother and that individual did not have sexual contact that could have resulted in the conception of the child.
  6. The child support enforcement agency or child support services agency, as appropriate, may recover the costs of testing ordered under (e) of this section from the alleged father unless the testing establishes that the individual is not the father, except that costs may not be recovered from a person who is a recipient of cash assistance or self-sufficiency services under AS 47.27 (Alaska temporary assistance program). For purposes of this subsection, a person who receives a diversion payment and self-sufficiency services under AS 47.27.026 is not considered to be a recipient of cash assistance or self-sufficiency services under AS 47.27.
  7. A default judgment shall be entered against the defendant in an action where paternity is contested upon
    1. a showing that process was served on the defendant as required under applicable state law and court rules;
    2. a showing that the defendant has failed to appear at a hearing in the action or has failed to respond within a reasonable period of time as specified in court rules; and
    3. any additional showing determined necessary by the court.
  8. The tribunal in a paternity action shall give full faith and credit to a determination of paternity made by another state, whether established through voluntary acknowledgment or through administrative or judicial procedures.
  9. If a tribunal finds that good cause exists not to order genetic testing after considering the best interests of the child, the tribunal may not order testing under (e) of this section.
  10. Invoices, bills, or other standard documents showing charges for medical and related costs of pregnancy, childbirth, or genetic testing are admissible in an action to establish paternity without testimony or other evidence from the medical or other provider or third-party payor to provide the foundation for admissibility of the documents. The documents shall constitute prima facie evidence of the amounts incurred for such charges.
  11. Upon the motion of the child support enforcement agency or child support services agency, as appropriate, or another party in the action to establish paternity, the tribunal shall issue a temporary order for support of the child whose paternity is being determined. The order may require periodic payments of support, health care coverage, or both. The order shall be effective until the tribunal issues a final order on paternity and a permanent order for support is issued or the tribunal dismisses the action. The temporary order may only be issued if the tribunal finds clear and convincing evidence of the paternity of the putative father on the basis of the results of the genetic tests and other evidence admitted in the proceeding.
  12. The tribunal shall consider a completed and signed form for acknowledging paternity that meets the requirements of AS 18.50.165(a) as a legal finding of paternity for a child born out of wedlock. For an acknowledgment signed on or after July 1, 1997, the acknowledgment may only be withdrawn by the earlier of the following dates: (1) 60 days after the date that the person signed it, or (2) the date on which judicial or administrative procedures are initiated to establish child support in the form of periodic payments or health care coverage for, or to determine paternity of, the child who is the subject of the acknowledgement. After this time period has passed, the acknowledgment may only be contested in superior court on the basis of fraud, duress, or material mistake. The parent wishing to contest the acknowledgment carries the burden of proof by a preponderance of the evidence. Unless good cause is shown, the court may not stay child support or other legal responsibilities while the action to contest the acknowledgment is pending.
  13. If a parent signs an acknowledgment of paternity under (a) of this section and does not successfully challenge the acknowledgment under (l) of this section, the child born out of wedlock is considered legitimated and the heir of the parent without further action of the tribunal to ratify the acknowledgment of paternity.
  14. Each paternity order or acknowledgment made under this section must include in the records relating to the matter the social security numbers, if ascertainable, of the following persons:
    1. the father;
    2. the mother;
    3. the child.
  15. In this section, unless the context requires otherwise, “tribunal” means a court, administrative agency, or quasi-judicial entity authorized by state law to determine parentage.

History. (§ 21-3-3 ACLA 1949; am § 1 ch 57 SLA 1951; am § 1 ch 115 SLA 1957; am § 1 ch 19 SLA 1960; am §§ 3, 4 ch 144 SLA 1984; am § 1 ch 69 SLA 1989; am § 2 ch 80 SLA 1994; am § 11 ch 107 SLA 1996; am §§ 36 — 41 ch 87 SLA 1997; am § 12 ch 132 SLA 1998; am §§ 3, 4 ch 106 SLA 2000; am § 1 ch 69 SLA 2002)

Revisor’s notes. —

In 2004, in (e)(1) of this section, “child support enforcement agency” was changed to “child support services agency” in accordance with § 12(a), ch. 107, SLA 2004. In 2004, in the first sentences of both subsection (f) and subsection (k), “or child support services agency, as appropriate,” was inserted to comply with the instruction in § 12(a), ch. 107, SLA 2004, that the name of the child support enforcement agency created in AS 25.27.010 was to be changed to the “child support services agency”.

Cross references. —

For effect of the enactment of (e) of this section on Rule 35, Alaska Rules of Civil Procedure, see § 3, ch. 69, SLA 1989 in the Temporary and Special Acts; for provisions relating to registration of birth of a child conceived or born out of wedlock, see AS 18.50.160(e) and (f ); for child support services agency role in court actions to determine paternity, see AS 25.27.040 ; for determination of parentage in certain interstate cases, see AS 25.25.701 and AS 25.27.022 ; for administrative establishment and disestablishment of paternity, see AS 25.27.165 25.27.166 . For effect of the amendments to this section made by ch. 87, SLA 1997 on court rules, see §§ 149-151, and 154, ch. 87, SLA 1997 in the 1997 Temporary and Special Acts. For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Administrative Code. —

For administration, see 7 AAC 5, art. 1.

For births, deaths, burial permits, marriages, divorces, adoptions, see 7 AAC 5, art. 2.

For special procedures, see 7 AAC 5, art. 3.

For paternity, see 15 AAC 125, art. 3.

Opinions of attorney general. —

This section allows a substitute birth certificate when there is legitimization of the child by intermarriage (providing proof is offered that the marriage was between the parents of the child), as well as by court adjudication alone. 1959 Alas. Op. Att'y Gen. No. 29.

Only the third method of legitimation is specifically vested in the court. 1962 Alas. Op. Att'y Gen. No. 13.

By implication, the Bureau of Vital Statistics has the power and duty to make its own determination of the fulfillment of the first two conditions of legitimation. 1962 Alas. Op. Att'y Gen. No. 13.

Necessarily involved in legitimation is the administrative determination of illegitimacy at the time an original birth certificate is filed. 1962 Alas. Op. Att'y Gen. No. 13.

For application of presumption of legitimacy to validity of original birth certificate, see 1962 Alas. Op. Att'y Gen. No. 13.

For right of child to legitimation procedures, see 1962 Alas. Op. Att'y Gen. No. 13.

An admission under oath or in writing of paternity in a foreign action could be recognized as satisfying the requirement of subdivision (a)(2) of this section that a father acknowledge his paternity of the child as a method of legitimation. 1962 Alas. Op. Att'y Gen. No. 13.

The bureau should recognize foreign marriages as sufficient under subdivision (a)(1) of this section to establish a subsequent intermarriage as a basis for legitimation. 1962 Alas. Op. Att'y Gen. No. 13.

For suggested standards of proof to establish that the man subsequently marrying a mother is the father of her child, for purposes of issuing a substitute birth certificate legitimating the child under subdivision (a)(1), see 1962 Alas. Op. Att'y Gen. No. 13.

For discussion of what constitutes a sufficient written acknowledgment of paternity under subdivision (a)(2), see 1962 Alas. Op. Att'y Gen. No. 13.

Erroneous entries in the original birth certificates of children born to unwed mothers naming the father are significant to show a mother’s acknowledgment of paternity corroborating the effect of subsequent intermarriage or written acknowledgment of paternity by the father, if it can be established that the entry was made by the mother or at her request, but such entries have no other evidentiary value. 1962 Alas. Op. Att'y Gen. No. 13.

Legitimation may be effected by the bureau even though the acknowledged father is married to another woman, under the general policy of the statute. 1962 Alas. Op. Att'y Gen. No. 13.

Notes to Decisions

Construction. —

Both the plain language of AS 13.12.114 and the language of AS 25.20.050 , incorporated by reference, are best read as defining the process a court must follow to determine heirs to whom an estate devolves, not as providing a cause of action. In re Estate of Seward, 424 P.3d 333 (Alaska 2018).

Action by or on behalf of child. —

Given that the potential plaintiffs in paternity actions are not delimited by statute, a child, upon reaching the age of majority, may bring an action and, prior to the age of majority, a parent or guardian ad litem may bring an action on behalf of the child, or the Child Support Enforcement Division (now the Child Support Services Agency) may appear on behalf of the child, or the child’s mother or legal guardian. Grober v. State, Dep't of Revenue ex rel. C.J.W., 956 P.2d 1230 (Alaska 1998).

Due process rights of putative father. —

A standing order issued pursuant to subsection (e) and Civil Rule 35 ordering the mother, child, and putative father to submit to blood tests in any paternity action in which the state is a party and the putative father has denied paternity violated the putative father’s due process rights; however, reliance on the order was harmless where the constitutional standard was satisfied in later proceedings. Grober v. State, Dep't of Revenue ex rel. C.J.W., 956 P.2d 1230 (Alaska 1998).

Appointment of counsel.—

Superior court was correct to appoint public counsel for a boyfriend where the evidence was legally sufficient to determine he was a child's biological father; the sworn testimony of the mother and the boyfriend indicated that he was the father, and the superior court made appropriate inquiries regarding the child's birth certificate, the mother's marital status, and the certainty of the mother and the boyfriend regarding paternity. Office of Pub. Advocacy v. Superior Court, 462 P.3d 1000 (Alaska 2020).

When acknowledgment of paternity can be filed. —

Under the existing provisions of subsection (a) of this section and former AS 20.15.040(a) (now AS 25.23.040(a) ), an acknowledgment of paternity can be filed at any time before the entry of a decree of adoption. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

The filing of an adoption petition does not preclude the biological father from thereafter filing a written acknowledgment of his paternity of the subject child, thereby legitimizing him. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Interpretation of the relevant statutes precludes additional consideration of the best interests of the child in determining whether a father may legitimize the adoptee during the pendency of an adoption proceeding and so foreclose adoption absent his consent. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Because the father produced evidence of justifiable cause for his failure to communicate with the child, who was too young to read or communicate over the telephone, and because the adoptive parents did not meet their burden of proving by clear and convincing evidence that the father unjustifiably failed to communicate meaningfully with the child for one year, consent for the adoption of the child was required from the father. Bruce L. v. W.E., 247 P.3d 966 (Alaska 2011).

Evidentiary admission of legitimation form. —

Admission of a form designed to accomplish legitimation under subsection (a), not to establish child’s legitimacy, but simply as an evidentiary admission, was proper. Rubright v. Arnold, 973 P.2d 580 (Alaska 1999).

Applicability of Indian Child Welfare Act. —

Even though the father did not comply with the Alaska legitimation statute, which requires signatures from both parents, or that the father complete his legitimization efforts in court within the first year of the child’s life, he sufficiently acknowledged paternity of the child to invoke the application of the Indian Child Welfare Act (ICWA); thus, if the child was an Indian child, the father was a parent under the ICWA and was entitled to the protections under 25 U.S.C.S. § 1912(d) and (f) and other applicable provisions. Bruce L. v. W.E., 247 P.3d 966 (Alaska 2011).

Establishment-preclusion order on question of paternity. —

The superior court had discretion to enter an establishment-preclusion order on the question of paternity, where the alleged father willfully violated the court’s order by providing false evidence. Dade v. State, Child Support Enf't Div. ex. rel. Lovett, 725 P.2d 706 (Alaska 1986).

Faulty DNA testing non-scientific. —

Paternity action establishing biological fatherhood of three children warranted reversal where the proffered DNA reports were not accompanied by authenticating affidavits and no sworn testimony was offered that the tests reflected by the reports were scientifically accepted, as required by subsection (d). Mattox v. State, Dep't of Revenue ex rel Neeson, 875 P.2d 763 (Alaska 1994).

Summary judgment. —

While it was true that genetic test results established a rebuttable presumption of paternity in the case at bar and shifted the burden to the putative father to prove non-paternity by clear and convincing evidence, because that standard is only significant in the context of weighing the evidence it was irrelevant on summary judgment. Meyer v. Department of Revenue, Child Support Enforcement Div. ex rel. N.G.T., 994 P.2d 365 (Alaska 1999).

A sworn denial of sexual intercourse with the mother of a child during the period of the child’s conception created a factual issue sufficient to preclude summary judgment. Meyer v. Department of Revenue, Child Support Enforcement Div. ex rel. N.G.T., 994 P.2d 365 (Alaska 1999).

Probate proceeding. —

Alleged child's paternity claim in a probate proceeding was not time-barred because (1) the claim was not a separate cause of action under AS 13.12.114 subject to a statute of limitations, as the statute only created a procedure to establish paternity pursuant to AS 25.20.050 , and (2) no probate code time bar applied, since the non-claim statute did not apply to the exempt property allowance, as assertions of right to the allowance were not "claims against a decedent's estate," the right was asserted while the estate was open, so estate-closing statutes did not apply, and the statute of limitations in the code of civil procedure did not bar the claim which accrued at the decedent's death. In re Estate of Seward, 424 P.3d 333 (Alaska 2018).

Applied in

S.L.W. v. Alaska Workmen's Compensation Bd., 490 P.2d 42 (Alaska 1971); Smith v. Smith, 845 P.2d 1090 (Alaska 1993); R.I. v. C.C., 9 P.3d 274 (Alaska 2000).

Cited in

Buness v. Gillen, 781 P.2d 985 (Alaska 1989); Dewey v. Dewey, 886 P.2d 623 (Alaska 1994); Lawson v. Lawson, 108 P.3d 883 (Alaska 2005); Estate of James v. Seward, 401 P.3d 976 (Alaska 2017).

Collateral references. —

41 Am. Jur. 2d, Illegitimate Children, §§ 131-141.

Paternity, legitimacy, or legitimation as determined in action for divorce, separation, or annulment upon vacating or opening decree, 65 ALR2d 1390.

Race or color of child as admissible in evidence on issue of legitimacy or paternity, or as basis of rebuttal or exception to presumption of legitimacy, 32 ALR3d 1303.

Presumption of legitimacy of child born after annulment, divorce, or separation, 46 ALR3d 158.

Propriety of exhibition of child to jury to show family resemblance or lack of it on issue of paternity, 55 ALR3d 1087.

Death of putative father as precluding action for determination of paternity or child support, 58 A.L.R.3d 188.

Admissibility, in disputed paternity proceedings, of evidence to rebut mother’s claim of prior chastity, 59 ALR3d 659.

Statute of limitations in illegitimacy or bastardy proceedings, 59 ALR3d 685.

Long-arm statutes, obtaining jurisdiction over nonresident parent in filiation or support proceeding, 76 ALR3d 708.

Legitimation by marriage to natural father of child born during mother’s marriage to another, 80 ALR3d 219.

Who may dispute presumption of legitimacy of child conceived or born during wedlock, 90 ALR3d 1032.

Right of indigent defendant in paternity suit to have assistance of counsel at state expense, 4 ALR4th 363.

Right of illegitimate child to maintain action to determine paternity, 19 ALR4th 1082.

Right to jury trial paternity proceedings, 51 ALR4th 565.

Sec. 25.20.055. Early acknowledgement of paternity program.

  1. When a birth occurs to an unmarried woman in a hospital or en route to a hospital to which the woman is later admitted, the hospital shall ensure that a staff member
    1. meets with the woman before release from the hospital;
    2. attempts to meet with the father of the unmarried woman’s child, if possible;
    3. presents to the mother and, if possible, the father, a pamphlet or statement regarding the rights and responsibilities of a natural parent; the Department of Health and Social Services shall prepare this pamphlet and distribute copies of it to each hospital in the state, to each physician in the state whose practice includes attendance at births, to each certified nurse midwife and certified direct-entry midwife in the state, and to other interested persons in the state who request copies;
    4. provides to the mother and, if possible, the father, all forms, statements, or agreements necessary to voluntarily establish a parent and child relationship, including an acknowledgment of paternity form prepared under AS 18.50.165 ;
    5. on request of the mother and father, assists the father in completing specific forms, statements, or agreements necessary to establish a parent and child relationship between the father and the child; and
    6. on request of the mother and father, mails a completed voluntary acknowledgment of paternity form to the state registrar for filing under AS 18.50.165 .
  2. When a birth occurs to an unmarried woman who is not in a hospital for the birth nor admitted to a hospital immediately after the birth, and the birth is attended by a physician, certified nurse midwife, or certified direct-entry midwife, the physician, certified nurse midwife, or certified direct-entry midwife shall perform the duties described in (a)(2) - (6) of this section or ensure that an agent performs those duties.
  3. When a birth occurs in a situation that is not covered by either (a) or (b) of this section, any adult may, upon request of the father and mother, assist them in filing a voluntary acknowledgement of paternity form with the state registrar under AS 18.50.165 .
  4. Notwithstanding (a) of this section, the Department of Health and Social Services may adopt regulations to establish exceptions for good cause that identify circumstances under which a hospital is not required to comply with (a) of this section. A hospital may be excused from complying with (a) of this section if the hospital meets those regulatory requirements.

History. (§ 3 ch 80 SLA 1994; am § 42 ch 87 SLA 1997; am §§ 42, 43 ch 33 SLA 2016)

Effect of amendments. —

The 2016 amendment, effective July 7, 2016, in (a)(3), substituted “certified nurse midwife” for “nurse-midwife”; inserted “certified” preceding “direct-entry”, and made stylistic changes; in (b), substituted “certified nurse midwife” for “nurse-midwife” twice, inserted “certified” preceding “direct-entry” twice.

Editor’s notes. —

The delayed repeal of (d) of this section by § 148(c), ch. 87, SLA 1997, as amended by § 53, ch. 132, SLA 1998, which was to take effect July 1, 2001, was repealed by § 15, ch. 54, SLA 2001.

Sec. 25.20.060. Petition for award of child custody.

  1. If there is a dispute over child custody, either parent may petition the superior court for resolution of the matter under AS 25.20.060 25.20.130 . The court shall award custody on the basis of the best interests of the child. In determining the best interests of the child, the court shall consider all relevant factors, including those factors enumerated in AS 25.24.150(c) , and the presumption established in AS 25.24.150(g) . In a custody determination under this section, the court shall provide for visitation by a grandparent or other person if that is in the best interests of the child.
  2. Neither parent, regardless of the question of the child’s legitimacy, is entitled to preference in the awarding of custody.
  3. The court may award shared custody to both parents if shared custody is determined by the court to be in the best interests of the child.  An award of shared custody shall assure that the child has frequent and continuing contact with each parent to the maximum extent possible.
  4. If the court finds that a parent or child is a victim of domestic violence, the court may order that the address and telephone number of the parent or child be kept confidential in the proceedings.

History. (§ 6 ch 63 SLA 1977; am § 5 ch 88 SLA 1982; am § 1 ch 30 SLA 1995; am § 38 ch 64 SLA 1996; am § 1 ch 111 SLA 2004)

Notes to Decisions

Right to counsel. —

The due process clause of the Alaska Constitution guarantees an indigent parent the right to court-appointed counsel in a private child custody proceeding in which the spouse is represented by Alaska Legal Services Corporation. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Joint custody. —

The mere existence of a custody agreement is not sufficient evidence of a couple’s ability to cooperate to warrant joint custody. Lone Wolf v. Lone Wolf, 741 P.2d 1187 (Alaska 1987).

There was ample evidence in the record to support a trial court’s finding that the parties could not cooperate to the extent necessary to make a joint custody arrangement work, despite the father’s argument that both his and his wife’s joint concern for their son’s developmental problems, a court-ordered pretrial custody arrangement, and an earlier custody agreement evinced their ability to cooperate for the benefit of the children. Lone Wolf v. Lone Wolf, 741 P.2d 1187 (Alaska 1987).

The test for evaluating the propriety of joint legal custody is whether or not the parties can cooperate and communicate regarding the children. Farrell v. Farrell, 819 P.2d 896 (Alaska 1991).

Superior court did not err or abuse its discretion in ordering shared physical and legal custody where its adopted findings expressly considered the AS 25.24.150(c) custody factors, including the daughter's preference for shared custody, the parents' willingness to facilitate a relationship with the other parent, and domestic violence substance abuse evidence, as well as the daughter's physical, emotional, mental, religious, and social needs, and in weighing each factor, the court implicitly considered relevant shared custody factors required by AS 25.20.090 . Hardy v. Nix, — P.3d — (Alaska May 27, 2020).

Joint custody denied. —

Declining to order joint legal custody of the daughter was not an abuse of discretion where the superior court found that both parents were arrogant and selfish, which affected their communication and ability to compromise with each other. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Trial court did not abuse its discretion in awarding sole custody to the mother after finding that the parties were unable to cooperate or communicate in a meaningful way. Red Elk v. McBride, 344 P.3d 818 (Alaska 2015).

An order requiring that visitation be supervised must be supported by findings that specify how unsupervised visitation will adversely affect the child’s physical, emotional, mental, religious, and social well-being and the other interests set out in AS 25.24.150 . J.F.E. v. J.A.S., 930 P.2d 409 (Alaska 1996).

In a child custody case, even though supervised visitation might have been appropriate, it was error for the superior court not to make express findings that specified why unsupervised visitation would have adversely affected the children’s well-being; implications and suggestions were insufficient to support visitation restrictions. It was an abuse of discretion to fail to specify a plan by which unsupervised visitation could have been achieved and to order supervised visitation until the father reasonably believed that supervision was no longer necessary. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Constitutionality of subsection (a) visitation provisions. —

Visitation provisions of subsection (a) of this section are facially constitutional because visitation rights can be sought only in a pending child custody case; although subsection (a) permits a court to provide for visitation “by a grandparent or other person” based on the best interests of a child, the phrase “by a grandparent or other person” is limited to third parties who have a significant connection to the child. Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Rights of nonparents. —

The policy supporting shared parental custody applies equally when the custody dispute arises between a parent and a nonparent. Carter v. Novotny, 779 P.2d 1195 (Alaska 1989).

A nonparent who has a significant connection with the child has standing to assert a claim for custody. Buness v. Gillen, 781 P.2d 985 (Alaska 1989), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

The purpose of this section is to set standards for the adjudication of custody disputes between parents in a nondivorce setting. It does not imply that the superior court lacks jurisdiction to adjudicate custody disputes between a parent and a nonparent. Such disputes are civil matters over which the superior court has undoubted subject matter jurisdiction. Buness v. Gillen, 781 P.2d 985 (Alaska 1989), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Granting custody to a non-party. —

Under AS 25.20.060 and 25.24.150(c) , where the trial court awarded physical custody to a non-parent over the objections of a parent, and failed to make findings by clear and convincing evidence either that the parent was unfit or that the welfare of the children required the children to remain with the non-parent, the order awarding shared physical custody violated Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).

Under AS 25.20.060 and 25.24.150(c) , a trial court has discretion to grant custody to a non-party if (1) the non-party consents, (2) the award complies with the requirements in Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004) for overriding the parental preference, (3) the non-party could have intervened in the custody dispute, and (4) the parties to the custody dispute have sufficient notice of the possibility that a non-party will receive custody to satisfy due process. Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).

Burden of proof for third-person visitation. —

Third persons seeking visitation with a child under subsection (a) of this section have the burden of proving that the visitation is in the best interest of the child by clear and convincing evidence; alternatively, a trial court could decide whether there was clear and convincing evidence that the mother was unfit to make visitation decisions concerning the child. Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

AS 25.20.065 not applicable. —

AS 25.20.065 , which permits a grandparent in an original proceeding to petition for an order establishing visitation rights, did not apply where the persons granted visitation were not grandparents, and did not proceed by way of an original proceeding but by intervening in a custody modification action between parents. Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Grounds for reversing custody award. —

In child custody proceedings, the best interests of the child is the paramount consideration, and the father’s argument that the superior court’s decision was “prejudicial” to him did not provide sufficient grounds for reversing the superior court’s order awarding custody to the mother. R.I. v. C.C., 9 P.3d 274 (Alaska 2000).

Modification justified. —

Court properly modified child custody to a father where the mother interfered in the father’s relationship with the child, which demonstrated an unwillingness to allow an open and loving relationship, and the mother’s assisted living facility raised a concern about her ability to meet the child’s physical, emotional, mental, and social needs. Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005).

Abuse of discretion. —

The trial court abused its discretion in not awarding both parents shared custody of their child where the evidence indicates that the only area of irreconcilable conflict between the parents concerned what form of day care would be best for their child; resolution of the day care issue does not require denial of joint-legal custody which the Alaska legislature recognizes as the favored course. Bell v. Bell, 794 P.2d 97 (Alaska 1990).

Award reversed. —

Appellate court reversed a child custody award in favor of the father, because the trial court applied an incorrect standard in reaching its final custody determination and considered one statutory best interests factor to the exclusion of all others. Smith v. Weekley, 73 P.3d 1219 (Alaska 2003).

The superior court abused its discretion by including provisions in its final custody orders prohibiting the mother from engaging in inappropriate sexual conduct, prohibiting the mother from consuming any alcohol while the child is in her custody, and prohibiting the mother from driving with the child as a passenger within 12 hours after having consumed alcohol, where there was nothing in the record to indicate that any of these items were a problem. Mariscal v. Watkins, 914 P.2d 219 (Alaska 1996).

Applied in

Puddicombe v. Dreka, 167 P.3d 73 (Alaska 2007); Harvey v. Cook, 172 P.3d 794 (Alaska 2007).

Quoted in

S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); McClain v. McClain, 716 P.2d 381 (Alaska 1986); McDanold v. McDanold, 718 P.2d 467 (Alaska 1986); Garding v. Garding, 767 P.2d 183 (Alaska 1989); Ulsher v. Ulsher, 867 P.2d 819 (Alaska 1994); Hawkins v. Williams, 314 P.3d 1202 (Alaska 2013); Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Stated in

T.M.C. v. S.A.C., 858 P.2d 315 (Alaska 1993); Patrawke v. Liebes, 285 P.3d 268 (Alaska 2012); Ross v. Bauman, 353 P.3d 816 (Alaska 2015).

Cited in

Miller v. Miller, 739 P.2d 163 (Alaska 1987); House v. House, 779 P.2d 1204 (Alaska 1989); Monette v. Hoff, 958 P.2d 434 (Alaska 1998); I.J.D. v. D.R.D., 961 P.2d 425 (Alaska 1998); Platz v. Aramburo, 17 P.3d 65 (Alaska 2001); Co v. Matson, 313 P.3d 521 (Alaska 2013); Brett M. v. Amanda M., 445 P.3d 1005 (Alaska 2019).

Collateral references. —

Modification of child support order as justified by change in circumstances, 1 Am. Jur. POF2d, pp. 1-63.

41 Am. Jur. 2d, Illegitimate Children, §§ 98-103.

Court’s power in habeas corpus proceedings relating to custody of child to adjudicate questions as to child’s support, 17 ALR3d 764.

Award of custody of child where contest is between child’s father and grandparent, 25 ALR3d 7.

Award of custody of child where contest is between child’s parents and grandparents, 31 ALR3d 1187.

Modern status of maternal preference rule or presumption in child custody cases, 70 ALR3d 262.

Award of custody of child when contest is between natural parent and step-parent, 10 ALR4th 767.

Right of incarcerated mother to retain custody of infant in penal institution, 14 ALR4th 748.

Propriety of awarding joint custody of children, 17 ALR4th 1013.

Child custody and visitation rights arising from same-sex relationship, 80 ALR5th 1.

Religion as factor in visitation cases, 95 ALR5th 533.

Restrictions on parent’s child visitation rights based on parent’s sexual conduct, 99 ALR5th 475.

Sec. 25.20.061. Visitation in proceedings involving domestic violence.

If visitation is awarded to a parent who has committed a crime involving domestic violence, against the other parent or a child of the two parents, within the five years preceding the award of visitation, the court may set conditions for the visitation, including

  1. the transfer of the child for visitation must occur in a protected setting;
  2. visitation shall be supervised by another person or agency and under specified conditions as ordered by the court;
  3. the perpetrator shall attend and complete, to the satisfaction of the court, a program for the rehabilitation of perpetrators of domestic violence that meets the standards set by the Department of Corrections under AS 44.28.020(b) , or other counseling; the perpetrator shall be required to pay the costs of the program or other counseling;
  4. the perpetrator shall abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours before visitation;
  5. the perpetrator shall pay costs of supervised visitation as set by the court;
  6. the prohibition of overnight visitation;
  7. the perpetrator shall post a bond to the court for the return and safety of the child; and
  8. any other condition necessary for the safety of the child, the other parent, or other household member.

History. (§ 39 ch 64 SLA 1996)

Notes to Decisions

Cost of supervised visitation. —

Court did not abuse its discretion by splitting the costs of supervised visitation between the mother and father when it granted the mother’s motion to have limited supervised visits with the parties’ minor children in a therapeutic setting for a six-month period. Thomas v. Thomas, — P.3d — (Alaska July 27, 2011), (memorandum opinion).

Supervised visitation. —

Superior court did not abuse its discretion following a domestic violence hearing by restricting a mother to supervised visitation because the mother had notice of the domestic violence hearing, attended the hearing with counsel, and had the opportunity to testify and present other evidence if she wished. The court acted well within its statutory authority when, as a result of the findings of custodial interference by the mother made at the hearing, the court modified custody and imposed conditions on her visitation. Kelly D. v. Anthony K., — P.3d — (Alaska May 29, 2019) (memorandum decision).

Conditions for visitation. —

Requiring a father to complete a batterers’ intervention program where a preponderance of the evidence showed that he had committed three domestic violence crimes against the mother within the prior five years was within the trial court’s discretion in considering visitation. Kenneth S. v. Beulah E., — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Cited in

J.M.R. v. S.T.R., 15 P.3d 253 (Alaska 2001); Misyura v. Misyura, 242 P.3d 1037 (Alaska 2010).

Collateral references. —

Restrictions on parent’s child visitation rights based on parent’s sexual conduct, 99 ALR5th 475.

Sec. 25.20.065. Visitation rights of grandparent.

  1. Except as provided in (b) of this section, a child’s grandparent may petition the superior court for an order establishing reasonable rights of visitation between the grandparent and child if
    1. the grandparent has established or attempted to establish ongoing personal contact with the child; and
    2. visitation by the grandparent is in the child’s best interest.
  2. After a decree or final order relating to child custody is entered under AS 25.20.060 or AS 25.24.150 or relating to an adoption under AS 25.23, a grandparent may petition under this section only if
    1. the grandparent did not request the court to grant visitation rights during the pendency of proceedings under AS 25.20.060 , AS 25.23, or AS 25.24; or
    2. there has been a change in circumstances relating to the custodial parent or the minor child that justifies reconsideration of the grandparent’s visitation rights.
  3. When determining whether to grant rights of visitation between a grandparent and grandchild under this section, AS 25.20.060 , or AS 25.24, and when determining the terms and conditions to be attached to a right of grandparent visitation, the court shall consider whether there is a history of child abuse or domestic violence attributable to the grandparent’s son or daughter who is a parent of the grandchild.

History. (§ 2 ch 30 SLA 1995)

Notes to Decisions

Standing to seek visitation. —

Because the grandmother was not allowed to intervene, she was never a party to the custody proceedings, meaning that she did not formally request the court to grant visitation rights during the pendency of the custody proceedings; she was therefore eligible to institute a separate action seeking visitation. Harvey v. Cook, 172 P.3d 794 (Alaska 2007).

Parents' fitness. —

In the context of a grandmother's petition for visitation, a superior court did not clearly err in finding that the mother and father were fit parents where there was no evidence that two incidents that occurred more than two years prior harmed the children, one incident occurred when the parents' marriage was at a low point and exacerbated by the grandmother's presence, and there was no history of domestic violence between the parents. Moore v. Ketah, — P.3d — (Alaska July 29, 2020).

Parents' preferences. —

Grandmother failed to prove by clear and convincing evidence that the parents' preference to limit contact with the grandmother until the relationship between the parents and the grandmother healed was clearly contrary to the children's best interests as she presented no evidence on the issue, but instead relied on the inference of detriment common to all similar relationships disrupted by geographical separation. Moore v. Ketah, — P.3d — (Alaska July 29, 2020).

Dismissal of grandparent’s visitation petition. —

Dismissal of grandparent’s visitation petition was appropriate because the trial court’s findings that the parents were fit, that the parents’ visitation restrictions were not unreasonable, and that there was no history of unreasonable visitation denial by the parents precluded the possibility that a constitutional visitation order could be entered. Ross v. Bauman, 353 P.3d 816 (Alaska 2015).

Discretion of court in granting visitation following adoption. —

Failure to grant the grandparents formal visitation rights under AS 25.23.130 was not an abuse of discretion where the court left grandparent visitation to the child’s discretion, finding that the child had facilitated such visitations in the past and would continue to do so in the future, and if the child did not follow through with these intentions, the grandparents could then petition the court for visitation rights due to a “change in circumstances” in accordance with paragraph (b)(2). C.L. v. P.C.S. (In re S.K.A.), 17 P.3d 769 (Alaska 2001).

Trial court properly denied a grandmother’s petition for visitation because she had made no attempt to reunify with her daughter and the daughter’s family without court involvement, had such limited interaction with the children that she did not clearly establish ongoing personal contact, and did not show that it was in the children’s best interests to have court-ordered visitation with her. Hawkins v. Williams, 314 P.3d 1202 (Alaska 2013).

Stated in

J.M.R. v. S.T.R., 15 P.3d 253 (Alaska 2001); In re Adoption of E.H., 431 P.3d 1190 (Alaska 2018).

Sec. 25.20.070. Temporary custody of the child.

Unless it is shown to be detrimental to the welfare of the child considering the factors under AS 25.24.150(c) , or unless the presumption under AS 25.24.150(g) is present, the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers an award of custody under AS 25.20.060 25.20.130 .

History. (§ 6 ch 88 SLA 1982; am § 2 ch 111 SLA 2004)

Notes to Decisions

Construction. —

This section presumes equal access while the court is considering a custody award. It does not apply an equal-access presumption to the final award of custody or visitation itself, which is governed by different standards. Sidney v. Gingerich, — P.3d — (Alaska Mar. 3, 2021) (memorandum decision).

Grandparents. —

Where the mother of two Indian children killed their father, the superior court entered an order granting the maternal grandparents visitation rights in the guardianship cases, and entered a second order in a child custody case formally recognizing the standing of both sets of grandparents to assert custody claims. Starr v. George, 175 P.3d 50 (Alaska 2008).

Shared custody upheld. —

Superior court did not err or abuse its discretion in ordering shared physical and legal custody where its adopted findings expressly considered the AS 25.24.150(c) custody factors, including the daughter's preference for shared custody, the parents' willingness to facilitate a relationship with the other parent, and domestic violence substance abuse evidence, as well as the daughter's physical, emotional, mental, religious, and social needs, and in weighing each factor, the court implicitly considered relevant shared custody factors required by AS 25.20.090 . Hardy v. Nix, — P.3d — (Alaska May 27, 2020) (memorandum decision).

Quoted in

Lauth v. Department of Health & Soc. Servs., 12 P.3d 181 (Alaska 2000).

Collateral references. —

Necessity of notice of application for temporary custody of child, 31 ALR3d 1378.

Sec. 25.20.080. Mediation of child custody matter.

  1. Except as provided in (f) and (g) of this section, at any time within 30 days after a petition for child custody is filed under AS 25.20.060 the court may order the parties to submit to mediation. Each party has the right to challenge peremptorily one mediator appointed.
  2. Mediation shall be conducted informally as a conference, or by telephone, or series of conferences, as determined by the mediator.  The parties to the action and a court-appointed representative of the minor children shall attend.
  3. If the mediator determines that mediation efforts are unsuccessful, the mediator shall terminate mediation and notify the court that mediation efforts have failed.  The custody proceeding shall proceed in the usual manner.
  4. Upon submission of the parties to mediation under this section, a pending child custody proceeding shall be stayed for a period of 30 days or until the court is notified that mediation efforts have failed. All court orders made during the pending custody proceeding remain in effect during the period of mediation.
  5. Costs of mediation shall be paid as ordered by the court by one party, by both parties, or by the state if both parties are indigent.
  6. The court may not order or refer parties to mediation in a proceeding concerning custody or visitation of a child if a protective order issued or filed under AS 18.66.100 18.66.180 is in effect. The court may not order or refer parties to mediation if a party objects on the grounds that domestic violence has occurred between the parties unless the court finds that the conditions of (g)(1) — (3) of this section are met. If the court proposes or suggests mediation under this subsection,
    1. mediation may not occur unless the victim of the alleged domestic violence agrees to the mediation; and
    2. the court shall advise the parties that each party has the right to not agree to mediation and that the decision of each party will not bias other decisions of the court.
  7. A mediator who receives a referral or order from a court to conduct mediation under (a) of this section shall evaluate whether domestic violence has occurred between the parties. A mediator may not engage in mediation when either party has committed a crime involving domestic violence unless
    1. mediation is requested by the victim of the alleged domestic violence, or proposed by the court and agreed to by the victim;
    2. mediation is provided by a mediator who is trained in domestic violence in a manner that protects the safety of the victim and any household member, taking into account the results of an assessment of the potential danger posed by the perpetrator and the risk of harm to the victim; and
    3. the victim is permitted to have in attendance a person of the victim’s choice, including an attorney.

History. (§ 6 ch 88 SLA 1982; am §§ 40, 41 ch 64 SLA 1996)

Cross references. —

For court rule relating to mediation, see Rule 100, Alaska Rules of Civil Procedure.

Sec. 25.20.090. Factors for consideration in awarding shared child custody.

In determining whether to award shared custody of a child the court shall consider

  1. the child’s preference if the child is of sufficient age and capacity to form a preference;
  2. the needs of the child;
  3. the stability of the home environment likely to be offered by each parent;
  4. the education of the child;
  5. the advantages of keeping the child in the community where the child presently resides;
  6. the optimal time for the child to spend with each parent considering
    1. the actual time spent with each parent;
    2. the proximity of each parent to the other and to the school in which the child is enrolled;
    3. the feasibility of travel between the parents;
    4. special needs unique to the child that may be better met by one parent than the other;
    5. 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 findings and recommendations of a neutral mediator;
  8. any evidence of domestic violence, child abuse, or child neglect in the proposed custodial household or a history of violence between the parents;
  9. evidence that substance abuse by either parent or other members of the household directly affects the emotional or physical well-being of the child;
  10. other factors the court considers pertinent.

History. (§ 6 ch 88 SLA 1982; am § 1 ch 52 SLA 1989; am § 3 ch 111 SLA 2004)

Notes to Decisions

Applied in

Farrell v. Farrell, 819 P.2d 896 (Alaska 1991); West v. Lawson, 951 P.2d 1200 (Alaska 1998).

Quoted in

McClain v. McClain, 716 P.2d 381 (Alaska 1986); Bell v. Bell, 794 P.2d 97 (Alaska 1990).

Cited in

Ulsher v. Ulsher, 867 P.2d 819 (Alaska 1994).

Sec. 25.20.095. Custody and visitation proceedings involving a military parent; delegation of visitation.

  1. In determining the availability of a parent for custody or visitation, if a parent is deployed or in a position where the parent may be deployed, the court shall take particular care to ensure that the child has the maximum opportunity, consistent with the best interests of the child, to have contact with the parent. Except as provided in this section, a parent’s temporary duty, mobilization, or deployment to military service and the resultant temporary disruption to the child of the parent may not be a factor in a court’s decision to grant or deny a petition for custody or visitation.
  2. A parent who is deployed may petition a court of competent jurisdiction for custody or visitation. The petition shall be construed to be an application for affirmative relief, consistent with the protections afforded under 50 U.S.C. App. 501 — 596 (Servicemembers Civil Relief Act) and may include a request to delegate the deployed parent’s visitation rights to a family member.
  3. A court shall order a delegation of visitation rights based on a petition filed under (b) of this section if the court finds that
    1. the family member receiving the delegation has an existing close relationship to the child; and
    2. the delegation is in the child’s best interest.
  4. A hearing on a petition filed under this section shall be expedited by the court on a motion filed by the deployed parent.
  5. A parent who is deployed may not be found to have waived any rights or protections with regard to custody or visitation of the deployed parent’s child unless the deployed parent expressly waives the right or protection in writing or on the record.
  6. A court order entered under this section must require that
    1. the nondeployed parent make the child reasonably available for visitation to the deployed parent when the deployed parent is on leave if the visits are in the child’s best interest;
    2. each parent facilitate contact, including telephonic and electronic contact, between the other parent and the child if the contact is in the child’s best interest; electronic contact with a video image must be facilitated whenever feasible;
    3. the deployed parent provide timely information to the nondeployed parent regarding the deployed parent’s leave schedule; and
    4. each parent provide immediate notification of a change of address or contact information as provided under AS 25.20.110(e)(5) .
  7. In making a determination of the best interests of the child, the court shall consider the factors under AS 25.24.150(c) and apply the rebuttable presumption under AS 25.24.150(g) to visitation, delegation, and custody orders issued under this section. In addition, there is a rebuttable presumption that a deployed parent’s visitation rights may not be delegated to a family member who has a history of perpetrating domestic violence against a spouse, a child, or a domestic living partner, or to a family member with an individual in the family member’s household who has a history of perpetrating domestic violence against a spouse, a child, or a domestic living partner.
  8. In this section,
    1. “deployment” or “deployed” means military services performed in compliance with a valid order received by an active duty or reserve member of the armed services of the United States, National Guard, or United States Coast Guard to report for combat operations, contingency operations, peacekeeping operations, temporary duty, a remote tour of duty, or other active service for which the deploying parent reports unaccompanied by any family member;
    2. “family member” means a person who is an adult sibling, aunt, uncle, first cousin, or grandparent related by blood, adoption, or marriage or a stepparent to the child who is the subject of a custody order issued under this section;
    3. “military service” includes the period from which the deployed parent receives and is subject to deployment orders and the period in which the parent is awaiting travel or remains deployed because of sickness, wounds, leave, or other lawful cause;
    4. “parent” includes a legal guardian of the child.

History. (§ 1 ch 44 SLA 2010)

Cross references. —

For effect of (d) of this section on Rule 77(g), Alaska Rules of Civil Procedure, see § 5, ch. 44, SLA 2010, in the 2010 Temporary and Special Acts.

For effect of this section on Rule 99(a), Alaska Rules of Civil Procedure, see sec. 4, ch. 44, SLA 2010, in the Temporary and Special Acts.

Effective dates. —

Section 7, ch. 44, SLA 2010 makes this section effective June 5, 2010, in accordance with AS 01.10.070(c) .

Notes to Decisions

Regular deployments held not “temporary.” —

In a custody determination, the trial court properly considered the father’s military deployments in its assessment of the child’s best interest; it was reasonable to conclude that regular deployments of up to four months of every year for the indefinite future were not “temporary” because they were not continuing for a limited time. Rosenblum v. Perales, 303 P.3d 500 (Alaska 2013).

Joint legal custody award held proper. —

Superior court did not abuse its discretion, when noncustodial parent was serving in the military, by awarding the parents joint legal custody of their children even though the non-custodial parent was serving in the military and was subject to deployment. Ruppe v. Ruppe, 358 P.3d 1284 (Alaska 2015).

Sec. 25.20.100. Reasons for denial to be set out.

If a parent or the guardian ad litem requests shared custody of a child and the court denies the request, the reasons for the denial shall be stated on the record.

History. (§ 6 ch 88 SLA 1982)

Notes to Decisions

Deferral to trial court determinations proper. —

Where a father contended that trial court erred in refusing to award shared physical custody, appellate court deferred to trial court’s determination that it was in the children’s best interests to reside primarily with their mother during the school year and that they should be returned to her on Sunday evenings on the father’s weekends; father was obligated to pay child support according to the formula set forth in Alaska R. Civ. P. 90.3(a)(2)(C)-(D). Tillmon v. Tillmon, 189 P.3d 1022 (Alaska 2008).

Quoted in

Duffus v. Duffus, 932 P.2d 777 (Alaska 1997); J.L.P. v. V.L.A., 30 P.3d 590 (Alaska 2001).

Cited in

Miller v. Miller, 739 P.2d 163 (Alaska 1987); Holl v. Holl, 815 P.2d 379 (Alaska 1991).

Sec. 25.20.110. Modification of child custody or visitation.

  1. An award of custody of a child or visitation with the child may be modified if the court determines that a change in circumstances requires the modification of the award and the modification is in the best interests of the child. If a parent opposes the modification of the award of custody or visitation with the child and the modification is granted, the court shall enter on the record its reason for the modification.
  2. When making a determination relating to child custody under (a) of this section, the court shall consider the past history of the parents with respect to their compliance with the child support payment provisions of temporary or permanent support orders or agreements relating to the child or to other children. Under this subsection, the court may consider a parent’s failure to pay child support only if the parent had actual knowledge of the amount of the child support obligation and had funds available for payment of support or could have obtained those funds through reasonable efforts, as determined by the court.
  3. In a proceeding involving the modification of an award for custody of a child or visitation with a child, a finding that a crime involving domestic violence has occurred since the last custody or visitation determination is a finding of change of circumstances under (a) of this section.
  4. Except as provided in (e) — (h) of this section, a parent’s temporary duty, mobilization, or deployment to military service and the resultant temporary disruption to the schedule of a child of the parent may not be a factor in finding a change of circumstances on a motion to modify child custody or visitation.
  5. A court may provide for a temporary modification of a custody or visitation order during the period of a parent’s deployment to military service to make reasonable accommodation for the deployment. The temporary order must specify that deployment is the basis of the order and include provisions for
    1. custody or reasonable visitation during a period of leave granted to the deployed parent if the custody or visitation is in the child’s best interest;
    2. termination of the temporary order and resumption of the permanent order within 10 days after notification of the deployed parent’s ability to resume custody or visitation unless the court finds that resumption of the custody or visitation order in effect before deployment is no longer in the child’s best interest; the nondeployed parent shall bear the burden of proving that resumption of the order is no longer in the child’s best interest;
    3. a hearing if a child of a deployed parent has been moved out of state and the nondeployed parent has filed a motion that alleges that resumption of the permanent custody order will result in immediate danger of irreparable harm to the child or that the presumption under AS 25.24.150(g) exists;
    4. delegation, on request of the deployed parent, of the deployed parent’s visitation rights under an existing order, if any, to another family member who has an existing close relationship to the child if the delegation is in the child’s best interest; and
    5. immediate notification by each parent of a change of address or contact information to the other parent and to the court; if a valid court order issued under AS 12.61.120 or AS 25.20.060 or an equivalent provision in another jurisdiction is in effect that requires that the address or contact information of the parent be kept confidential, the notification shall be made to the court only, and a copy of the order shall be included in the notification.
  6. A court shall expedite a hearing to modify custody or visitation on a motion made by a parent who is subject to deployment.
  7. In making a determination of the best interests of the child, the court shall consider the factors under AS 25.24.150(c) and apply the rebuttable presumption under AS 25.24.150(g) to visitation, delegation, and custody orders issued under this section. In addition, there is a rebuttable presumption that a deployed parent’s visitation rights may not be delegated to a family member who has a history of perpetrating domestic violence against a spouse, a child, or a domestic living partner, or to a family member with an individual in the family member’s household who has a history of perpetrating domestic violence against a spouse, a child, or a domestic living partner.
  8. In this section, “deployment,” “deployed,” “family member,” “military service,” and “parent” have the meanings given in AS 25.20.095 .

History. (§ 6 ch 88 SLA 1982; am § 2 ch 130 SLA 1990; am § 42 ch 64 SLA 1996; am § 2 ch 44 SLA 2010)

Cross references. —

For effect of (f) of this section on Rule 77(g), Alaska Rules of Civil Procedure, see § 5, ch. 44, SLA 2010, in the 2010 Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective June 5, 2010, added subsections (d), (e), (f), (g), and (h).

Notes to Decisions

Analysis

I.General Consideration

Custody change standard is best interests of the child, changed circumstances alone do not justify a change of custody. —

Where the requested change in custody was not in the child’s best interests, it was unnecessary to determine whether there was a substantial change in circumstances, as the dispositive issue was best interests, not the alleged change in circumstances. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

Applicability of changed circumstances doctrine. —

The changed circumstances doctrine applies to modifications of stipulated child custody arrangements in effect for a significant period of time. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Court, on own motion, can find change of circumstance in a child custody case. T.M.C. v. S.A.C., 858 P.2d 315 (Alaska 1993).

Creation of visitation schedule. —

Where parties did not have a schedule, setting a schedule was not a modification, and had the schedule conformed to the parties’ plan for a fifty-fifty split in custody, it would not have required a showing of changed circumstances; because the parents were unable to agree on the schedule, the court had the authority to establish a specific schedule, but it was an abuse of discretion to adopt a sixty-forty custody schedule where the parties continued to agree that fifty-fifty custody was in the child’s best interests. Havel v. Havel, 216 P.3d 1148 (Alaska 2009).

For modification of custody to be justified, two circumstances must correspond: (1) the noncustodial parent must bear the burden in the modification proceeding of establishing that a change in circumstances has occurred, and (2) the modification must be in the best interests of the child. Nichols v. Mandelin, 790 P.2d 1367 (Alaska 1990).

Evidence required for modification of visitation not sufficient to modify custody. —

Modification of a visitation schedule was not erroneous because the evidence supported modification of the time-sharing schedule set out in the parties’ agreement, but was not sufficient to support modification of custody. Martin v. Martin, 303 P.3d 421 (Alaska 2013).

Modification motion not barred by finality principle. —

Finality principle did not bar a mother from basing a custody modification motion on 1999 and 2004 domestic violence incidents, any new claims of domestic violence occurring between 2005 and 2007, or claims of domestic violence occurring after a December 2007 hearing because none of the undisputed or alleged incidents were addressed by the trial court in its custody determinations. McAlpine v. Pacarro, 262 P.3d 622 (Alaska 2011).

Degree of change required. —

The change of circumstances required to modify visitation is not as great as that required for a change in custody. Carter v. Brodrick, 816 P.2d 202 (Alaska 1991); Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Court order requiring change in procedure after two years. —

Court-ordered two-year adjustment period in which one parent would have primary custody and other parent would have liberal visitation rights, with parents to share custody equally on an alternating week basis after two years, was not automatic modification of custody not based on statutorily mandated factors for a change in custody. Deininger v. Deininger, 835 P.2d 449 (Alaska 1992).

Formalization of custodial or visitation arrangements. —

Informal or de facto modifications of custodial or visitation arrangements should be formalized, since child support amounts and the number of visitation days allotted to the non-custodial parent are interdependent under Alaska Civ. R. 90.3(a) and (b). Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Actions by a custodial parent that substantially interfere with the noncustodial parent’s visitation rights are sufficient to constitute a change in circumstances, which may justify and require a modification of the visitation order if such modification is in the best interest of the child. Hermosillo v. Hermosillo, 797 P.2d 1206 (Alaska 1990).

Applied in

Cusack v. Cusack, 202 P.3d 1156 (Alaska 2009).

Quoted in

Jenkins v. Handel, 10 P.3d 586 (Alaska 2000); Stephanie W. v. Maxwell V., 274 P.3d 1185 (Alaska 2012); Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017); Edna K. v. Jeb S., 467 P.3d 1046 (Alaska 2020).

Cited in

Maxwell v. Maxwell, 37 P.3d 424 (Alaska 2001); Morris v. Horn, 219 P.3d 198 (Alaska 2009).

II.Change in Circumstances

Burden of proving substantial change in circumstances is on moving parent. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); Garding v. Garding, 767 P.2d 183 (Alaska 1989); House v. House, 779 P.2d 1204 (Alaska 1989); Carter v. Brodrick, 816 P.2d 202 (Alaska 1991); Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Where there was evidence of a deteriorating relationship between the custodial mother and her teenage son in the months preceding the hearing, and where the teenager moved to his father’s home and refused to live with his mother, these changes clearly constituted a substantial change in circumstances that justified a review of the existing custody arrangement, and the superior court did not abuse its discretion in determining that the father had satisfied his burden of demonstrating a substantial change in circumstances. Valentino v. Cote, 3 P.3d 337 (Alaska 2000).

The moving parent for a modification in custody must show changes that affect the child’s welfare to overcome the court’s deep reluctance to shuttle children back and forth between parents. Schuyler v. Briner, 13 P.3d 738 (Alaska 2000).

When mother filed a motion for supervised child visitation 17 months after she was arrested for child abuse, the superior court properly found that her deferred sentencing agreement constituted a material change in circumstances because it ended the no contact order imposed while her criminal case was pending. Thomas v. Thomas, — P.3d — (Alaska July 27, 2011), (memorandum opinion).

In a child custody modification case, the superior court did not abuse its discretion in finding a material change of circumstances due to the mother’s arrests and conduct with her boyfriends that involved domestic violence and a gun. Heather W. v. Rudy R., 274 P.3d 478 (Alaska 2012).

Burden not carried. —

Father failed to carry the burden of proving a substantial change in circumstances, where, apart from the father’s attempt to gain sole custody, there was no evidence to support the superior court’s finding that the parties had become “unable to cooperate with each other to the extent necessary to make a joint custody arrangement work.” Garding v. Garding, 767 P.2d 183 (Alaska 1989).

Mother, who sought modification of child custody, failed to show a substantial change in circumstances; her allegations that the child’s grades had declined and that he was experiencing other problems in his father’s custody were not offered until her reply to the father’s response to her motion, and the mother was not entitled to a hearing. King v. Carey, 143 P.3d 972 (Alaska 2006).

Where mother had physical custody of daughter during the school year and father was granted summer visitation, he proposed that the parties reverse their custody arrangement and try a three-week experiment arrangement; where mother refused to formalize a custody change and insisted that the child be returned to her, superior court erred by granting father’s motion for modification because there was no substantial change of circumstances as required by subsection (a). McLane v. Paul, 189 P.3d 1039 (Alaska 2008).

Trial court was not required to analyze the best interests of the children because the mother failed to demonstrate that there had been a substantial change in circumstances that would have justified modifying the trial court’s custody and visitation order. The father’s relocation was specifically contemplated by the parties’ agreement. Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015).

Superior court, following an award of child custody to the grandparents, did not err in denying the mother's motion to modify custody, without an evidentiary hearing, because the mother did not show a substantial change of circumstances affecting the child's best interests, as the mother's mental health assessment, four months sobriety from marijuana use and commitment to abstain from such use during the mother's then pregnancy, and relationship with her fiancé did not constitute a substantial change that affected the child's best interests. Abby D. v. Sue Y., 378 P.3d 388 (Alaska 2016).

Denying a mother's motion to modify custody of a daughter was not error where the father's new work schedule and family arrangements did not demonstrate any material negative impact on the child, thus, no substantial change in circumstances had occurred, and enforcing a prior order requiring that the daughter and mother have two uninterrupted calls per week was more appropriate than a change in custody. Moore v. McGillis, 408 P.3d 1196 (Alaska 2018).

Father's motion to modify child custody based on a substantial change in circumstances was properly denied because the changes identified were the outgrowth of the superior court's decision to allow the mother to move to Germany with the children, and it had anticipated that there might be setbacks as the children adapted to German schooling; the father did not address the concern that he was able to exert undue influence on the children; there was no abuse of discretion in denying a change of custody when a parent did not address concerns about the children potentially having been coached and influenced, making it impossible to determine their true preferences; and the eldest child's age alone did not constitute a change in circumstances. Bennett v. Bennett, — P.3d — (Alaska Sept. 25, 2019) (memorandum decision).

No substantial change in circumstances justifying a modification of custody was shown because (1) the parties did not agree to modification, (2) the children stated no such preference, (3) passage of time did not suffice, (4) the parties' inability to communicate was not a change, and (5) a change in a mother's child-care ability was not substantial. Berry v. Berry, — P.3d — (Alaska Dec. 11, 2019) (memorandum decision).

Parental preference. —

Superior court erred when it failed to apply the biological parent preference and determined that the father bore the usual burden of a non-custodial parent moving to modify the existing custody arrangement; Interpreting the order as permanent and dispositive of the father's parental preference was an abuse of discretion, the parental preference therefore did not drop out, and the grandmother continued to have the burden of proving by clear and convincing evidence that the preference should be overcome. Daves v. McKinley, 425 P.3d 92 (Alaska 2018).

Preliminary injunction. —

Superior court properly denied a divorced father’s request for a preliminary injunction to prevent the mother from leaving Alaska with their children; the father did not demonstrate a likelihood of success on the merits of his claim because Alaska law did not require a custodial parent to obtain permission from the non-custodial parent before moving out of state. The father still had the option of filing a motion to modify custody based on the change in circumstances because the superior court retained jurisdiction over the parties and their children despite the mother’s move. Misyura v. Misyura, 244 P.3d 519 (Alaska 2010).

Parties’ ability to communicate.—

A mother's claim that there had been a substantial change in circumstances warranting a change in legal custody was denied. The evidence was sufficient to conclude that the parties' ability to communicate, though not ideal, was not unusual in the circumstances and was adequate to support continued joint decision-making. Collier v. Harris, 377 P.3d 15 (Alaska 2016).

Effect of hostility between parents. —

Ordinarily, hostility and dispute between the parents, in and of itself, will not be considered a substantial change of circumstances unless the adverse impact on the child is extreme. The effect of hostility between the parents, however, may combine with other significant changes in circumstance to amount, in the aggregate, to a substantial change sufficient to warrant change of custody. Long v. Long, 816 P.2d 145 (Alaska 1991).

Finding of a complete breakdown in communication between the parties, making joint custody impracticable and injurious to the children’s overall well-being, was a sufficient change in circumstances to support modification of custody Riggs v. Coonradt, 335 P.3d 1103 (Alaska 2014).

Breach of custody agreement. —

Father’s breaches of the visitation provisions of the custody agreement constituted changed circumstances under the provisions of subsection (a). Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002).

Inability to pay arrearage. —

Trial judge was not required to articulate her consideration of the father’s arrearage where the uncontradicted evidence supported a finding that the father’s arrearage was the result of an inability to pay; the father’s testimony was sufficient to support a finding that the exception in subsection (b) was met. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

Superior court’s failure to consider the arrearage, or the failure to articulate consideration of it, in modifying a child custody order was not an abuse of discretion where the mother testified that the father was very aware that she was not going to be current on her child support based on what she earned, and that suggested that she was behind in her support payments because she could not afford to make them. Wade R. v. Melinda R., — P.3d — (Alaska Oct. 8, 2014) (memorandum decision).

The custodial parent’s decision to leave the state with the children constitutes a substantial change in circumstances. House v. House, 779 P.2d 1204 (Alaska 1989); Pinneo v. Pinneo, 835 P.2d 1233 (Alaska 1992).

Anticipated relocation by parent constitutes changed circumstance. —

Where a parent filed for a custody determination on the basis of an anticipated move out of state, the anticipated move constituted a change in circumstances that required determination of custody following the move. Nelson v. Nelson, 263 P.3d 49 (Alaska 2011).

In-state move as change in circumstances. —

Custodial parent’s in-state move of a considerable distance, further complicated by the need to arrange supervision in accordance with a visitation order, constituted a change in circumstances sufficient to require an evidentiary hearing on modification of the order. Acevedo v. Liberty, 956 P.2d 455 (Alaska 1998).

Move to another state. —

Trial court did not clearly err when it found the mother's move to Hawaii was legitimate, as she credibly cited Hawaii's opportunities for a larger income, increased family stability, and a better environment. Judd v. Burns, 397 P.3d 331 (Alaska 2017).

Superior court did not abuse its discretion by failing to provide an alternative custody and visitation arrangement in the event the mother did not move because it could reasonably rely on the record to create a schedule that assumed the mother's move; the parties appeared to agree at trial that the mother was intent on moving to California, and the father doubted only her motive for moving. Darrell N. v. Jolina N., — P.3d — (Alaska May 13, 2020) (memorandum decision).

Visitation agreement. —

Inability of parents to arrive at a mutually agreeable visitation arrangement in accordance with their original agreement represented a change in circumstances requiring reexamination of the physical custody arrangement. Siekawitch v. Siekawitch, 956 P.2d 447 (Alaska 1998).

Modifying nonparent’s custody. —

A parent moving to modify a nonparent’s court-ordered, permanent custody must show no less substantial a change in circumstances than a parent in a typical case. C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998).

Changed circumstance established. —

Denying the mother's motion to modify her son's custody was error where the intervention of the previously absent biological father was a changed circumstance, and thus, the child's best interest should have been weighed to fashion an appropriate custody arrangement. Moore v. McGillis, 408 P.3d 1196 (Alaska 2018).

Superior court did not err in finding that there had been a substantial change in circumstances warranting a modification of the custody arrangement granting primary physical custody to the father because the mother had left the child unsupervised in her boyfriend's care; the boyfriend had a violent crime conviction; and the child was exposed to at least one act of domestic violence between the mother and her boyfriend. Adrianne C. v. Christopher D., — P.3d — (Alaska Jan. 13, 2021) (memorandum decision).

Substantial change in circumstances sufficient to support transfer of custody. —

Substantial change took place in the mother’s circumstances, justifying transfer of custody from the father to the mother, where there was evidence in the record regarding her overall maturation, her changed marital status, her full-time employment, and her sustained control of a former drinking problem. Nichols v. Mandelin, 790 P.2d 1367 (Alaska 1990).

Superior court did not abuse its discretion in finding a substantial change of circumstances warranting modification of child custody where it found that the mother filed a domestic violence petition and took other steps solely to prevent visitation, it carefully considered the best interests factors, its findings that primary custody should be awarded to the father was supported by the evidence, and the finding that the mother would not have facilitated a relationship between the child and father was supported by her past and ongoing behavior. Scott v. Gaines, — P.3d — (Alaska June 14, 2017) (memorandum decision).

Prima facie showing. —

Father made a prima facie showing that there had been a substantial change in circumstances since the 2016 custody order and was therefore entitled to an evidentiary hearing to determine whether there had in fact been a substantial change and, if so, whether custody should be modified. It was error to deny him that hearing. Beckwith v. Helm, — P.3d — (Alaska June 23, 2021) (memorandum decision).

Temporary change in circumstances. —

Trial court did not err when it denied the mother’s motion to modify custody without holding an evidentiary hearing, as the mother failed to make a prima facie case for a permanent modification of custody given that the change in circumstances was only temporary while the father trained for a new job. Hope P. v. Flynn G., 355 P.3d 559 (Alaska 2015).

Change in circumstances insufficient to support change of custody order. —

Trial court’s findings of changes of circumstances that referred to fact of mother’s having entered into a lesbian relationship, without a specific finding as to how such relationship adversely affected the child, were insufficient to support a change of custody order. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

In a change of custody hearing based on alleged change of circumstances, it is impermissible to rely on any real or imagined social stigma attaching to mother’s status as a lesbian. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Where father had physical custody of the couple’s two sons for nine months, and the mother for three, and the mother had been granted regularly scheduled phone contact by the court, occasional missed calls did not constitute a change of circumstances. However, a pervasive pattern of missed calls, or calls where the children were distracted by television or video games, could constitute a change in circumstances. Further, changes in the father’s travel schedule, and occasional fighting heard in the background of calls, did not constitute reasons for a change in custody. Hunter v. Conwell, 276 P.3d 413 (Alaska 2012).

Superior court erred in awarding primary physical custody to a father because its findings regarding a substantial change in circumstances were in part clearly erroneous and were otherwise inadequate; the finding that the father obtained local employment did not appear to show a change in circumstances, the mother's poor communication with the father did not appear to be new, and the record provided weak support for a finding that the children's struggles in school were out of the ordinary. Jennifer L. v. Geoffrey G., — P.3d — (Alaska May 19, 2021) (memorandum decision).

Custody modification was remanded for further findings on the effect of changed circumstances, where the primary changed circumstance on which the father relied on appeal, i.e., the mother’s decision to leave the state, was never found by the trial court to negatively affect the child’s best interests or to merit a change in custody. Lee v. Cox, 790 P.2d 1359 (Alaska 1990).

Modification of visitation order. —

The change in circumstances required for modification of visitation rights need not rise to the level sufficient to warrant a change of custody. Hermosillo v. Hermosillo, 797 P.2d 1206 (Alaska 1990).

De facto change in visitation may be change of circumstances for the purpose of modifying decreed visitation, and de facto changes of a lengthy duration, especially where they are such as to change child support payments when given de jure status, should qualify. Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Evidence of alcohol abuse by the mother and her untreated mental health issues, including allegations of physical abuse by the mother, supported a finding of a substantial change in circumstances. Frackman v. Enzor, 327 P.3d 878 (Alaska 2014).

Parent's interference with children's therapy. —

Superior court did not abuse its discretion in entering an order modifying custody, which awarded sole legal and physical custody of her three children to the father and limited the mother to supervised visitation pending the children's full engagement in therapy, because the mother's interference with the children's therapy amounted to a change in circumstances, and the children's best interests were served by an award of sole legal and physical custody to the father while therapy took hold. It was within ther court's broad discretion to determine that the children's special need for psychotherapy was their predominant need and that the mother was not currently capable of supporting that need. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018).

Interference with visitation as change of circumstances. —

Superior court did not err in granting a mother’s motion for sole legal and primary physical custody because its factual finding supported the conclusion that the father substantially interfered with the mother’s visitation rights, which was a substantial change in circumstances justifying a modification of the existing custody arrangement; the father took the parties’ child out of the State without informing the mother and caused the mother to miss six visitations in a row. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Although a mother's allegations that her parents interfered with her visitation rights to her child were serious and might have warranted a modification to the visitation order, the mother sought to modify custody, not visitation. Moreover, with the finding both that the mother was an unfit parent and that being in the mother's custody would be detrimental to child's welfare being present, the alleged interference with the mother's visitation rights did not justify a modification of custody. Abby D. v. Sue Y., 378 P.3d 388 (Alaska 2016).

III.Best Interests of Child

Judicial inquiry concerns child’s well-being. —

When a court determines the best interests of the child under the changed circumstances doctrine, the scope of judicial inquiry is limited to facts directly affecting the child’s well-being. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

In addition to finding a substantial change in circumstances, under subsection (a) a court must also consider whether a modification of custody was in the best interests of the child; a court determining the best interests of a child by considering nine statutory factors and a judge considering the best interests of a child must consider the findings made at the original hearing. Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002).

Effect of parents’ hostility on child. —

Superior court properly modified the child custody award under subsection (a) where sufficient evidence showed that the father had attempted to manipulate the mother and that, as a result, their interpersonal relationship hurt the child; also, contrary to the father’s assertion, the superior court judge never referred to the father’s potential deployment with the U.S. Army in his findings on the stability and continuity of the child’s custody. Chesser v. Chesser-Witmer, 178 P.3d 1154 (Alaska 2008).

Trial court did not err in modifying a custody order and awarding the mother sole legal and primary physical custody because the father consistently confronted the mother and her live-in boyfriend about their relationship in front of the children; the father’s conduct toward, and negative comments about, the mother had a substantial negative impact on the children. Derrick S. v. Dawn S., — P.3d — (Alaska July 25, 2012), (memorandum opinion).

Out-of-state move. —

Where one parent moved to a distant locale, a six-month alternating physical custody arrangement was properly vacated on the basis that it disrupted the stability of the three-year-old child’s life and was not in the child’s best interests. West v. Lawson, 951 P.2d 1200 (Alaska 1998).

Court did not err in determining best interests of the children in a modification proceeding where the father planned to move out of state with the children, and it considered the children’s ties to their community, school, friends, and cultural environment in its determination. Barrett v. Alguire, 35 P.3d 1 (Alaska 2001).

Where a mother and father were given shared physical custody of their son after a divorce, and the mother later filed a motion to modify custody prior to her move to another state, the trial court did not abuse its discretion by awarding the mother primary physical custody, since the mother would not be working outside of the home and it was in the child’s best interests. Meier v. Cloud, 34 P.3d 1274 (Alaska 2001).

Granting a father’s motion to modify child custody was proper where the move out of state constituted a substantial change of circumstances and the court’s analysis of the best interest factors supported awarding the father custody of the children during the school year in Virginia. The superior court emphasized the quality of the schools and the extracurricular opportunities available in Virginia, along with the older child’s preference for Virginia. Sheffield v. Sheffield, 265 P.3d 332 (Alaska 2011).

Because the supreme court could determine whether the superior court abused its discretion in weighing the best interests factors, the case was remanded for renewed consideration of the challenged factors along with the symmetrical analysis; the superior court's analysis of the child's needs and the parents' capability and desire to meet them did not support its conclusion that it was in the child's best interests to remain in Alaska. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

It was improper to find that it was in a daughter's best interests to remain in Alaska with her father during the school year because the superior court failed to conduct the required symmetrical analysis; because the legitimacy of the mother's move was undisputed, the superior court was required to evaluate and symmetrically analyze the impact on the child of the move, but it failed to consider how stability in Alaska would be affected by the child's prolonged separation from her mother. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Modification denied. —

Father’s custody modification motion was properly denied where the evidence supported the superior court’s best interests findings that the mother provided the children with a stable, satisfactory environment; the children became stressed during visitation with their father, and the children were very close and should live together. Worthington v. Worthington, — P.3d — (Alaska Aug. 24, 2011), (memorandum opinion).

Superior court did not err by denying the father’s motions for visitation and to modify child custody because he did not comply with the superior court’s order for a psychological evaluation — a necessary predicate for him to obtain face-to-face visitation or a change in custody. Further, he was not entitled to a change in custody based on his allegations that the mother interfered with his telephonic visitation; the mother acted within the terms of the applicable court order. Kurka v. Kurka, — P.3d — (Alaska Nov. 28, 2012), (memorandum opinion).

Modification justified. —

The conclusions that a substantial change in circumstances had occurred and that granting custody to the father was in the best interests of the children were adequately supported by the record. B.B. v. D.D., 18 P.3d 1210 (Alaska 2001).

Court properly modified child custody to a father where the mother interfered in the father’s relationship with the child, which demonstrated an unwillingness to allow an open and loving relationship, and the mother’s assisted living facility raised a concern about her ability to meet the child’s physical, emotional, mental, and social needs. Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005).

Superior court properly concluded that it was in the child’s best interests to award sole legal and primary physical custody to the mother because its findings that the mother was better positioned to provide the child a stable home and had the better ability to care for her needs were not clearly erroneous. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Superior court factored in a child’s preference to live with his mother under the best interest analysis, but did not give it a lot of weight in ordering that the father have custody; the child believed that the separation was harder on the mother and had more freedom with the mother than with the father. The superior court did not substitute findings in a separate custody proceeding for its findings in the present case. Wells v. Barile, 358 P.3d 583 (Alaska 2015).

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the first two factors set forth in set forth in AS 25.24.150(c)(1) and (2) favored the mother because she had made extensive efforts to address the child's mental health needs, and the father had not fully recognized or accepted the extent of the child's mental health issues. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the factors set forth in subsection (c) favored the mother in light of the child's fragile condition, profound mental health issues, and repeated hospitalizations because the record contained evidence of the child's hospital stays and treatment program. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

No abuse of discretion. —

Superior court did not abuse its discretion in determining that remaining in the father’s custody and moving with him to California would be in the children’s best interests. House v. House, 779 P.2d 1204 (Alaska 1989).

Mother failed to establish clear error or an abuse of discretion on the part of the superior court which decided to modify a previously-entered child custody award, and to award the custody of all four children to their father, where court supported its award with a brief analysis of each of the best interests factors set forth in AS 25.24.150(c)(1) -(9). Melendrez v. Melendrez, 143 P.3d 957 (Alaska 2006).

Neither the court’s order for modification of primary custody nor its order for supervised visitation constituted abuse of discretion where circumstances had changed and modification was clearly in the best interests of the children. R.M. v. S.G., 13 P.3d 747 (Alaska 2000).

Court properly found that it was in the children’s best interests for the mother to have sole legal custody because the court emphasized the mother’s track record as a primary caregiver, and it found that while the mother had promoted the children’s relationship with the father, the father undermined their relationship with the mother. William P. v. Taunya P., 258 P.3d 812 (Alaska 2011).

Application of best interest analysis. —

Majority of the parties’ final custody order was proper because the superior court properly considered the parties’ current circumstances and had explicitly noted that if and when the father returned to court, a best interests analysis would be applied. Jack C. v. Tally C., 284 P.3d 13 (Alaska 2012).

IV.Hearing

Right to hearing. —

A father’s right to a hearing on child custody was not satisfied by a hearing in a domestic violence proceeding at which an award of temporary custody was made, since the hearing was held without notice that permanent custody was at issue and it did not satisfy the hearing requirements for permanent custody modification. Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998).

Motion by a father for modification of a custody order to obtain custody of his daughter was really a motion for reconsideration of an order entered only two weeks earlier in a proceeding ostensibly focused on his son, but at which the court also considered, and rendered a ruling regarding, the daughter’s situation; in the absence of changed circumstances in those two weeks, the father had no right to a hearing. J.L.P. v. V.L.A., 30 P.3d 590 (Alaska 2001).

It was error to modify parties’ custody arrangement without holding a hearing or making factual findings; the superior court’s modification was not insignificant, and the parties’ original arrangement was not by court order, so the modification was an initial determination that required a hearing. Elliott v. Elliott, 129 P.3d 449 (Alaska 2006).

Trial court erred in failing to hold a hearing in response to a mother’s motion to modify child custody because the mother had demonstrated a prima facie case as to changed circumstances; the matter was remanded for the trial court to consider factors in this section to determine whether a change in custody or visitation was appropriate. Iverson v. Griffith, 180 P.3d 943 (Alaska 2008).

Trial court erred in denying a mother’s motion to modify a child custody order without conducting an evidentiary hearing; because a finding of domestic violence would establish changed circumstances, it was error to not address the mother’s allegations of child abuse or domestic violence. Barile v. Barile, 179 P.3d 944 (Alaska 2008).

When a mother alleged, among other things, verbal child abuse, the mother was entitled to a hearing on her motion to modify child custody. Hunter v. Conwell, 219 P.3d 191 (Alaska 2009).

Show-cause hearing. —

Father’s due process rights were violated by lack of notice that his custody rights were at issue at show-cause hearing which preceded entry of modification order; it was error to modify custody permanently on the basis of a show-cause hearing initiated to address one parent’s alleged attempt to frustrate the other parent’s visitation rights. Vinzant v. Elam, 977 P.2d 84 (Alaska 1999).

Court not obligated to hold hearing. —

The trial court is not required to hold a hearing whenever a parent moves for a change in visitation; thus, where no facts were disputed with respect to the child’s desire to see her father, and there were no factual issues that an evidentiary hearing would flesh out, a hearing was not required. Nelson v. Jones, 944 P.2d 476 (Alaska 1997), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Trial judge’s decision to deny the mother’s motion for modification without a hearing was not an abuse of discretion where the mother’s concerns did not demonstrate that any changes in circumstances between the May 2007 hearing and the mother’s motion to modify custody were significant enough to justify relitigating the issue of custody; the mother’s motion did not demonstrate sustained noncooperation since the time of the previous hearing sufficient to suggest that the issue of legal custody should be relitigated. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

There was not a changed circumstance warranting a hearing on the modification of child custody because, as the superior court noted when it denied the father's first motion, completion of counseling was a condition for his visitation with his daughter and was not a changed circumstance justifying a change in custody; the father's allegations about the mother's mental health, even if proven, were not linked to any allegation that her mental health adversely affected their daughter's welfare; and the father's conclusory arguments about the current custody order's interference with the girl's exposure to Filipino language and culture were not sufficient, even if proven, to warrant a hearing. Raymond V. v. Danté E., — P.3d — (Alaska Aug. 5, 2020).

Right to hearing. —

Superior court acknowledged that a sex incident between daughter and her brother constituted a change in circumstances in the custody decree, but denied mother’s motion for modification without a hearing; superior court should have given mother an opportunity to show that the changed circumstances, considered in conjunction with other relevant facts bearing upon the children’s best interests, warranted modification of the custody decree. Andrea S. v. David R., 116 P.3d 589 (Alaska 2005).

Motion to modify custody not barred by res judicata or collateral estoppel. —

Superior court correctly ruled that a mother’s motion to modify custody was not barred by res judicata or collateral estoppel because the parties repeatedly and expressly declined to litigate issues of domestic violence or custody at the long-term domestic violence hearing, and the mother was not attempting to relitigate issues that had already been decided; neither domestic violence nor custody was actually litigated and necessarily decided in the protective order proceeding. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

Error in denying father evidentiary hearing. —

Superior court abused its discretion by denying the father an evidentiary hearing, where he made a prima facie showing that circumstances had changed in the years following orders terminating his visitation rights and restraining him from contact with his child. Carter v. Brodrick, 816 P.2d 202 (Alaska 1991).

Superior court erred in denying the husband's motion to modify custody without a hearing where at the time the order was entered, the husband did not have suitable accommodations for the children, he had since moved into and expanded a cabin to accommodate the children, and thus, he had alleged a substantial change in his living conditions sufficient to warrant a hearing under AS 25.20.110(a) . Fredrickson v. Hackett, 407 P.3d 480 (Alaska 2017).

Because a father alleged that a mother committed multiple acts of custodial interference, he should have been allowed the opportunity to prove his allegations of domestic violence at a hearing on his motion to modify custody and visitation. Daniel H. v. Amber G., — P.3d — (Alaska June 10, 2020) (memorandum decision).

Waiver of issue not raised in pleadings or at hearing. —

Although the trial court may have abused its discretion by failing to consider, before making its custody modification decision, the allegation that the father was delinquent in his child support payments, the wife waived this argument because she did not raise it either at the hearing or in a pre-trial pleading. Valentino v. Cote, 3 P.3d 337 (Alaska 2000).

A movant who demonstrates a change in circumstances is entitled to a hearing to determine whether the modified visitation would be in the child’s best interests, but trial court is not required to grant a hearing on a modification motion if it is plain that the facts alleged, even if established, would not warrant a change. Morino v. Swayman, 970 P.2d 426 (Alaska 1999).

Hearing required. —

The order modifying visitation was vacated where it contained no findings that a reduction of visitation was in the child’s best interest, and the reduction to one telephonic visit a month was ordered without giving incarcerated father an opportunity to be heard. A.H. v. P.B., 2 P.3d 627 (Alaska 2000).

Because the father's requested modification, seeking full legal and physical custody, and the trial court's order, giving the father primary custody, were both material and substantial alternations to the existing custody arrangements, due process required the trial court to hold a hearing before entering the custody modification so that the mother could have offered witnesses and other evidence and challenged the custody investigator's findings. Laura B. v. Wade B., 424 P.3d 315 (Alaska 2018).

Collateral references. —

Putative father’s right to visit illegitimate child, 15 ALR3d 887.

Right of jailed or imprisoned parent to visit from minor child, 15 ALR4th 1234.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Post adoption visitation by natural parent, 78 ALR4th 218.

Sec. 25.20.115. Attorney fee awards in custody and visitation matters.

In an action to modify, vacate, or enforce that part of an order providing for custody of a child or visitation with a child, the court may, upon request of a party, award attorney fees and costs of the action. In awarding attorney fees and costs under this section, the court shall consider the relative financial resources of the parties and whether the parties have acted in good faith.

History. (§ 3 ch 130 SLA 1990)

Notes to Decisions

Applicability. —

This section applied in a custody proceeding brought by a nonbiological parent in an attempt to modify a custody order made prior to the determination that he was not the biological father. B.J. v. J.D., 950 P.2d 113 (Alaska 1997).

Because the primary focus of the parties’ cross-motions concerned modification of child custody and visitation, the trial court correctly relied on this section as the basis for its attorney fee award to the mother. Martin v. Martin, 303 P.3d 421 (Alaska 2013).

Explicit findings required. —

In making an award of attorney’s fees and costs under this section, a court must make explicit findings as to the parties’ relative financial resources and whether the parties acted in good faith. S.L. v. J.H., 883 P.2d 984 (Alaska 1994).

Because due process requires an evidentiary hearing on contested issues before the entry of statutory sanctions against a parent for violation of a custody and visitation agreement, trial court abused its discretion in awarding sanctions without holding an evidentiary hearing after the mother pointed out disputed issues of material facts raised by the parties’ affidavits and after the mother expressly requested a hearing. Smith v. Groleske, 196 P.3d 1102 (Alaska 2008).

Upon denying a motion to modify custody, the superior court erred by failing to make explicit findings on the parties’ relative financial resources and by expanding the scope of the fee award without notice; thus, a remand was necessary. Collier v. Harris, 261 P.3d 397 (Alaska 2011).

Alaska case law has thus far required explicit findings when making an award of attorney’s fees, and these findings are ordinarily necessary when the superior court denies a motion for attorney’s fees, so that the decision can be properly reviewed; as it could not be determined in this case whether the trial court actually considered the issues the father raised on appeal, the case was remanded. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Findings supported by record. —

Superior court, which found there was no substantial change in circumstances justifying a modification of custody, did not abuse its discretion in awarding the father 50% of his actual attorney's fees; the superior court's findings were supported by the record. Collier v. Harris, 377 P.3d 15 (Alaska 2016).

Superior court did not abuse its discretion in awarding attorney's fees to the husband where the court's order considered the parties' relative financial resources and whether the parties acted in good faith. Scott v. Gaines, — P.3d — (Alaska June 14, 2017) (memorandum decision).

Evidentiary hearing required. —

Sanctions awarded under either AS 25.20.140 or this section are issues of consequence requiring an evidentiary hearing if a hearing is requested and if there are genuine factual disputes to be resolved. Smith v. Groleske, 196 P.3d 1102 (Alaska 2008).

The parties’ relative financial resources do not necessarily take primacy over the presence or absence of good faith when considering whether or not to award attorney’s fees and costs under this section. S.L. v. J.H., 883 P.2d 984 (Alaska 1994).

Effect of protective order as alteration of status quo. —

Superior court had power under this section to award attorney’s fees to a father in a protracted custody suit because, although the father did not file a motion to modify, vacate, or enforce a custody order as required by the section, the children’s mother’s request for a protective order against the father had the effect of altering the status quo so as to allow an award of fees. Rowland v. Monsen, 135 P.3d 1036 (Alaska 2006).

Waiver. —

Court did not abuse its discretion in custody case by declining to infer that mother, when she agreed to settle the issue of custody without simultaneously securing an agreement on the issue of attorney’s fees, thereby meant to waive her entitlement to fees, and award of fees was upheld. Coleman v. Coleman, 968 P.2d 570 (Alaska 1998).

Applied in

Rowen v. Rowen, 963 P.2d 249 (Alaska 1998).

Quoted in

McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Stated in

J.L.P. v. V.L.A., 30 P.3d 590 (Alaska 2001).

Cited in

Morino v. Swayman, 970 P.2d 426 (Alaska 1999); Sanders v. Barth, 12 P.3d 766 (Alaska 2000); Koller v. Reft, 71 P.3d 800 (Alaska 2003); Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015).

Collateral references. —

Right to attorney’s fees in proceeding, after absolute divorce, for modification of child custody or support order, 57 ALR4th 710.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 ALR5th 366.

Sec. 25.20.120. Closure of custody proceedings and records.

At any stage of a proceeding involving custody of a child the court may, if it is in the best interests of the child, close the proceeding to the public or order the court records closed to the public temporarily or permanently. The court may modify or vacate an order under this section at any time.

History. (§ 6 ch 88 SLA 1982)

Administrative Code. —

For privacy of client records: child protection services, see 7 AAC 54, art. 1.

Notes to Decisions

Broad gag order must be justified by compelling circumstances. —

In a child custody hearing, a gag order that goes beyond assuring confidentiality of the file and anonymity of the parties must be justified by compelling circumstances and drawn as narrowly as possible to protect against particular evils. S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985).

Sealing of records. —

The “best interests of the child” is the only limitation on the court’s power to seal records and proceedings. In re Dissolution of Marriage of Alaback, 997 P.2d 1181 (Alaska 2000).

Although the public records law provides that public records are open to inspection, because this section allows the court to close the records of child custody proceedings “if it is in the best interests of the child,” an order sealing those records was proper. In re Dissolution of Marriage of Alaback, 997 P.2d 1181 (Alaska 2000).

Sec. 25.20.130. Access to records of the child.

A parent who is not granted custody under AS 25.20.060 25.20.130 has the same access to the medical, dental, school, and other records of the child as the custodial parent.

History. (§ 6 ch 88 SLA 1982)

Sec. 25.20.140. Action for failure to permit visitation with minor child.

  1. When a court order is specific as to when a custodian of a minor child must permit another person to have visitation with that child, and the custodian fails, wilfully and without just excuse, to permit visitation with the child in substantial conformance with the court order, the person entitled to visitation has a separate cause of action against the custodian for damages.
  2. The amount of damages recoverable under this section is $200 for each failure of the custodian, wilfully and without just excuse, to permit visitation with the child for substantially the length of time and substantially in the same manner as specified in the court order.  This amount may not be increased or decreased once liability has been established. The custodian is not liable for more than one failure in respect to what is, under the court order, a single continuous period of visitation.  The prevailing party in an action commenced under this section is entitled to recover a reasonable attorney fee.
  3. As used in this section,
    1. “court order” means a decree, judgment, or order issued by a court of competent jurisdiction;
    2. “custodian” means a natural person who has been awarded custody, either temporary or permanent, of a minor child;
    3. “just excuse” includes illness of the child which makes it dangerous to the health of the child for visitation to take place in conformance with the court order; “just excuse” does not include the wish of the child not to have visitation with the person entitled to it.

History. (§ 2 ch 126 SLA 1977; am § 9 ch 94 SLA 1980)

Revisor’s notes. —

Formerly AS 09.55.238 . Renumbered as AS 25.24.300 in 1983. Renumbered again in 1991.

Cross references. —

For crime of failure to permit visitation, see AS 11.51.125 .

Notes to Decisions

Restricting contact with parent. —

Trial court did not err when it concluded that the father had a just excuse for withholding the children from the mother based on the father’s concerns that the mother might again flee with the children and that the mother would grill the children about their honesty, damaging her relationship with them. Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015).

Full attorney fee recoverable. —

The term “a reasonable attorney fee” as set out in subsection (b) means full, rather than partial, fees. L.L.M. v. P.M., 754 P.2d 262 (Alaska 1988).

Court order requirement. —

Trial court abused its discretion in awarding sanctions under this section based upon a mother’s alleged violation of the parties’ visitation agreement; sanctions are appropriate for a wilful violation of a “court order,” but the parties’ out-of-court settlement agreement that was never submitted for court approval did not qualify as a court order. Smith v. Groleske, 196 P.3d 1102 (Alaska 2008).

But only where denial of visitation unjustified. —

Trial court’s award of attorney’s fees in an action for enforcement of visitation rights was reversed and the case was remanded, where the award was based on the inappropriate “prevailing party” standard of Civil Rule 82, rather than on a determination that the father had “willfully and without just excuse” failed to permit visitation. L.L.M. v. P.M., 754 P.2d 262 (Alaska 1988).

Evidentiary hearing required. —

Sanctions awarded under either this section or AS 25.20.115 are issues of consequence requiring an evidentiary hearing if a hearing is requested and if there are genuine factual disputes to be resolved. Smith v. Groleske, 196 P.3d 1102 (Alaska 2008).

Quoted in

Carter v. Brodrick, 644 P.2d 850 (Alaska 1982).

Cited in

Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); Mendel v. Felbert, 897 P.2d 68 (Alaska 1995).

Chapter 23. Adoption.

Notes to Decisions

Intervention in child custody proceedings. —

Indian Child Welfare Act, 25 U.S.C. 1901-1963 (P.L. 95-608), does not limit a state court’s power to allow intervention in child custody proceedings. In re J.R.S., 690 P.2d 10 (Alaska 1984).

Adoption vacated where Indian tribe not allowed to intervene under Civ. R. 24(a). —

See In re J.R.S., 690 P.2d 10 (Alaska 1984).

Collateral references. —

2 Am. Jur. 2d, Adoption, § 1 et seq.

Proof: equitable adoption, 18 Am. Jur. POF2d, pp. 531-609.

2 C.J.S., Adoption of Persons, § 1 et seq.

Joan H. Hollander, Adoption law and Practice (Matthew Bender).

Modern status of law as to equitable adoption or adoption by estoppel, 97 A.L.R.3d 347.

Criminal liability of one arranging for adoption of child through other than licensed child placement agency (“Baby Broker Acts”), 3 ALR4th 468.

Validity and application of statute authorizing change in record of birthplace of adopted child, 14 ALR4th 739.

Action for wrongful adoption based on misrepresentation of child’s mental or physical condition or parentage, 56 ALR4th 375.

Adoption as precluding testamentary gift under natural relative’s will, 71 ALR4th 374.

Post adoption visitation by natural parent, 78 ALR4th 218.

Liability of public or private agency or its employees to prospective adoptive parents in contract or tort for failure to complete arrangement for adoption, 8 ALR5th 860.

Malpractice in connection with services related to adoption of a child, 18 ALR5th 892.

Sec. 25.23.005. Construction of chapter; rights of persons affected by adoption.

This chapter shall be liberally construed to the end that the best interests of adopted children are promoted. Due regard shall be given to the rights of all persons affected by a child’s adoption.

History. (§ 1 ch 29 SLA 1990)

Notes to Decisions

Terms of adoption. —

Superior court erred by setting aside an adoption decree under AS 25.23.070(a) based on a finding that there had not been a meeting of the minds due to a mistake about the biological mother’s relationship with the child after the adoption decree; the Supreme Court of Alaska held that a mere mistake about post-adoption visitation was not a ground to invalidate an adoption decree. However, the biological mother was entitled to visitation rights as contemplated by the parties; the superior court had the authority to enforce a visitation framework in the best interests of the child. In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).

Quoted in

In re K.L.J., 813 P.2d 276 (Alaska 1991).

Cited in

R.F. v. S.S., 928 P.2d 1194 (Alaska 1996); In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Sec. 25.23.010. Who may be adopted.

Any person may be adopted.

History. (§ 1 ch 84 SLA 1974)

Revisor’s notes. —

Formerly AS 20.15.010. Renumbered in 1982.

Notes to Decisions

Cited in

Darcy F. v. State, 252 P.3d 992 (Alaska 2010).

Collateral references. —

Adoption of adult, 21 A.L.R.3d 1012; 42 ALR4th 776.

Sec. 25.23.020. Who may adopt.

  1. The following persons may adopt:
    1. a husband and wife together;
    2. an unmarried adult;
    3. the unmarried father or mother of the person to be adopted;
    4. a married person without the other spouse joining as a petitioner, if the person to be adopted is not the other spouse, and if
      1. the other spouse is a parent of the person to be adopted and consents to the adoption;
      2. the petitioner and the other spouse are legally separated; or
      3. the failure of the other spouse to join in the petition or to agree to the adoption is excused by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.
  2. Nothing in this section affects legitimation under AS 25.20.050 .

History. (§ 1 ch 84 SLA 1974)

Revisor’s notes. —

Formerly AS 20.15.020. Renumbered in 1982.

Notes to Decisions

Biological parent adoption. —

Biological mother’s petition to adopt her son was denied because as the biological mother she already had a legal parent-child relationship. In addition, the child’s paternity was known, and the biological father did not consent to the termination of his parental rights. In re Adoption of Xavier K., 268 P.3d 274 (Alaska 2012), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Biological parent adoption is permissible only where the petitioning parent does not have a legal parent-child relationship with the child. In re Adoption of Xavier K., 268 P.3d 274 (Alaska 2012), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Collateral references. —

Conflict of laws as to contract to adopt, 81 ALR2d 1128.

Validity and enforcement of agreement by foster parents that they will not attempt to adopt foster child, 78 ALR3d 770.

Age of prospective adoptive parent as factor in adoption proceedings, 84 ALR3d 665.

Adoption of child by same-sex partners, 27 ALR5th 54.

Sec. 25.23.030. Venue.

  1. Proceedings for adoption shall be brought in the superior court for the district in which, at the time of filing or granting the petition, the petitioner or the person to be adopted resides or is in military service, or in which the agency having the care, custody, or control of the minor is located.
  2. If the court finds in the interest of substantial justice, under AS 22.10.040 , that the adoption proceeding should be heard in another judicial district, the court may transfer, stay, or dismiss the proceeding in whole or in part on conditions that are just.
  3. Proceedings for the termination of parental rights on the grounds set out in AS 25.23.180(c)(2) shall be brought in the superior court for the district in which the child that is the subject of the action resides.
  4. The venue for an adoption proceeding for a child in state custody under AS 47.10 is the
    1. superior court where the child-in-need-of-aid proceeding is pending as provided under AS 47.10.111 ; or
    2. judicial district in which the petitioner resides if the petitioner provides notice to all of the parties to the child-in-need-of-aid proceeding and no party objects.

History. (§ 1 ch 84 SLA 1974; am §§ 1, 2 ch 50 SLA 1987; am § 4 ch 6 4SSLA 2016; am § 1 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.030. Renumbered in 1982.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (d).

The 2018 amendment, effective September 13, 2018, in (c), substituted “AS 25.23.180(c)(2) ” for “AS 25.23.180(c)(3)”.

Editor's notes. —

Under sec. 18, ch. 6, 4SSLA 2016, subsection (d) applies "to proceedings for adoption or legal guardianship of a child in state custody under AS 47.10 filed on or after January 1, 2017."

Sec. 25.23.040. Persons required to consent to adoption.

  1. Unless consent is not required under AS 25.23.050 , a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by
    1. the mother of the minor;
    2. the father of the minor, if the father was married to the mother at the time the minor was conceived or at any time after conception, the minor is the father’s child by adoption, or the father has otherwise legitimated the minor under the laws of the state;
    3. any person lawfully entitled to custody of the minor or empowered to consent;
    4. the court having jurisdiction to determine custody of the minor, if the legal guardian or custodian of the person of the minor is not empowered to consent to the adoption;
    5. the minor, if 10 years of age or older, unless the court in the best interest of the minor dispenses with the minor’s consent; and
    6. the spouse of the minor to be adopted.
  2. A petition to adopt an adult may be granted only if written consent to adoption has been executed by the adult and the adult’s spouse or by the guardian or conservator of an incapacitated adult.

History. (§ 1 ch 84 SLA 1974; am § 40 ch 50 SLA 1989)

Revisor’s notes. —

Formerly AS 20.15.040. Renumbered in 1982.

Cross references. —

For additional requirements in the case of adoptions involving Alaska Native or Indian children, see 25 U.S.C. 1901-1963 (The Indian Child Welfare Act).

Notes to Decisions

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 20.10.020 or AS 20.15.040.

Rights of parent-child relationship are natural, fundamental. —

The correlative rights and duties inherent in the parent-child relationship are natural rights of such fundamental importance that it is generally held that parents should not be deprived of them “except for grave and weighty reasons.” Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Father’s consent required. —

Superior court properly denied the adoptive parents’ petition to adopt a child because the father’s consent was required before they could adopt the child. The Indian Child Welfare Act did not preempt the state laws, the father legitimated the child, the father’s indigence existed despite at least some efforts to find work and improve his prospects through education, the adoptive parents did not prove that he lacked justifiable cause for his failure to pay child support, and there was no final order on the visitation issue that would support an appeal. Ebert v. Bruce L., 340 P.3d 1048 (Alaska 2014).

Right of parent not absolute. —

The right of a parent with respect to his child is not an absolute, paramount, proprietary right or interest in, or to custody of the child. Hammer v. Hammer, 16 Alaska 203 (D. Alaska 1956).

The legislature did not make the right of parental consent absolute and unqualified. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Strict construction. —

Statutes relating to adoption, being in derogation of the common law, must be strictly construed. Hammer v. Hammer, 16 Alaska 203 (D. Alaska 1956).

Duty of state as “parens patria”. —

The legislature may interpose between the parent and the child such regulations as it may deem best for the welfare of either by reason of the duty of the state as “parens patria” to guard the interests of such children, the welfare of which is always the paramount consideration. Hammer v. Hammer, 16 Alaska 203 (D. Alaska 1956).

Reason for consent provisions. —

In an adoption proceeding, where an absolute severance of the parent-child relationship is sought, the consent provisions are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

No unconditional agreement to adopt. —

Because it was undisputed that the adoptive mother never unconditionally agreed that the petitioner father could adopt the child, the petitioner father’s petition for adoption was properly denied; the petitioner father understood that adopting the child was contingent on the petitioner father’s relationship with the adoptive mother improving, which did not happen. Osterkamp v. Stiles, 235 P.3d 193 (Alaska 2010).

Natural parents have no affirmative right to decide adoptive parents. —

Order terminating parents’ rights was upheld where the parents’ designation of a relative as a caregiver for the child did not remedy the risk of harm that they posed to the child. The parents had no affirmative right under this section to decide who would adopt the child. Debbie G. v. Dep't of Health & Social Servs., 132 P.3d 1168 (Alaska 2006).

Custody involves a variety of parental rights and duties, which vary according to the circumstances of the relationship of the child to the parent. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

“Custody” pertains not only to the parental control of the child, but is inseparably linked to the parent’s rights of access and companionship with his offspring. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Adoption resolution of Native American village. —

An adoption resolution of a Native American village was not entitled to comity or full faith and credit in the courts because it was obtained in violation of the natural father’s right to consent. Evans v. Native Village of Selawik IRA Council, 65 P.3d 58 (Alaska 2003).

A divorced parent who has the right to visit his children must consent to the adoption of his children. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); In re Adoption of N., 525 P.2d 520 (Alaska 1974).

When acknowledgment of paternity can be filed. —

Under the existing provisions of AS 25.20.050(a) and subsection (a) of this section, an acknowledgment of paternity can be filed at any time before the entry of a decree of adoption. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

The filing of an adoption petition does not preclude the biological father from thereafter filing a written acknowledgment of his paternity of the subject child, thereby legitimizing him. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Interpretation of the relevant statutes precludes additional consideration of the best interests of the child in determining whether a father may legitimate the adoptee during the pendency of an adoption proceeding and so foreclose adoption absent his consent. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Waiver of written consent for adoption of native child allowed. —

See Adoption of N.P.S., 868 P.2d 934 (Alaska 1994), overruled in part, Native Village of Tununak v. State, 303 P.3d 431 (Alaska 2013).

Decree held void. —

It was error for the trial court to equitably estop a mother from withholding consent to her child’s adoption by the man she had represented was the child’s father; since the mother had never represented that she would consent to that person’s adopting the child, the adoption decree was void and should have been set aside. C.T. v. J.S., 951 P.2d 1199 (Alaska 1998).

Applied in

S.M.K. v. R.G.G., 702 P.2d 620 (Alaska 1985); Native Village of Napaimute Traditional Council v. Terence W. (In re Adoption of M.W.), 79 P.3d 623 (Alaska 2003); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); Sabrina V. v. State, 442 P.3d 717 (Alaska 2019).

Quoted in

In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Stated in

S.O. v. W.S., 643 P.2d 997 (Alaska 1982).

Cited in

R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983); B.F. v. D.M. (In re A.F.M.), 15 P.3d 258 (Alaska 2001); In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003).

Collateral references. —

Sufficiency of parent’s consent to adoption of child, 24 ALR2d 1127; 15 ALR5th 1.

Mental illness and the like of parents as grounds for adoption of their children, 45 ALR2d 1379.

Consent of natural parents as essential to adoption where parents are divorced, 47 ALR2d 824.

Necessity of securing consent of parents of illegitimate child to its adoption, 51 ALR2d 497.

What constitutes “duress” in obtaining parent’s consent to adoption of child or surrender of child to adoption agency, 74 ALR3d 527.

Adoption of child in absence of statutorily required consent of public or private agency or institution, 83 A.L.R.3d 373.

One natural parent’s parental rights as affected by consent to child’s adoption by other natural parent, 37 ALR4th 724.

Necessity and sufficiency of consent to adoption by spouse of adopting parent, 38 ALR4th 768.

Validity of agreement to pay expenses attendant on birth of child on condition that natural parents consent to adoption of child, 43 ALR4th 935.

Natural parent’s indigence as precluding finding that failure to support child waived requirement of consent to adoption, 71 ALR4th 305; 82 ALR5th 443.

Natural parent’s indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 ALR5th 375.

Sec. 25.23.050. Persons as to whom consent and notice not required.

  1. Consent to adoption is not required of
    1. for purposes of this section, a parent who has abandoned a child for a period of at least six months;
    2. a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause, including but not limited to indigency,
      1. to communicate meaningfully with the child; or
      2. to provide for the care and support of the child as required by law or judicial decree;
    3. the father of a minor if the father’s consent is not required by AS 25.23.040(a)(2) ;
    4. a parent who has relinquished the right to consent under AS 25.23.180 ;
    5. a parent whose parental rights have been terminated by order of the court under AS 25.23.180(c)(2) or AS 47.10.080(c)(3) ;
    6. a parent judicially declared incompetent or mentally defective if the court dispenses with the parent’s consent;
    7. a parent of the person to be adopted, if the person is 18 or more years of age;
    8. a guardian or custodian specified in AS 25.23.040(a)(3) or (4) who has failed to respond in writing to a request for consent for a period of 60 days or who, after examination of the guardian’s or custodian’s written reasons for withholding consent, is found by the court to be withholding consent unreasonably; or
    9. the spouse of the person to be adopted, if the requirement of consent to the adoption is waived by the court by reason of prolonged unexplained absence, unavailability, incapacity, or circumstances constituting an unreasonable withholding of consent.
  2. Except as provided in AS 25.23.100 , notice of a hearing on a petition for adoption need not be given to a person whose consent is not required or to a person whose consent or relinquishment has been filed with the petition.

History. (§ 1 ch 84 SLA 1974; am § 4 ch 63 SLA 1977; am § 3 ch 50 SLA 1987; am § 1 ch 38 SLA 2008; am § 2 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.050. Renumbered in 1982.

Effect of amendments. —

The 2018 amendment, effective September 13, 2018, in (a)(5), substituted “AS 25.23.180(c)(2) ” for “AS 25.23.180(c)(3)”.

Notes to Decisions

Analysis

I.General Consideration

Annotator’s notes. —

Many of the cases cited in the notes below were decided under former AS 20.10.040 or AS 20.15.050.

Strict construction. —

The fundamental nature of parental rights requires strict construction of adoption statutes. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Statutes relating to adoption, being in derogation of the common law, must be strictly construed. Hammer v. Hammer, 16 Alaska 203 (D. Alaska 1956).

This section is modeled after a provision of the Uniform Adoption Act. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Duty of state as “parens patria.” —

See same catchline in note to AS 25.23.040 .

Consent of father required. —

Biological mother’s petition to adopt her son was denied because she already had a legal parent-child relationship. The child’s paternity was known, and the biological father did not consent to the termination of his parental rights. In re Adoption of Xavier K., 268 P.3d 274 (Alaska 2012), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Superior court properly denied the adoptive parents’ petition to adopt a child because the father’s consent was required before they could adopt the child. The Indian Child Welfare Act did not preempt the state laws, the father legitimated the child, the father’s indigence existed despite at least some efforts to find work and improve his prospects through education, the adoptive parents did not prove that he lacked justifiable cause for his failure to pay child support, and there was no final order on the visitation issue that would support an appeal. Ebert v. Bruce L., 340 P.3d 1048 (Alaska 2014).

Willfulness element essential to denial of right to consent. —

Absent the element of willfulness, a parent does not lose the right to consent to adoption under this section. The underlying agreement between the natural mother and the potential adoptive parents demonstrated neither party anticipated the natural mother would support the child given the contemplated adoption, thus negating any element of willfulness on the mother’s part, which demonstrated that her failure to support the child was not without justifiable cause. The superior court did not err in its determination that, absent the mother’s consent to the petition for adoption, the petition should be dismissed. J.F. v. C.M.H. (In re J.M.F.), 881 P.2d 1116 (Alaska 1994).

Quoted in

In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Stated in

Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Cited in

In re C.L.T., 597 P.2d 518 (Alaska 1979); S.O. v. W.S., 643 P.2d 997 (Alaska 1982); C.T. v. J.S., 951 P.2d 1199 (Alaska 1998); B.F. v. D.M. (In re A.F.M.), 15 P.3d 258 (Alaska 2001); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); Osterkamp v. Stiles, 235 P.3d 193 (Alaska 2010).

II.When Consent Not Required
A.Generally

Legislative intent as to consent. —

The legislature intended that there should not be a conclusive termination of parental rights by adoption without either parental consent or a prior forfeiture of parental rights. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Reason for consent provisions. —

Such provisions are designed to protect the natural rights of a parent to the custody, society, comfort, and services of the child. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Right of parental consent not absolute. —

The legislature did not make the right of parental consent absolute and unqualified. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Legislative judgment implicit in section. —

Implicit in this section is the legislative judgment that a parent who has manifested an inability or unwillingness to discharge the rights and duties of a parent shall be considered to have forfeited his right to obstruct an adoption. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Consent of father not dispensed with on ground of child’s best interest. —

The supreme court rejected the contention that the required consent of the child’s father may be dispensed with if it is in the best interest of the child to do so. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

The child’s best interests are not relevant to a determination of whether a natural parent’s consent can be dispensed with by the court. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Conduct causing loss of right to consent. —

Parental conduct which causes loss of a parent’s right to consent to adoption must be wilful. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Father's consent to an adoption was excused where the potential adoptive parents' testimony provided clear and convincing evidence that he had not paid child support for a period of one year, and his testimony, bank statements, and disparaging comments about the adoptive parents showed that the failure to pay was willful. Bruce L. v. Ebert, — P.3d — (Alaska July 25, 2018) (memorandum decision).

Custody involves a variety of parental rights and duties which vary according to the circumstances of the relationship of the child to the parent. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

“Custody” pertains not only to the parental control of the child, but is inseparably linked to the parent’s rights of access and companionship with his offspring. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

A divorced parent who has the right to visit his children must consent to the adoption of his children. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); In re Adoption of N., 525 P.2d 520 (Alaska 1974).

The fact that a divorce decree awards custody to one parent, and “visitation rights” to the other may in no way reflect upon the noncustodial parent’s fitness. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

But a parent who has been awarded visitation may not forever obstruct adoption, regardless of his conduct and the best interests of the child. A divorce decree may be modified. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

If it is shown that, since the entry of judgment circumstances have changed so as to require a modification of the decree in the best interests of the children, a court may terminate parental rights of visitation. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

In order for a noncustodial parent to block a stepparent adoption, he or she must have maintained meaningful contact with a child, and must have provided regular payments of child support, unless prevented from doing so by circumstances beyond the noncustodial parent’s control; circumstances resulting from the noncustodial parent’s own conduct cannot excuse such a parent’s significant failure to provide support or maintain meaningful communication. In re J.J.J., 718 P.2d 948 (Alaska 1986).

The “period of at least one year” of significant nonsupport referred to in subsection (a)(2) does not have to immediately precede the adoption petition. In re J.J.J., 718 P.2d 948 (Alaska 1986).

Burden of proof. —

The adoptive parent has the burden of proving by clear and convincing evidence that the natural parent failed significantly to communicate with or to provide support for the child. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981); R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Because only the natural parent can explain why he or she failed to communicate with or to provide support for the child, fairness requires that he or she then bear the burden of coming forward with evidence of a justifiable cause for such omissions before justification becomes an issue. Thereafter, the burden of proving by clear and convincing evidence that the natural parent’s omissions were not justified rests with the adoptive parent. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Standard as to disregarding parents’ refusal to consent to adoption. —

An adoption proceeding operates to replace a parent, while a child-in-need-of-aid proceeding operates to emancipate a child from an offending parent’s legal bonds. The different purposes of the two statutory mechanisms justify the use of different standards. A parent’s conduct, though not so dangerous as to warrant placement of the child with the state, may nonetheless justify disregarding the parents’ refusal to consent to adoption. Addison v. Danielson, 779 P.2d 1222 (Alaska 1989).

Sporadic partial payments do not preclude a finding of significant failure to provide child support. In re J.J.J., 718 P.2d 948 (Alaska 1986).

Justification. —

Evidence of subjective intent may be admitted to show what the “cause” for a parent’s course of action was, but whether the cause was justifiable must turn on the court’s determination of what grounds are objectively acceptable. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Even though the custodial parent has the right to direct the child’s activities and to make decisions regarding the care of the child that are often beyond the absent parent’s control, this does not excuse the absent parent’s obligations to provide support for and meaningful contact with his or her child. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Indigency. —

Paragraph (a)(2) of this section specifically states that indigency is a justifiable cause for failing to provide for care and support. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

The superior court erred in holding that indigency was not a legitimate justification for failure to support a child. In re K.L.J., 813 P.2d 276 (Alaska 1991).

Imprisonment. —

Neglect of parental duties caused by imprisonment is not necessarily wilful and thus does not inevitably result in the loss of a parent’s right to consent. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Imprisonment does not necessarily preclude a parent from communicating with his children but, where it does, the failure to communicate is properly considered non-wilful and thus justifiable cause. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Where the circumstances of the natural father’s incarceration and parole clearly prohibited him from communicating with his children, these circumstances acted as a justification for failure to establish meaningful communication with the children. R.N.T. v. J.R.G., 666 P.2d 1036 (Alaska 1983), overruled, In re J.J.J., 718 P.2d 948 (Alaska 1986).

Failure to communicate justified. —

Where the evidence of objective facts that justified the natural father’s failure to communicate with his daughter consisted of the testimony of the natural father and the mother that (1) he was told by friends, the mother, and the stepfather not to confuse the child by telling her that he and not her stepfather was her natural father; (2) he was told not to return to Alaska; (3) he consulted a child psychiatrist about his fear that his interference with the mother’s plans to wait to inform the child of true identity of her natural father would upset the child emotionally; (4) he remained informed about his daughter through friends in Anchorage; (5) he lived at a great distance from the child; and (6) meaningful communication with such a young child could not be accomplished by letter or telephone without the mother’s cooperation, the master’s determination that the natural father’s failure to communicate with his daughter was justified was not clearly erroneous. D.L.J. v. W.D.R., 635 P.2d 834 (Alaska 1981).

Where father absconded from Alabama with year-old son, whose whereabouts were unknown to mother (who remained in Alabama) for two years until father’s sister informed mother of child’s presence but did not offer to return child, mother’s year-long failure to communicate with child after she learned his presence in Alaska was justified, since written or telephonic communications would not have been “meaningful” under the circumstances and since mother was financially unable during that time to travel to Alaska or retain counsel therein to enforce an existing Alabama custody order. S.M.K. v. R.G.G., 702 P.2d 620 (Alaska 1985).

Superior court’s dismissal of a petition for adoption was affirmed where there was an adequate evidentiary basis for the superior court’s findings relating to the issue of the natural father’s justification for failing to communicate with his child: (1) That the natural father’s failure to communicate was justified since the child was too young (between two and three years of age) to talk on the telephone or understand gifts or letters from her father; (2) that the natural mother’s postponement of certain requested visitations and the natural father’s emotional difficulty in visiting with the new family justified his failure to communicate with the child; and (3) that the new family’s absence from Alaska for three months during the critical year period made it less reasonable for the natural father to exercise his visitation right. D.A. v. D.R.L., 727 P.2d 768 (Alaska 1986).

Failure to communicate not justified. —

Trial court did not clearly err in finding that the mother’s failure to communicate with her daughter was without justifiable cause, where she never tested her assumption that an attempt to communicate with the child would be blocked and, although she communicated regularly with the father’s grandmother, she never requested the child’s address. Addison v. Danielson, 779 P.2d 1222 (Alaska 1989).

Pursuant to subparagraph (a)(2)(A), a biological father waived his right to consent to the adoption of his daughter by her maternal grandparents because he did not meaningfully communicate with her for a one-year period; his incarceration did not justify his failure to communicate. David S. v. Jared H., 308 P.3d 862 (Alaska 2013).

Pursuant to AS 25.23.050(a)(2)(A) , a biological father waived his right to consent to the adoption of his daughter by her maternal grandparents because he did not meaningfully communicate with her for a one-year period; his incarceration did not justify his failure to communicate. David S. v. Jared H., 308 P.3d 862 (Alaska 2013).

Burden of proving lack of justifiable cause for failure to communicate not sustained. —

Adoptive parent did not prove by clear and convincing evidence that the mother lacked justifiable cause for her failure to communicate with the child, where it was apparent that the mother’s mental and emotional condition, and lack of legal sophistication, had hampered her efforts throughout the year in question to communicate with and to obtain visitation rights with the child. In re D.J.A., 793 P.2d 1033 (Alaska 1990).

Effect of parties’ remarriage on husband’s prior nonsupport. —

Parties’ three-year remarriage rendered previous periods of nonsupport irrelevent for the purpose of determining whether natural father had forfeited his right to consent. A remarriage obviously nullifies the custody and support provisions of the previous divorce decree. In re Adoption of J.B.K., 865 P.2d 737 (Alaska 1993).

Adoption resolution of Native American village. —

An adoption resolution of a Native American village was not entitled to comity or full faith and credit in the courts because it was obtained in violation of the natural father’s right to consent. Evans v. Native Village of Selawik IRA Council, 65 P.3d 58 (Alaska 2003).

Insufficient evidence to dispense with natural father’s consent under this section. —

Where biological father had filed an affidavit of paternity and had conducted himself as the father of the child, the master and the court did not err in holding that his consent was required. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Where appellant initially maintained close contact by letter and telephone for the period following the divorce and his son was brought to Alaska to visit him for the summer; appellant’s ex-wife and best friend began to live together and subsequently married; and on Easter, appellant personally brought Easter baskets, cards, and letters to his children at the home of his best friend and ex-wife and, the following week, his children spent the weekend with him; even though appellant did not visit with his children in the ensuing year, but communicated regularly with the children at Christmas and birthdays by sending presents, cards, and letters, appellant did not fail “significantly without justifiable cause . . . to communicate meaningfully” with his children. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Where, from the time of the divorce, for two years, appellant did not fail to meet his child support obligation, but that because of a period of unemployment he was able to send his ex-wife only a partial payment that she returned to him, resulting in appellant placing his support money in a savings account in trust for the children so constituted that the signatures of both him and his ex-wife would be necessary before moneys could be withdrawn; appellant did not fail “significantly without justifiable cause . . . to provide for the care and support” of his minor children as required by judicial decree. In re Adoption of M., 611 P.2d 84 (Alaska 1980).

Where evidence of the natural father’s failure to provide support for one year did not satisfy the strict requirements of subsection (a)(2), his consent to adoption was required. In re Adoption of A.F.M., 960 P.2d 602 (Alaska 1998).

Unfitness of parent. —

The fact that the mother received custody and the father visitation rights does not indicate that the father was adjudged an unfit parent or that he forfeited his parental rights. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); In re A.J.N., 525 P.2d 520 (Alaska 1974); In re K.S., 543 P.2d 1191 (Alaska 1975)(All of these cases were decided under former AS 20.10.040)

Res judicata. —

Where the superior court made a decision as to the requisite fact as required by law, which decision was made in a proceeding where petitioner was a party and had the opportunity to be heard, and where the jurisdictional question as to the fact was in issue, such decision was res judicata as to that issue and was not subject to collateral attack by petitioner in a habeas corpus proceeding. Holt v. Powell, 420 P.2d 468 (Alaska 1966).

The failure to keep a record of the adoption proceedings is a procedural matter which does not in any way relate to situations where a judgment would be void. Holt v. Powell, 420 P.2d 468 (Alaska 1966).

B.Abandonment

The test for abandonment is whether there is “conduct on the part of the parent which implies a conscious disregard of the obligations owed by a parent to the child, leading to the destruction of the parent-child relationship.” In re Adoption of N., 525 P.2d 520 (Alaska 1974).

Such test focuses on two questions — has the parent’s conduct evidenced a disregard for his parental obligations, and has that disregard led to the destruction of the parent-child relationship? In re Adoption of N., 525 P.2d 520 (Alaska 1974).

A finding of abandonment involves a two-pronged inquiry: There must first be a finding of conduct evidencing a conscious disregard of parental obligations; secondly, the court must find that such disregard has led to the destruction of the parent-child relationship. Adoption of C., 528 P.2d 788 (Alaska 1974).

The two elements of the test are interdependent; both must be established if there is to be legal abandonment. Adoption of C., 528 P.2d 788 (Alaska 1974).

Absent a sufficient finding of the requisite conduct, even a consideration of the best interests of the child and a breakdown of the parent-child relationship would be insufficient to support a finding of legal abandonment. Adoption of C., 528 P.2d 788 (Alaska 1974).

The mere fact that there is evidence of the relationship’s destruction is of no consequence if it cannot be established that there was parental conduct which caused it. Adoption of C., 528 P.2d 788 (Alaska 1974).

The best interests of the child are relevant to the latter question in the test for abandonment, because it is indicative of a breakdown of the parent-child relationship if the child’s best interests are promoted by legal severance of the relation. In re Adoption of N., 525 P.2d 520 (Alaska 1974).

But they may not always be directly relevant to the question of the parent’s disregard of his obligations. This part of the test can only be satisfied by proof that the parent’s conduct evidences a conscious disregard of his obligations. In re Adoption of N., 525 P.2d 520 (Alaska 1974); Adoption of C., 528 P.2d 788 (Alaska 1974).

Abandonment finding cannot be based solely on child’s best interests. —

The best interests of the child are a valid factor in deciding an “abandonment” allegation. However, an abandonment finding cannot be predicated solely on the best interests of the child. In re Adoption of N., 525 P.2d 520 (Alaska 1974); Adoption of C., 528 P.2d 788 (Alaska 1974).

Master’s finding. —

In a case in which a child’s father appealed a superior court’s decision that his consent was not required for the child’s adoption, the master’s finding that the father abandoned the child was amply supported by the record. In re Adoption of S.F., 340 P.3d 1045 (Alaska 2014).

Evidence relating solely to the question of what disposition may be in the child’s best interests — evidence pertinent primarily to an inquiry into the present vitality, strength and stability of the parent-child relationship — is ultimately inconsequential in the absence of proof of the requisite prior conduct. Adoption of C., 528 P.2d 788 (Alaska 1974).

Determination must be initially predicated on objective evidence. —

In deciding the question of abandonment the trial court must initially predicate its determination upon objective evidence of parental conduct indicating a conscious disregard of the parental role. Adoption of C., 528 P.2d 788 (Alaska 1974).

Failure to maintain contact with child for an extended period. —

When the grandmother was granted legal and physical custody of her granddaughter, the child’s mother failed to visit her for a period of one year, and did not telephone or write. The mother’s consent was not required for the grandmother’s adoption of the child because the mother had abandoned the child. The court properly focused on the mother’s conduct in determining that she consciously disregarded her parental role. In re Allison B., — P.3d — (Alaska Nov. 3, 2010), (memorandum opinion).

Conclusion of nonabandonment based solely upon evidence of the parent’s subjective intent not to abandon his responsibilities would be reversible error. Adoption of C., 528 P.2d 788 (Alaska 1974).

Father held not to have “abandoned” daughter and not unfit as parent. —

Where the father had consistently sought to enjoy his visitation rights only to be frustrated by obstructions placed in his way by the wife’s new husband, the father did not abandon his daughter. In re Adoption of N., 525 P.2d 520 (Alaska 1974).

Collateral references. —

Relinquishment of pa- rental claim to child-adoption proceeding, 10 Am. Jur. POF2d, pp. 635-668.

What constitutes abandonment or desertion of child by its parent or parents within purview of adoption laws, 35 ALR2d 662, 78 ALR3d 712.

Parent’s involuntary confinement, or failure to care for child as result thereof as permitting adoption without consent, 78 ALR3d 712.

Natural parent’s indigence as precluding finding that failure to support child waived requirement of consent to adoption — General principles, 82 ALR5th 443.

Natural parent’s indigence resulting from unemployment or underemployment as precluding finding that failure to support child waived requirement of consent to adoption, 83 ALR5th 375.

Natural parent’s indigence as precluding finding that failure to support child waived requirement of consent to adoption — Factors other than employment status, 84 ALR5th 191.

Sec. 25.23.060. Execution of consent; consent as power of attorney.

  1. The required consent to adoption shall be executed at any time after the birth of the child in the presence of the court or in the presence of a person authorized to take acknowledgments.  The consent is not valid unless the consent form states that the person consenting to the adoption has the right to withdraw that consent as provided in AS 25.23.070(b) , and unless the person consenting to the adoption acknowledges receipt of a copy of the consent form.  The person giving consent shall state in the consent form whether the child is a member of an Indian tribe or the biological child of a member of an Indian tribe, so that the court may determine whether the provisions of 25 U.S.C. 1901 — 1963 (Indian Child Welfare Act of 1978) apply.
  2. A consent that does not name or otherwise identify the adopting parent is valid if the consent is executed in the presence of the court or a person authorized to take acknowledgments and contains a statement by the person whose consent it is that the person consenting voluntarily executed the consent irrespective of disclosure of the name or other identification of the adopting parent.
  3. A consent executed under this section is effective as a power of attorney under AS 13.26.066 . Unless the consent form provides otherwise, and regardless of whether the form names or identifies the adoptive parent, the consent delegates to the adoptive parent all powers that may be delegated under AS 13.26.066 . The power of attorney takes effect when the child is delivered to the adoptive parent, and remains in effect as long as the consent is in effect; but the power of attorney is not effective beyond one year, unless the court extends it for good cause. The power of attorney does not terminate on the death or disability of the person executing the consent, unless the consent form so states. This subsection may not be construed to alter the requirements of AS 47.70 (the Interstate Compact on the Placement of Children).

History. (§ 1 ch 84 SLA 1974; am §§ 5, 6 ch 140 SLA 1986; am § 3 ch 28 SLA 2016)

Delayed amendment of subsection (c). —

Under sec. 1, ch. 93, SLA 2008, and sec. 4, ch. 28 SLA 2016, subsection (c) of this section will read as follows: "(c) A consent executed under this section is effective as a power of attorney under AS 13.26.066 . Unless the consent form provides otherwise, and regardless of whether the form names or identifies the adoptive parent, the consent delegates to the adoptive parent all powers that may be delegated under AS 13.26.066 . The power of attorney takes effect when the child is delivered to the adoptive parent, and remains in effect as long as the consent is in effect; but the power of attorney is not effective beyond one year, unless the court extends it for good cause. The power of attorney does not terminate on the death or disability of the person executing the consent, unless the consent form so states. This subsection may not be construed to alter the requirements of AS 47.70 (the Interstate Compact for the Placement of Children).'' Section 11(a), ch. 93, SLA 2008 makes the amendment of (c) conditional upon ratification of the Interstate Compact for the Placement of Children by at least 34 other states. If the condition occurs, the amendment of subsection (c) takes effect "on the day after the date on which the commissioner of health and social services or the commissioner's designee notifies the revisor of statutes that the contingency has occurred.'' As of October 2021, the required notice had not been given.

Revisor’s notes. —

In 2016, in subsection (c), "AS 13.26.066 " was substituted for "AS 13.26.023" in two places to reflect the renumbering of that section.

Effect of amendments. —

The 2016 amendment, effective September 20, 2016, in (c), substituted “AS 13.26.023” for “AS 13.26.020” in two places.

Notes to Decisions

Substantial compliance with consent requirements. —

When it is clear that the statutory purpose has been fulfilled, substantial compliance with the requirements governing consent to adoption is sufficient. S.O. v. W.S., 643 P.2d 997 (Alaska 1982), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Compliance with Indian Child Welfare Act required. —

Law firm was liable for malpractice, as a matter of law, for its failure to obtain the biological mother’s consent to the adoption of her child in conformity with the requirements of the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963). Doe v. Hughes, 838 P.2d 804 (Alaska 1992).

Applied in

Native Village of Napaimute Traditional Council v. Terence W. (In re Adoption of M.W.), 79 P.3d 623 (Alaska 2003).

Stated in

In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).

Cited in

Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997); In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003).

Collateral references. —

Relinquishment of parental claim to child-adoption proceeding, 10 Am. Jur. POF2d, pp. 635-668.

Consent of divorced parents as essential to adoption, 91 ALR 1387, 47 ALR2d 824.

What constitutes “duress” in obtaining parent’s consent to adoption of child or surrender of child to adoption agency, 74 ALR3d 527.

Validity of birth parent’s “blanket” consent to adoption which fails to identify adoptive parents, 15 ALR5th 1.

Sec. 25.23.060. Execution of consent; consent as power of attorney.

  1. The required consent to adoption shall be executed at any time after the birth of the child in the presence of the court or in the presence of a person authorized to take acknowledgments.  The consent is not valid unless the consent form states that the person consenting to the adoption has the right to withdraw that consent as provided in AS 25.23.070(b) , and unless the person consenting to the adoption acknowledges receipt of a copy of the consent form.  The person giving consent shall state in the consent form whether the child is a member of an Indian tribe or the biological child of a member of an Indian tribe, so that the court may determine whether the provisions of 25 U.S.C. 1901 — 1963 (Indian Child Welfare Act of 1978) apply.
  2. A consent that does not name or otherwise identify the adopting parent is valid if the consent is executed in the presence of the court or a person authorized to take acknowledgments and contains a statement by the person whose consent it is that the person consenting voluntarily executed the consent irrespective of disclosure of the name or other identification of the adopting parent.
  3. A consent executed under this section is effective as a power of attorney under AS 13.26.066 . Unless the consent form provides otherwise, and regardless of whether the form names or identifies the adoptive parent, the consent delegates to the adoptive parent all powers that may be delegated under AS 13.26.066 . The power of attorney takes effect when the child is delivered to the adoptive parent, and remains in effect as long as the consent is in effect; but the power of attorney is not effective beyond one year, unless the court extends it for good cause. The power of attorney does not terminate on the death or disability of the person executing the consent, unless the consent form so states. This subsection may not be construed to alter the requirements of AS 47.70 (the Interstate Compact for the Placement of Children).

History. (§ 1 ch 84 SLA 1974; am §§ 5, 6 ch 140 SLA 1986; am § 3 ch 28 SLA 2016; am § 4 ch 28 SLA 2016)

Sec. 25.23.070. Withdrawal of consent.

  1. A consent to adoption may not be withdrawn after the entry of a decree of adoption.
  2. A consent to adoption may be withdrawn before the entry of a decree of adoption, within 10 days after the consent is given, by delivering written notice to the person obtaining the consent, or after the 10-day period, if the court finds, after notice and opportunity to be heard is afforded to petitioner, the person seeking the withdrawal, and the agency placing the child for adoption, that the withdrawal is in the best interest of the person to be adopted and the court orders the withdrawal.

History. (§ 1 ch 84 SLA 1974; am § 7 ch 140 SLA 1986)

Revisor’s notes. —

Formerly AS 20.15.070. Renumbered in 1982.

Notes to Decisions

Determining what is in child’s best interest. —

When a natural parent consents to his or her child’s adoption and later seeks to withdraw such consent, no parental preference is to be applied in determining what is in the child’s best interest. S.O. v. W.S., 643 P.2d 997 (Alaska 1982), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Under the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, the test of best interests of the child is serious emotional or physical harm to the child, while the analysis required by state law when a parent who has consented to an adoption seeks to regain custody of his or her child upon termination of the adoptive relationship, addresses only the best interests of the child. A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982), cert. denied, 461 U.S. 914, 103 S. Ct. 1893, 77 L. Ed. 2d 283 (U.S. 1983).

Notice of right to withdraw consent not required. —

Subsection (b) of this section is not unconstitutional in its failure to require notice of the statutory right to withdraw consent within 10 days because a valid consent may be given without the person whose consent is requested first being advised of his or her statutory or constitutional right to refuse. B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980).

The inclusion of a statement of right to withdraw requirement of former AS 20.15.180(b)(1) (now AS 25.23.180(b)(1) ) is not applicable to a consent to adoption. B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980).

Withdrawal of consent denied. —

Superior court properly determined that withdrawal of the father's consent to adoption by his sister, the children's aunt, would not be in the children's best interests and denied the father permission to withdraw his consent because the father wanted custody as it was in his best interests, rather than the children's; the children's psychological welfare, schoolwork, and behavior had improved since living with their aunt; the children were bonded with their aunt and had built a good relationship with her; and the father's claims of having addressed his personal and parenting problems were undermined by his previous failure to maintain such behavior after having his children returned to him. Dean S. v. State, 420 P.3d 1175 (Alaska 2018).

Hearing. —

The statute clearly calls for a hearing on the best interest of the child if written notice of withdrawal is filed at any time prior to entry of the decree of adoption. B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980).

The natural mother is entitled to a hearing to determine whether withdrawal of her consent is in the best interest of the child. B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980).

Once a notice of withdrawal was filed, the court’s failure to afford the natural mother a hearing was error. B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980).

Mistake regarding post-adoption visitation. —

Superior court erred by setting aside an adoption decree under subsection (a) based on a finding that there had not been a meeting of the minds due to a mistake about the biological mother’s relationship with the child after the adoption decree; a mere mistake about post-adoption visitation was not grounds to invalidate an adoption decree. In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).

Quoted in

In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989).

Cited in

Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Collateral references. —

Annulment or vacation of adoption decree by adopting parent or natural parent consenting to adoption, 2 ALR2d 887.

Right of natural parent to withdraw valid consent to adoption of child, 74 ALR3d 421.

Mistake or want of understanding as ground for revocation of consent to adoption or of agreement releasing infant to adoption placement agency, 74 ALR3d 489.

Sec. 25.23.080. Petition for adoption.

  1. The caption of a petition for adoption shall be styled substantially “In the Matter of the Adoption of . . . . . . . . . . . . . . . .”.  The person to be adopted shall be designated in the caption under the name by which the person is to be known if the petition is granted. If the child is placed for adoption by an agency, any name by which the child was previously known may not be disclosed in the petition or in the decree of adoption.
  2. A petition for adoption shall be signed and verified by the petitioner, filed with the clerk of the court, and state
    1. the date and place of birth of the person to be adopted, if known;
    2. the name to be used for the person to be adopted;
    3. the date of placement of the minor and the name of the person placing the minor;
    4. the full name, age, place, and duration of residence of the petitioner;
    5. the marital status of the petitioner, including the date and place of marriage, if married;
    6. that the petitioner has facilities and resources, including those available under a hard-to-place child subsidy agreement, suitable to provide for the nurture and care of the minor to be adopted, and that it is the desire of the petitioner to establish the relationship of parent and child with the person to be adopted;
    7. a description and estimate of value of any property of the person to be adopted; and
    8. the name of any person whose consent to the adoption is required, but who has not consented, and facts or circumstances that excuse the lack of the consent normally required to the adoption.
  3. A certified copy of the birth certificate or verification of the birth record of the person to be adopted, if available, the information specified in AS 25.23.185(a) , if available, and the required consents, relinquishments, and termination orders shall be filed with the clerk.
  4. A petitioner petitioning to adopt a child in state custody under AS 47.10 shall file the petition for adoption in either the court where the child-in-need-of-aid proceedings are pending or the judicial district in which the petitioner resides, as required under AS 25.23.030(d) and AS 47.10.111 .

History. (§ 1 ch 84 SLA 1974; am § 1 ch 36 SLA 1977; am § 8 ch 140 SLA 1986; am § 5 ch 6 4SSLA 2016)

Revisor’s notes. —

Formerly AS 20.15.080. Renumbered in 1982.

Cross references. —

For additional requirements in the case of adoptions involving Alaska Native or Indian children, see 25 U.S.C. 1901-1963 (The Indian Child Welfare Act).

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, added (d).

Editor's notes. —

Under sec. 18, ch. 6, 4SSLA 2016, subsection (d) applies "to proceedings for adoption or legal guardianship of a child in state custody under AS 47.10 filed on or after January 1, 2017."

Notes to Decisions

Separate determination as to status of consents prior to decree. —

The adoption statutory scheme clearly contemplates a separate determination by the court as to the status of required or excused consents prior to the granting of the decree of adoption. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Cited in

In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003).

Collateral references. —

Mental illness and the like of parents as ground for adoption of their children, 45 ALR2d 1379.

Change of child’s name in adoption proceeding, 53 ALR2d 927.

Requirements as to residence or domicil of adoptee or adoptive parent for purposes of adoption, 33 ALR3d 176.

Religion as factor in adoption proceedings, 48 ALR3d 383.

Marital status of prospective adopting parents as factor in adoption proceedings, 2 ALR4th 555.

Sec. 25.23.090. Report of petitioner’s expenditures.

  1. Except as specified in (b) of this section, the petitioner in any proceeding for the adoption of a minor shall file, before the petition is heard, a full accounting report in a manner acceptable to the court of all disbursements of anything of value made or agreed to be made by or on behalf of the petitioner in connection with the adoption.  The report must show any expenses incurred in connection with
    1. the birth of the minor;
    2. placement of the minor with petitioner;
    3. medical or hospital care received by the mother or by the minor during the mother’s prenatal care and confinement; and
    4. services relating to the adoption or to the placement of the minor for adoption that were received by or on behalf of the petitioner, either natural parent of the minor, or any other person.
  2. This section does not apply to an adoption by a stepparent whose spouse is a natural or adoptive parent of the child.
  3. A report made under this section shall be signed and verified by the petitioner.

History. (§ 1 ch 84 SLA 1974)

Revisor’s notes. —

Formerly AS 20.15.090. Renumbered in 1982.

Notes to Decisions

Cited in

In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003).

Sec. 25.23.100. Notice of petition, investigation, and hearing.

  1. After the filing of a petition to adopt a minor, the court shall fix a time and place for hearing the petition unless the petition is held in abeyance under AS 47.10.111 . At least 20 days before the date of hearing, the petitioner shall give notice of the filing of the petition and of the time and place of hearing to (1) the department, unless the adoption is by a stepparent of the child; (2) any agency or person whose consent to the adoption is required by this chapter, but who has not consented; and (3) a person whose consent is dispensed with upon any ground mentioned in AS 25.23.050(a)(1) — (3), (6), (8), and (9), but who has not consented. The notice to the department shall be accompanied by a copy of the petition.
  2. Notice to persons specified in AS 25.23.050 must include a statement of the grounds under which consent to the adoption is not required.  Notice given under this section shall be adequate to give actual notice of the proceedings, taking into account education and language differences that are known or reasonably ascertainable by the petitioner or the department. The notice of hearing must contain all names by which the minor has been identified and must state in summary form the effect of a decree of adoption.  Notice shall be given in the manner appropriate under rules of civil procedure for the service of process in a civil action in this state or in any manner the court by order directs.  Notice by publication may not be given unless, for compelling reasons, the court orders it to be given under the procedure established in Rule 4 of the Alaska Rules of Civil Procedure. Proof of the giving of the notice shall be filed with the court before the petition is heard, subject to the time limitations in (e) of this section.
  3. A reasonable investigation shall be made by the department or the petitioner to assure that all persons listed in (a) of this section are located and given notice of the proposed adoption.  The investigation shall be conducted so that the rights of all parties are protected, including but not limited to the right to privacy and the right to be notified. An affidavit describing the investigation shall be filed with the court if all persons listed in (a) of this section are not located.
  4. Except as provided in (g) and (i) of this section, an investigation shall be made by the department or any other qualified agency or person designated by the court to inquire into the conditions and antecedents of a minor sought to be adopted and of the petitioner for the purpose of ascertaining whether the adoptive home is a suitable home for the minor and whether the proposed adoption is in the best interest of the minor.
  5. A written report of the investigation shall be filed with the court by the investigator before the petition is heard so long as the report is filed within 30 days of the designation by the court of the department, agency, or person to make the investigation.
  6. The report of the investigation must contain an evaluation of the placement with a recommendation as to the granting of the petition for adoption and any other information the court requires regarding the petitioner or the minor.
  7. Unless directed by the court, an investigation and report is not required in cases in which an agency is a party or joins in the petition for adoption, a stepparent is the petitioner, the person to be adopted is within the fourth degree of lineal or collateral consanguinity to the petitioner, or the person to be adopted is an adult.  In other cases, the court may waive the investigation only if it appears that waiver is in the best interest of the minor and that the adoptive home and the minor are suited to each other. The department which is required to consent to the adoption may give consent without making the investigation.
  8. The department or the agency or persons designated by the court to make the required investigation may request other departments or agencies within or outside of this state to make investigations of designated portions of the inquiry as may be appropriate and to make a written report as a supplemental report to the court and shall make similar investigations and reports on behalf of other agencies or persons designated by the courts of this state or another state.
  9. After the filing of a petition to adopt an adult the court by order shall direct that a copy of the petition and a notice of the time and place of the hearing be given to any person whose consent to the adoption is required, but who has not consented.  The court may order an appropriate investigation to assist it in determining whether the adoption is in the best interest of the persons involved.
  10. [Repealed, § 22 ch 140 SLA 1986.]

History. (§ 1 ch 84 SLA 1974; am § 4 ch 167 SLA 1975; am § 1 ch 150 SLA 1976; am §§ 9, 10, 22 ch 140 SLA 1986; am § 2 ch 38 SLA 2008; am § 6 ch 6 4SSLA 2016)

Revisor's notes. —

Formerly AS 20.15.100. Renumbered in 1982.

Administrative Code. —

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, in (a), added “unless the petition is held in abeyance under AS 47.10.111 ” at the end of the first sentence.

Editor's notes. —

Under sec. 18, ch. 6, 4SSLA 2016, the 2016 amendment to subsection (a) applies "to proceedings for adoption or legal guardianship of a child in state custody under AS 47.10 filed on or after January 1, 2017."

Notes to Decisions

Adoption resolution of Native American village. —

An adoption resolution of a Native American village was not entitled to comity or full faith and credit in the courts because it was obtained in violation of the natural father’s right to notice. Evans v. Native Village of Selawik IRA Council, 65 P.3d 58 (Alaska 2003).

Separate determination as to status of consents prior to decree. —

The adoption statutory scheme clearly contemplates a separate determination by the court as to the status of required or excused consents prior to the granting of the decree of adoption. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Applied in

In re Adoption of W, 565 P.2d 842 (Alaska 1977).

Quoted in

B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980); A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982).

Cited in

S.O. v. W.S., 643 P.2d 997 (Alaska 1982); In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003); Ebert v. Bruce L., 340 P.3d 1048 (Alaska 2014).

Sec. 25.23.110. Required residence of minor.

A final decree of adoption may not be issued until the minor to be adopted, other than a stepchild of the petitioner, has lived in the adoptive home and the department or any other qualified agency or person designated by the court has had an opportunity to observe or investigate the adoptive home. This observation or investigation is not required in proceedings where an investigation is not required under AS 25.23.100(g) and (i).

History. (§ 1 ch 84 SLA 1974)

Revisor’s notes. —

Formerly AS 20.15.110. Renumbered in 1982.

Collateral references. —

Requirements as to residence or domicil of adoptee or adoptive parent for purposes of adoption, 33 ALR3d 176.

Sec. 25.23.120. Hearing.

  1. The presence of the petitioner and the person to be adopted is not required at the hearing on the petition unless ordered by the court.
  2. The court may continue the hearing from time to time to permit further observation, investigation, or consideration of any facts or circumstances affecting the granting of the petition.
  3. If at the conclusion of the hearing the court determines that the required consents have been obtained or excused and that the adoption is in the best interest of the person to be adopted, it may issue a final decree of adoption.
  4. If the requirements for a decree under (c) of this section have not been met, the court shall dismiss the petition and determine, in the best interests of the minor, the person including the petitioner to have custody of the minor.

History. (§ 1 ch 84 SLA 1974)

Revisor’s notes. —

Formerly AS 20.15.120. Renumbered in 1982.

Notes to Decisions

Annotator’s notes. —

Hickey v. Bell, 391 P.2d 447 (Alaska 1964) (Decided under former AS 20.10.100)

Subsection (a) allows for court discretion. —

While subsection (a) is worded presumptively in favor of the absence of the parties, it allows for discretion on the part of the court. In re Adoption of W, 565 P.2d 842 (Alaska 1977).

Statutory discretion of court circumscribed in situations covered by Civ. R. 32(a)(3)(B), relating to use of depositions at trial. —

Where indigent couples each lived more than 100 miles from the nearest court, the trial court erred in denying their petitions to proceed by deposition. In re Adoption of W, 565 P.2d 842 (Alaska 1977).

Effect of master’s recommendations. —

The superior court is free to follow the recommendations of the master and grant the petition for adoption or to reject it as it sees fit. Hickey v. Bell, 391 P.2d 447 (Alaska 1964) (Decided under former AS 20.10.100).

This section does not require that the superior court judge grant the petition for adoption if the requirements of the section are found to have been satisfied by the master who conducted the hearing. Hickey v. Bell, 391 P.2d 447 (Alaska 1964) (Decided under former AS.20.10.100)

Requirements of subsection (c) to be met. —

Subsection (c) of this section requires the superior court to determine that the required consents have been obtained or excused and that the adoption is in the best interests of the child. Both of the conditions must be met. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Best interests of the child. —

In an adoption case, the relevant factors are the consent of the parents and the best interests of the child. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Biological mother’s petition to adopt her son was properly denied. It was not in the child’s best interests to grant the adoption petition, in part because terminating the non-consenting father’s parental rights without replacing him with a legally obligated adult contravened the purpose of adoption. In re Adoption of Xavier K., 268 P.3d 274 (Alaska 2012), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Trial court's determination that adoption was against the child's best interest was supported by a finding that the child's emotional, mental, and social needs would be best served by developing a relationship with the father, who was capable of meeting and willing to meeting those needs, and by the counselor's belief that it was in the child's best interest for her to work through her issues with the father. In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Denial allowed. —

Denial of the stepfather's adoption petition could be based on either prong - lack of required consent or the best interests of the child. In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Psychological effects of separation. —

Superior court did not err when it granted custody of a child to her caregivers rather than allowing her grandparents to adopt her, where the issue was not merely primary caregiving but whether removing the child from the primary custody of the people with whom she had spent 21 of her 24 months would be unnecessarily traumatic for her, especially since she had already lost one set of parents; the superior court carefully questioned in voir dire each expert who testified on child psychology about the possible effects on the child of being separated from the caregivers and overruled objections to such questions when asked. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

No blood-relative preference. —

Trial court did not err when it dismissed paternal grandparents’ adoption petition and granted primary custody of an orphaned child to her day care providers who were also friends of the child’s murdered mother, because there was not a blood-relative preference in adoption cases in Alaska. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003)(See now AS 25.23.127 .).

Kinship circle taken seriously. —

Superior court took the kinship circle argument seriously, and cited its importance in granting custody of an orphan to the child’s daycare providers instead of granting adoption to the child’s paternal grandparents, where the evidence showed that the grandparents knew little about the child’s murdered mother’s family whereas the daycare provider had grown up with the mother as children, still kept in contact with her family, and had been close to the mother’s parents when they were alive. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Foster care. —

Foster care arrangements are created by the Department of Family and Youth services pursuant to AS 47.14.100 , not by judges in adoption cases pursuant to AS 25.23.120(d) . Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Consent of father not dispensed with on ground of child’s best interest. —

The supreme court rejected the contention that the required consent of the child’s father may be dispensed with if it is in the best interest of the child to do so. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Separate determination as to status of consents prior to decree. —

The adoption statutory scheme clearly contemplates a separate determination by the court as to the status of required or excused consents prior to the granting of the decree of adoption. In re Adoption of H., 597 P.2d 513 (Alaska 1979).

Parents entitled to preference over grandparents. —

Between parents and grandparents adversely claiming custody of a child, either parent is entitled to a preference over the grandparents unless it is clearly shown that a parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents. Hickey v. Bell, 391 P.2d 447 (Alaska 1964).

Cited in

Addison v. Danielson, 779 P.2d 1222 (Alaska 1989); In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); State v. Zander B., 474 P.3d 1153 (Alaska 2020).

Collateral references. —

Applicability of res judicata to decrees or judgment in adoption proceedings, 52 ALR2d 406.

Race as factor in adoption proceedings, 54 ALR2d 909.

Award of custody of child where contest is between child’s mother and grandparent, 29 ALR3d 366.

Award of custody of child where contest is between child’s grandparent and one other than child’s parent, 30 ALR3d 290.

Religion as factor in adoption proceedings, 48 ALR3d 383.

Age of prospective adoptive parent as factor in adoption proceedings, 84 ALR3d 665.

Grandparents’ visitation rights, 90 ALR3d 222.

Admissibility of social worker’s expert testimony on custody issue, 1 ALR4th 837.

Visitation rights of persons other than natural parents or grandparents, 1 ALR4th 1270.

Marital status of prospective adopting parents as factor in adoption proceedings, 2 ALR4th 555.

Race as factor in adoption proceedings, 34 ALR4th 167.

Post adoption visitation by natural parent, 78 ALR4th 218.

Sec. 25.23.125. Preference of minor to be adopted; guardian ad litem; protective orders.

  1. If the person to be adopted is a minor under the age of 10 and the person is of sufficient age and intelligence to state desires concerning the adoption, the court shall consider the person’s desires.
  2. The court may appoint a guardian ad litem or attorney, or both, under AS 25.24.310 for a minor who is to be adopted or for a minor whose parent is the subject of a petition to terminate parental rights under AS 25.23.180(c) .
  3. The court may issue a protective order or other order that is in the best interest of a minor who is to be adopted.

History. (§ 11 ch 140 SLA 1986; am § 3 ch 24 SLA 2018)

Cross references. —

For requirement that minor 10 years of age or older consent to adoption, see AS 25.23.040(a)(5) .

Effect of amendments. —

The 2018 amendment, effective September 13, 2018, in (b), added “or for a minor whose parent is the subject of a petition to terminate parental rights under AS 25.23.180(c) ” at the end.

Sec. 25.23.127. Adult family member preference to adopt.

Taking into consideration a child’s stated preference under AS 25.23.125(a) and consent given under AS 25.23.040(a)(5) , and unless the court finds that a petition to adopt the child by an adult family member is contrary to the best interest of the child, the court shall grant a petition to adopt a child by an adult family member who has had physical custody of the child for at least 12 consecutive months before the parental rights to the child have been terminated. In this section, “adult family member” has the meaning given in AS 47.10.990 .

History. (§ 3 ch 64 SLA 2005)

Notes to Decisions

Quoted in

Native Village of Tununak v. State, 303 P.3d 431 (Alaska 2013).

Sec. 25.23.130. Effect of adoption decree; effect of termination of parental rights.

  1. A final decree of adoption, whether issued by a court of this state or of any other state, has the following effect as to matters within the jurisdiction or before a court of this state:
    1. except with respect to a spouse of the petitioner and relatives of the spouse, to relieve the natural parents of the adopted person of all parental rights and responsibilities, and, except as provided in (c) of this section, to terminate all legal relationships between the adopted person and the natural parents and other relatives of the adopted person, so that the adopted person thereafter is a stranger to the former relatives for all purposes including inheritance, unless the decree of adoption specifically provides for continuation of inheritance rights, and the interpretation or construction of documents, statutes, and instruments, whether executed before or after the adoption is decreed, that do not expressly include the person by name or by some designation not based on a parent and child or blood relationship; and
    2. to create the relationship of parent and child between petitioner and the adopted person, as if the adopted person were a legitimate blood descendant of the petitioner, for all purposes including inheritance and applicability of statutes, documents, and instruments, whether executed before or after the adoption is decreed, that do not expressly exclude an adopted person from their operation or effect.
  2. Notwithstanding the provisions of (a) of this section, if a parent of a child dies without the relationship of parent and child having been previously terminated and a spouse of the living parent thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption.
  3. Nothing in this chapter prohibits an adoption that allows visitation between the adopted person and that person’s natural parents or other relatives.
  4. Except as provided in (e) and (f) of this section, a decree terminating parental rights on the grounds set out in AS 25.23.180(c)(2) voids all legal relationships between the child and the biological parent so that the child is a stranger to the biological parent and to relatives of the biological parent for all purposes, including interpretation of documents executed before or after the termination of parental rights that do not include the child by name or by a description not based on a parental or blood relationship.
  5. Inheritance rights between a child and a biological parent are not voided by a decree terminating parental rights on the grounds set out in AS 25.23.180(c)(2) unless the decree specifically provides for the termination of inheritance rights.
  6. A decree ordering termination of parental rights between a biological parent and a child on the grounds specified in AS 25.23.180(c)(2) does not relieve the biological parent of an obligation to pay child support unless the decree specifically provides for the termination of the obligation to pay child support. A child support obligation under this subsection does not entitle the obligor to contact or otherwise maintain a relationship with the child.

History. (§ 1 ch 84 SLA 1974; am §§ 12, 13 ch 140 SLA 1986; am § 4 ch 50 SLA 1987; am §§ 4 — 6 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.130. Renumbered in 1982.

Cross references. —

For grandparent visitation rights, see AS 25.20.065 .

For the effect of subsection (f) on Rule 90.3, Alaska Rules of Civil Procedure, see sec. 19(a), ch. 24, SLA 2018, in the 2018 Temporary and Special Acts.

Effect of amendments. —

The 2018 amendment, effective September 13, 2018, in (d), “and (f)” was inserted following “in (e)”; in (d) and (e), substituted “AS 25.23.180(c)(2) ” for “AS 25.23.180(c)(3)”; added (f).

Notes to Decisions

Annotator’s notes. —

Rasco v. Moran, 475 P.2d 696 (Alaska 1970), and Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973), cited in the notes below, were decided under former AS 20.10.120.

Subsection (a) is constitutional. In re W.E.G., 710 P.2d 410 (Alaska 1985).

The effect of an adoption is to permanently terminate the legal relationship of parent and child, except when the natural parent is the spouse of the adopting parent. Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973).

Biological parent adoption denied. —

Biological mother’s petition to adopt her son was denied under AS 25.23.020(a) , because she already had a legal parent-child relationship. The child’s paternity was known, and the biological father did not consent to the termination of his parental rights. In re Adoption of Xavier K., 268 P.3d 274 (Alaska 2012), overruled in part, Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Child support. —

Father’s consent to adoption did not relieve him of his responsibility to support his child, and his duty of support encompassed a duty to reimburse the state for support of the child. Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Adopter’s parents as grandparents. —

The adopter’s parents are as much the adopted child’s grandparents as the child’s natural grandparents by virtue of this section, the adoption statute. Rasco v. Moran, 475 P.2d 696 (Alaska 1970).

Post-adoption visitation. —

Subsection (c) does not give the natural parent a right to post-adoption visitation. In re Adoption of A.F.M., 960 P.2d 602 (Alaska 1998).

Because superior courts are afforded discretion to fashion open adoption decrees, a natural parent is entitled to request the inclusion of visitation rights in a future decree; Alaska’s general prohibition on conditional relinquishments forbids, however, the conditioning of a voluntary relinquishment of parental rights on the eventual inclusion of such visitation rights. Alden H. v. Office of Children's Servs., 108 P.3d 224 (Alaska 2005).

Superior court erred by setting aside an adoption decree under AS 25.23.070(a) based on a finding that there had not been a meeting of the minds due to a mistake about the biological mother’s relationship with the child after the adoption decree; a mere mistake about post-adoption visitation was not a ground to invalidate an adoption decree. However, the biological mother was entitled to visitation rights as contemplated by the parties; this section does not preclude an ongoing relationship between a biological parent and a child given up for adoption. In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).

Grandparent visitation following adoption. —

Failure to grant the grandparents formal visitation rights under AS 25.23.130 was not an abuse of discretion where the court left grandparent visitation to the child’s discretion, finding that the child had facilitated such visitations in the past and would continue to do so in the future, and if the child did not follow through with these intentions, the grandparents could then petition the court for visitation rights due to a “change in circumstances” in accordance with AS 25.20.065(b)(2) . C.L. v. P.C.S. (In re S.K.A.), 17 P.3d 769 (Alaska 2001).

Granting post-adoption visitation to blood relatives precluded. —

Clear language of this section precludes granting post-adoption visitation to any blood relative, regardless of that relative’s bond with the adopted child. In re W.E.G., 710 P.2d 410 (Alaska 1985).

Guardian ad litem. —

In an adoption case, the court erred in failing to make findings on the record explaining the court’s decision not to appoint a guardian ad litem. Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).

Non-biological fathers. —

It was not an abuse of discretion to award an adoptive father legal custody of a child even though he was not the child’s biological father. Faulkner v. Goldfuss, 46 P.3d 993 (Alaska 2002).

Psychological parent. —

When the parties bought a home together and became foster parents of a one-week-old child, the father allowed the mother alone to adopt the child when he was sixteen months old; in the child custody dispute that arose when the mother left, the father was not allowed to use his time as a foster parent to prove that he was a psychological parent, because the final adoption decree had the effect of making the adopted child a stranger to the former relatives under this section. Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010).

Decree of adoption vacated. —

Superior court erred in excluding natural grandparents from participating in the hearing concerning adoption of their grandchildren by their foster parents. In re W.E.G., 710 P.2d 410 (Alaska 1985).

Superior court did not err in vacating adoption by foster parents because the court found that they misrepresented their intent to abide by the visitation provisions in a formal settlement agreement with the maternal grandparents which was incorporated into the adoption decree, under which agreement the grandparents waived their right to pursue adoption in exchange for specific guarantees and assurance that the foster parents would comply with the visitation agreement and facilitate a relationship between the children and the grandparents. In re Adoption of E.H., 431 P.3d 1190 (Alaska 2018).

Applied in

Rita T. v. State, 623 P.2d 344 (Alaska 1981); Hernandez v. Lambert, 951 P.2d 436 (Alaska 1998).

Quoted in

In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Stated in

C.W. v. Dep't of Health & Soc. Servs., 23 P.3d 52 (Alaska 2001).

Cited in

Addison v. Danielson, 779 P.2d 1222 (Alaska 1989); Gilbert M. v. State, 139 P.3d 581 (Alaska 2006); State v. Zander B., 474 P.3d 1153 (Alaska 2020).

Collateral references. —

Inheritance from or through adoptive parent, 18 ALR2d 960.

Adoption of child as revoking a will, 24 ALR2d 1085.

Adoption as affecting right of inheritance through or from natural parent or other natural kin, 37 ALR2d 333.

Right of adopted child to inherit from kindred of adoptive parent, 43 ALR2d 1183.

Children of adopted child, or adopted children of natural child, as “lineal descendants” within provisions of inheritance, succession, or estate tax statutes respecting exemption and tax rates, 51 ALR2d 853.

Res judicata as applicable to decrees or judgments in adoption proceedings, 52 ALR2d 406.

Inheritance from or through adopted person, 52 ALR2d 1228.

Child adopted by another as beneficiary of action or settlement for wrongful death of natural parent, 67 ALR2d 745.

Law governing effect, with respect to inheritance, of foreign contract to adopt, 80 ALR2d 1128.

Adopted child as within class in testamentary gift, 86 A.L.R.2d 12.

Conflict of laws as to adoption, as affecting descent and distribution of decedent’s estate, 87 ALR2d 1240.

Who, other than natural or adopting parents, or heirs of latter, may collaterally attack adoption decree, 92 ALR2d 813.

Right of children of adopted child to inherit from adopting parent, 94 ALR2d 1200.

Action for death of adoptive parent, by or for benefit of adopted or equitably adopted child, 94 ALR2d 1237, 97 A.L.R.3d 347.

Statutory revocation of will by subsequent birth or adoption of child, 97 ALR2d 1044.

Right of adopted child to inherit from intestate natural grandparent, 60 ALR3d 631.

Adoption as precluding testamentary gift under natural relative’s will, 71 ALR4th 374.

Adopted child as within class named in deed or inter vivos trust instrument, 37 ALR5th 237.

Construction and application of §§ 202(d)(8)(D) and 202(d)(9)(B) of Social Security Act (42 USC § 402(d)(8)(D) and 402(d)(9)(B)) respecting award of child benefits to child legally adopted by individual within 24 months after individual has become entitled to disability or old age insurance benefits, 10 ALR Fed. 903.

Denial of social security benefits to adopted children who are neither natural children nor stepchildren of eligible individual and who do not meet dependency requirements, under § 202(d)(8) of the Social Security Act, as amended (42 USC § 402(d)(8)), 57 ALR Fed. 942.

Sec. 25.23.140. Appeal and validation of adoption decree.

  1. An appeal from any final order or decree rendered under this chapter may be taken in the manner and time provided for appeal from a judgment in a civil action.
  2. Subject to the disposition of an appeal, upon the expiration of one year after an adoption decree is issued, the decree may not be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter, unless, in the case of the adoption of a minor the petitioner has not taken custody of the minor, or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period.
  3. Subject to the disposition of an appeal, one year after a decree is issued terminating parental rights on grounds set out in AS 25.23.180(c)(2) , the order may not be challenged on any ground, including fraud, misrepresentation, failure to give notice, or lack of jurisdiction of the parties or of the subject matter.

History. (§ 1 ch 84 SLA 1974; am § 5 ch 50 SLA 1987; am § 7 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.140. Renumbered in 1982.

Effect of amendments. —

The 2018 amendment, effective September 13, 2018, in (c), substituted “AS 25.23.180(c)(2) ” for “AS 25.23.180(c)(3)”.

Notes to Decisions

Applicability to Tribal order of adoption. —

A tribal order of adoption, even though invalid, was legally cognizable as “an adoption decree” within the meaning of this section upon the state’s issuance of a birth certificate ratifying the order as an adoption by tribal custom. Hernandez v. Lambert, 951 P.2d 436 (Alaska 1998).

Applicability to Indian Child Welfare Act. —

California resident’s petition to vacate an Alaska adoption decree, alleging violation of the federal Indian Child Welfare Act, was barred by the one-year limitation of this section, and was not governed by California’s three-year limitation, where the decree was issued by an Alaska court, the adoptive child and her family lived in Alaska, and the petitioner had consented to the adoption in an Alaska court. In re Adoption of T.N.F., 781 P.2d 973 (Alaska 1989), cert. denied, 494 U.S. 1030, 110 S. Ct. 1480, 108 L. Ed. 2d 616 (U.S. 1990).

Where the biological mother petitioned to set aside an adoption decree before the one-year period expired, this section did not apply. The biological mother’s mere mistake about post-adoption visitation was not a basis to invalidate the adoption decree. In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009).

Application to set aside adoption held time-barred. —

Court properly dismissed a father’s petition to set aside an adoption under the Indian Child Welfare Act because Alaska’s one-year statute of limitations applied; it provided an appropriate balance between the important federal rights of Indian tribes and families and the best interests of adopted children; where the trial court issued the adoption decree on September 6, 2002, and the father petitioned on October 21, 2004, to invalidate the adoption, the petition was time-barred. In re Adoption of Erin G., 140 P.3d 886 (Alaska), cert. denied, 549 U.S. 1036, 127 S. Ct. 591, 166 L. Ed. 2d 439 (U.S. 2006).

Decree of adoption vacated.

Superior court did not err in vacating adoption by foster parents because the court found that they misrepresented their intent to abide by the visitation provisions in a formal settlement agreement with the maternal grandparents which was incorporated into the adoption decree, under which agreement the grandparents waived their right to pursue adoption in exchange for specific guarantees and assurance that the foster parents would comply with the visitation agreement and facilitate a relationship between the children and the grandparents. In re Adoption of E.H., 431 P.3d 1190 (Alaska 2018).

Collateral references. —

Annulment or vacation of adoption decree by adopting parent or natural parent consenting to adoption, 2 ALR2d 887.

Construction and application of Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.A. §§ 1901 et seq.) upon child custody determinations, 89 ALR5th 195.

Sec. 25.23.150. Confidential nature of hearings and records in adoption proceedings.

  1. All hearings held in proceedings under this chapter shall be held in closed court without admittance of any person other than essential officers of the court, the parties, their witnesses, counsel, persons who have not previously consented to the adoption but are required to consent, and representatives of the agencies present to perform their official duties.
  2. The papers and records relating to an adoption or a termination of parental rights under AS 25.23.180(c)(2) that are a part of the permanent record of a court are subject to inspection only upon consent of the court. The papers and records relating to an adoption or a termination of parental rights under AS 25.23.180(c)(2) on file with the department, an agency, or an individual are subject to inspection only with consent of all interested persons or by order of a court for good cause shown. Except as provided in this section, adoption records of the Bureau of Vital Statistics are subject to inspection under the provisions of AS 18.50.
  3. Except as otherwise provided by law, or as authorized in writing by the adopted child, if 14 or more years of age, or by the adoptive parent, or upon order of the court for good cause shown, a person may not disclose the identity or address of an adoptive parent, an adopted child, a child who is the subject of a proceeding under AS 25.23.180(c)(2) , or a biological parent whose parental rights have been terminated on grounds set out in AS 25.23.180(c)(2) .
  4. The court may order the disclosure of a natural parent’s identity or address only if
    1. the court makes an express finding that the disclosure is required because of a medical necessity or other extraordinary circumstance; and
    2. the natural parent unless the parent’s parental rights have been terminated on grounds set out in AS 25.23.180(c)(2) , the child, and the adoptive parents are afforded proper notice and a hearing; the court may waive the hearing and notice requirement if it finds there is a medical necessity that poses an immediate risk to life.

History. (§ 1 ch 84 SLA 1974; am §§ 14 — 16 ch 140 SLA 1986; am §§ 6 — 8 ch 50 SLA 1987; am §§ 8 — 10 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.150. Renumbered in 1982.

Effect of amendments. —

The 2018 amendment, effective September 13, 2018, throughout the section, substituted “AS 25.23.180(c)(2) ” for “AS 25.23.180(c)(3)”.

Notes to Decisions

Cited in

In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of J.B.K., 865 P.2d 737 (Alaska 1993).

Collateral references. —

Restricting access to judicial records of concluded adoption proceedings, 83 ALR3d 800, 103 ALR5th 255.

Restricting access to judicial records of pending adoption proceedings, 83 ALR3d 824.

Sec. 25.23.160. Recognition of foreign decree affecting adoption.

A decree of court terminating the relationship of parent and child or establishing the relationship by adoption issued under due process of law by a court of any other jurisdiction within or outside of the United States shall be recognized in this state and the rights and obligations of the parties as to matters within the jurisdiction of this state shall be determined as though the decree were issued by a court of this state.

History. (§ 1 ch 84 SLA 1974)

Revisor’s notes. —

Formerly AS 20.15.160. Renumbered in 1982.

Sec. 25.23.170. Applications for birth certificates.

Within 30 days after an adoption decree becomes final, the clerk of the court shall, if requested by the adoptive parents, prepare an application for a birth certificate in the name of the adopted person. Upon issuing a decree terminating parental rights on grounds set out in AS 25.23.180(c)(2) the court may order the preparation of an application for a birth certificate in the name of the child without reference to the parent whose parental rights have been terminated. The clerk of the court shall forward the application

  1. for a person born in the United States, to the appropriate vital statistics office of the place, if known, where the adopted person was born and a copy of the decree to the department for statistical purposes; and
  2. for a person born outside the United States to the state registrar of vital statistics.

History. (§ 1 ch 84 SLA 1974; am § 5 ch 76 SLA 1982; am § 9 ch 50 SLA 1987; am § 11 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.170(a). Renumbered in 1982. As amended by § 5, ch. 76, SLA 1982, this section contained a subsection (b), which has been redesignated AS 25.23.175 .

Cross references. —

For modification of support order by the child support services agency, see AS 25.27.193 .

Effect of amendments. —

The 2018 amendment, effective September 13, 2018, in the introductory language, substituted “AS 25.23.180(c)(2) ” for “AS 25.23.180(c)(3)”.

Notes to Decisions

Tribal court adoption decrees. —

For case discussing law applicable to Indian tribal court adoption decrees, see Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir. Alaska 1991).

Cited in

In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003).

Sec. 25.23.173. Indian child adoption reports.

After entering a final decree or order in an Indian child adoptive placement, the court shall send to the Secretary of the Interior a copy of the decree or order and other information required by 25 U.S.C. 1951 (sec. 301(a) of the Indian Child Welfare Act of 1978).

History. (§ 17 ch 140 SLA 1986)

Sec. 25.23.175. Findings concerning persons born outside the United States.

In the case of the adoption of a person born outside the United States, if requested by the adoptive parents, the court shall make findings, based on evidence from the petitioner and other reliable state or federal sources, on the date and place of birth and parentage of the adopted person. The findings shall be certified by the court and included with the report of adoption filed with the state registrar of vital statistics under AS 18.50.210 .

History. (§ 5 ch 76 SLA 1982)

Revisor’s notes. —

Enacted as AS 20.15.170(b). Renumbered in 1982.

Sec. 25.23.180. Relinquishment and termination of parent and child relationships.

  1. The rights of a parent with reference to a child, including parental right to control the child or to withhold consent to an adoption, may be relinquished and the relationship of parent and child terminated in or before an adoption proceeding as provided in this section.
  2. All rights of a parent with reference to a child, including the right to receive notice of a hearing on a petition for adoption, may be relinquished and the relationship of parent and child terminated by a writing, signed by the parent, regardless of the age of the parent, a copy of which shall be given to the parent,
    1. in the presence of a representative of an agency taking custody of the child, whether the agency is within or outside of the state or in the presence and with the approval of a court within or outside of this state in which the minor was present or in which the parent resided at the time it was signed, which relinquishment may be withdrawn within 10 days after it is signed or the child is born, whichever is later; and the relinquishment is invalid unless it states that the parent has this right of withdrawal; or
    2. in any other situation if the petitioner has had custody of the minor for two years, but only if notice of the adoption proceeding has been given to the parent and the court finds, after considering the circumstances of the relinquishment and the long continued custody by the petitioner, that the best interest of the child requires the granting of adoption.
  3. The relationship of parent and child may be terminated by a court order issued in connection with a proceeding
    1. under this chapter or a proceeding under AS 47.10 on the grounds
      1. specified in AS 47.10.080(o) or 47.10.088 ; or
      2. that a parent who does not have custody is unreasonably withholding consent to adoption, contrary to the best interest of the minor child;
    2. under this chapter, a proceeding under AS 47.10, or an independent proceeding on the grounds that the parent committed an act constituting sexual assault, sexual abuse of a minor, or incest under the laws of this state, or a comparable offense under the laws of the state where the act occurred, that resulted in conception of the child and that termination of the parental rights of the biological parent is in the best interests of the child.
  4. For the purpose of an adoption proceeding under this chapter, a decree issued by a court of competent jurisdiction in this or another state terminating all rights of a parent with reference to a child or the relationship of parent and child dispenses with the required
    1. consent by that parent to an adoption of that child; and
    2. notice of a proceeding to that parent unless otherwise required by this section.
  5. A petition for termination of the relationship of parent and child made in connection with an adoption proceeding or in an independent proceeding for the termination of parental rights on grounds set out in (c)(2) of this section may be made by
    1. either parent if termination of the relationship is sought with respect to the other parent;
    2. the petitioner for adoption, the guardian of the person, the legal custodian of the child, or the individual standing in parental relationship to the child;
    3. an agency; or
    4. another person having a legitimate interest in the matter.
  6. Before the petition is heard, notice of the hearing on the petition and opportunity to be heard shall be given the parents of the child, the guardian of the person of the child, the person having legal custody of the child, and, in the discretion of the court, a person appointed to represent any party.
  7. Notwithstanding the provisions of (b) of this section, a relinquishment of parental rights with respect to a child, executed under this section, may be withdrawn by the parent, and a decree of a court terminating the parent and child relationship on grounds set out in (c)(1) of this section may be vacated by the court upon motion of the parent, if the child is not on placement for adoption and the person having custody of the child consents in writing to the withdrawal or vacation of the decree.
  8. The respondent to a petition filed for the termination of parental rights on grounds set out in (c)(2) of this section is entitled to representation in the proceedings by an attorney. If the respondent is financially unable to employ an attorney, the court shall appoint the office of public advocacy to represent the respondent in the proceedings.
  9. Proceedings for the termination of parental rights on the grounds set out in (c)(2) of this section do not affect the rights of a victim of sexual assault, sexual abuse of a minor, or incest to obtain legal and equitable civil remedies for all injuries and damages arising out of the perpetrator’s conduct.
  10. In a relinquishment of parental rights executed under (a) of this section, a parent may retain privileges with respect to the child, including the ability to have future contact, communication, and visitation with the child. A retained privilege must be stated in writing with specificity. Not less than 10 days after the relinquishment is signed, the court may enter an order terminating parental rights if the court finds that termination of parental rights under the terms of the agreement is in the child’s best interest. If a parent has retained one or more privileges, the court shall incorporate the retained privileges into the termination order with a recommendation that the retained privileges be incorporated in an adoption or legal guardianship decree.
  11. A voluntary relinquishment may not be withdrawn and a termination order may not be vacated on the ground that a retained privilege has been withheld from the relinquishing parent or that the relinquishing parent has been unable, for any reason, to act on a retained privilege, except as provided in Rule 60(b), Alaska Rules of Civil Procedure.
  12. After a termination order is entered, a person who has voluntarily relinquished parental rights under this section may request a review hearing, upon a showing of good cause, to seek enforcement or modification of or to vacate a privilege retained in the termination order. The court may modify, enforce, or vacate the retained privilege if the court finds, by clear and convincing evidence, that it is in the best interest of the child to do so.
  13. After a termination order is entered and before the entry of an adoption or legal guardianship decree, a prospective adoptive parent or a guardian of a child who is the subject of an adoption decree may request, after providing notice as specified under this subsection, that the court decline to incorporate a privilege retained in a termination order and recommended for incorporation in an adoption or guardianship decree under (j) of this section. The request made under this subsection may only be considered by the court after providing at least 20 days’ notice by certified mail to the last known address of the person who has voluntarily relinquished parental rights to the child. The notice under this subsection must describe the request and explain that the recipient of the notice may submit a written statement under penalty of perjury to the court that the recipient either agrees with or opposes the request. The notice must also include the deadline for submitting the statement and the mailing address of the court. The court may decline to incorporate a retained privilege if the person who retained the privilege agrees with the request or if the court finds that it is in the child’s best interest.
  14. A person who relinquished parental rights is entitled to the appointment of an attorney if a hearing is requested under (l) or (m) of this section to the same extent as if the parent’s rights had not been terminated in a child-in-need-of-aid proceeding.
  15. A petition for termination of parental rights under (c)(2) of this section may be filed to initiate an independent proceeding not connected to a petition for adoption or a proceeding under AS 47.10.

History. (§ 1 ch 84 SLA 1974; am § 32 ch 21 SLA 1985; am §§ 10 — 13 ch 50 SLA 1987; am § 12 ch 99 SLA 1998; am § 4 ch 64 SLA 2005; am § 31 ch 43 SLA 2013; am §§ 12 – 17 ch 24 SLA 2018)

Revisor’s notes. —

Formerly AS 20.15.180. Renumbered in 1982.

Cross references. —

For the text of Rule 9(a), Alaska Adoption Rules, amending the content of the consent or relinquishment form to be used in a voluntary termination of parental rights to conform to the requirement of (j) of this section that a retained privilege be stated with specificity, see § 56, ch. 64, SLA 2005, in the 2005 Temporary and Special Acts.

For the effect of the 2018 amendments to (c) and (o) of this section on Rules 1(b) and 6(c), Alaska Adoption Rules, see sec. 19(b), ch. 24, SLA 2018, in the 2018 Temporary and Special Acts.

Administrative Code. —

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in (i), inserted “sexual assault,” following “rights of a victim of”.

The 2018 amendment, effective September 13, 2018, in (c), substituted “under this chapter, a proceeding under AS 47.10, or an independent proceeding on the grounds” for “or (3)” at the beginning of (c)(2), inserted “, or incest” following “abuse of a minor”, and made stylistic and related changes; in the introductory language in (e), substituted “set out in (c)(2)” for “set out in (c)(3)” near the end; in (g), deleted “and (2)” following “set out in (c)(1)”; in (h) and (i), substituted “set out in (c)(2)” for “set out in (c)(3)”; added (o).

Editor’s notes. —

Section 60(b), ch. 64, SLA 2005, provides that the 2005 enactment of (j) — (n) of this section has the effect of amending Rules 9 and 13, Alaska Adoption Rules, by requiring retained privileges to be set out in the relinquishment form and order and by providing additional procedures related to the relinquishment. Section 60(c), ch. 64, SLA 2005, provides that the 2005 enactment of (k) — (n) of this section has the effect of amending Rule 13, Alaska Adoption Rules, by authorizing review hearings for voluntary relinquishments.

Notes to Decisions

Applicability. — Rules and statutes cited by the parties did not apply to a mother's situation because the mother's relinquishment was executed under AS 47.10.089 , not under AS 25.23.180 , so subsection (g) of this section did not apply. Sabrina V. v. State, 442 P.3d 717 (Alaska 2019).

Substantial compliance with consent requirements. —

When it is clear that the statutory purpose has been fulfilled, substantial compliance with the requirements governing consent to adoption is sufficient. S.O. v. W.S., 643 P.2d 997 (Alaska 1982), overruled in part, Rosen v. State Bd. of Pub. Accountancy, 689 P.2d 478 (Alaska 1984).

Unreasonable refusal to consent to adoption. —

The trial court did not err in finding that the father’s refusal to consent to the adoption of his child by the maternal grandparents was unreasonable where the father’s conviction of the murder of the child’s mother had been affirmed and he had only slight chance of prevailing on further appeals. R.F. v. S.S., 928 P.2d 1194 (Alaska 1996).

Applicability of requirement to include statement of right to withdraw. —

The inclusion of a statement of right to withdraw requirement of paragraph (b)(1) is not applicable to a consent to adoption. B.J.B.A. v. M.J.B., 620 P.2d 652 (Alaska 1980).

Denial of Rita T. Hearing. —

Where a father voluntarily relinquished his parental rights and subsequently attempted to withdraw his relinquishment, the superior court did not abuse its discretion in denying him a hearing as provided for in Rita T. v. State, 623 P.2d 344 (Alaska 1981) because the record demonstrated that the father did not have the ability to properly care for the special needs of his children. Alden H. v. Office of Children's Servs., 108 P.3d 224 (Alaska 2005).

Termination of parental rights. —

The language in subsection (a) stating that termination of parental rights can occur “before an adoption proceeding” must be read in conjunction with the “relinquishment” language of subsection (b), which does not contemplate involuntary termination actions, but instead refers to cases in which parents choose to give up their parental rights. S.J. v. L.T., 727 P.2d 789 (Alaska 1986).

Absent statutory authorization, there can be no termination of parental rights and obligations; therefore, 1986 termination order was erroneously entered since it was not entered in a statutorily authorized adoption proceeding or a child-in-need-of-aid proceeding. Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994).

It was error to deny a mother's petition to terminate the parental rights of a father whose sexual assault of the mother resulted in the child's birth for lack of statutory authority because a termination action independent of adoption or Child In Need of Aid procedures was statutorily authorized, and later statutory amendments merely clarified that authority. Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Conditional relinquishment not statutorily authorized. —

Biological mother’s relinquishment of parental rights in her child, conditioned on the adoption of the child by named adoptive parents, did not constitute an effective relinquishment of parental rights because conditional relinquishments were not authorized by this section. Native Village of Napaimute Traditional Council v. Terence W. (In re Adoption of M.W.), 79 P.3d 623 (Alaska 2003).

De novo hearing on attempt to withdraw relinquishment. —

Superior court did not abuse its discretion in failing to hold a de novo hearing to review father’s relinquishment where the father failed to mention what new evidence he intended to present at the hearing or explain why such evidence was absent from his submissions to the master. Alden H. v. Office of Children's Servs., 108 P.3d 224 (Alaska 2005).

Right to withdraw relinquishment agreement. —

Nothing in the father’s relinquishment agreement gave rise to an automatic right to withdraw the relinquishment and vacate the termination order where the relinquishment actually stated that the placement of the children with their grandmother was conditional. Alden H. v. Office of Children's Servs., 108 P.3d 224 (Alaska 2005).

Right of contact with children. —

Relinquishment agreement did not preserve any right for the father to contact his children because, under the agreement, the father’s “right of contact” with his children was subject to the “sole discretion” of the adoptive parents in determining the children’s best interests. Alden H. v. Office of Children's Servs., 108 P.3d 224 (Alaska 2005).

Denial of visitation. —

Documentary evidence showed clearly that contact with the father was not in the best interests of the children; beginning a relationship with the father was likely to make the boys’ lives more confusing and problematic. Alden H. v. Office of Children's Servs., 108 P.3d 224 (Alaska 2005).

Revocation before entry of termination order. —

Biological mother’s relinquishment of parental rights in her child, conditioned on the adoption of the child by named adoptive parents, did not constitute an effective relinquishment of parental rights where the mother revoked her consent before entry of the decree terminating her parental rights. Native Village of Napaimute Traditional Council v. Terence W. (In re Adoption of M.W.), 79 P.3d 623 (Alaska 2003).

Sexual abuse termination. —

The superior court erred in denying stepfather’s motion for a hearing on natural father’s alleged abuse of his children since, under paragraph (c)(1), stepfather could properly seek to terminate natural father’s parental rights in connection with adoption proceedings as specified in AS 47.10.080(c)(3) . In re Adoption of J.B.K., 865 P.2d 737 (Alaska 1993).

Conception resulting from sexual assault. —

Paragraph (c)(3) expressly authorizes a court to terminate a biological father’s parental rights in an adoption proceeding if it finds that his child’s conception resulted from an act of sexual assault and that termination is in the child’s best interests. B.F. v. D.M. (In re A.F.M.), 15 P.3d 258 (Alaska 2001).

“Parent who does not have custody”. —

A parent who has rights to visitation is not a parent who does not have “custody.” K.F. v. State, Dep't of Health & Social Servs., 912 P.2d 1255 (Alaska 1996).

Where there was no court order that deprived the mother of visitation rights, and she was actively visiting the children and cooperating with the remedial efforts made by the state until the state stopped her visits, she was not “a parent who does not have custody” within the meaning of subsection (c)(2) of this section. K.F. v. State, Dep't of Health & Social Servs., 912 P.2d 1255 (Alaska 1996).

Appointed counsel. —

An entitlement to the appointment of counsel, while applicable in a termination of parental rights case, did not apply in third party custody proceedings and thus, the trial court did not err by denying the mother appointed counsel. Dara v. Gish, 404 P.3d 154 (Alaska 2017).

Stated in

In re J.R.S., 690 P.2d 10 (Alaska 1984).

Cited in

Nelson v. Jones, 944 P.2d 476 (Alaska 1997); G.C. v. Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 67 P.3d 648 (Alaska 2003).

Collateral references. —

Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 80 ALR3d 1141.

Right of indigent parent to appointed counsel in proceeding for involuntary termination of parental rights, 92 ALR5th 379.

Parents’ mental illness or mental deficiency as ground for termination of parental rights — Issues concerning guardian ad litem and counsel, 118 ALR5th 561.

Parents’ mental illness or mental deficiency as ground for termination of parental rights — Applicability of Americans With Disabilities Act, 119 ALR5th 351.

Parents’ mental illness or mental deficiency as ground for termination of parental rights — Evidentiary issues, 122 ALR5th 385.

Sec. 25.23.185. Records and information.

  1. At the time a petition for adoption is filed with the court, the agency or individual placing the person for adoption, or the petitioner, shall file with the court, for release to the state registrar of vital statistics, the following information, or an explanation of its unavailability, on forms provided by the department:
    1. the address of each parent named on the original birth certificate; and
    2. background information required under AS 18.50.510 .
  2. Upon entry of a decree of adoption, the clerk of the court shall transmit to the Bureau of Vital Statistics the information provided under (a) of this section.  The bureau shall attach the information to the original birth certificate of the adopted person.
  3. A child adoption agency licensed under former AS 47.35 and a child placement agency licensed under AS 47.32 shall maintain records of the information required to be furnished to the court under this section or under regulations of the commissioner implementing this section. If a child adoption agency or child placement agency ceases to place persons for adoption, it shall transfer its records to the commissioner.

History. (§ 18 ch 140 SLA 1986; am § 4 ch 124 SLA 1994; am § 13 ch 57 SLA 2005)

Notes to Decisions

Cited in

In re K.L.J., 813 P.2d 276 (Alaska 1991); In re Adoption of Bernard A., 77 P.3d 4 (Alaska 2003).

Collateral references. —

Restricting access to judicial records of concluded adoption proceedings, 103 ALR5th 255.

Sec. 25.23.190. Subsidy for hard-to-place child.

A hard-to-place child in the permanent custody of the department in a foster home for not less than one year may not be denied the opportunity for a permanent home if the achievement of this depends on continued subsidy by the state.

History. (§ 1 ch 84 SLA 1974; am § 2 ch 36 SLA 1977)

Revisor’s notes. —

Formerly AS 20.15.190. Renumbered in 1982.

Administrative Code. —

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

Legislative history reports. —

For report on ch. 36, SLA 1977 (SB 54), see 1977 Senate Journal, p. 56.

Notes to Decisions

Cited in

Martin v. Martin, 303 P.3d 421 (Alaska 2013).

Sec. 25.23.200. Investigation of home for subsidized hard-to-place child.

Persons who are caring for a hard-to-place child on a foster parent basis and who have applied to adopt the hard-to-place child and to receive payments for the care and support of the hard-to-place child shall be evaluated as to their suitability as adoptive parents by means of an adoptive home study. Persons who are caring for a hard-to-place child in the state’s custody and who wish to be appointed legal guardians of the child under AS 13.26.132 , and to receive payments for the care and support of the child, shall be evaluated as to their suitability as guardians by means of a guardianship study. A home study or guardianship study shall be made by the commissioner’s adoption staff or on the commissioner’s behalf by an authorized agency or individual that provides adoption services.

History. (§ 1 ch 84 SLA 1974; am § 3 ch 36 SLA 1977; am § 2 ch 204 SLA 1990)

Revisor’s notes. —

Formerly AS 20.15.200. Renumbered in 1982.

In 2016, "AS 13.26.132 " was substituted for "AS 13.26.045 " to reflect the renumbering of that section.

Administrative Code. —

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

For children in custody or under supervision: needs and income, see 7 AAC 53, art. 3.

Notes to Decisions

Applied in

Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Sec. 25.23.210. Amount and duration of subsidy payments.

  1. The department may adopt regulations to set the amount and length of time that a subsidy for a hard-to-place child may be granted.
  2. A subsidy granted by the department under this section may be
    1. paid for a specified length of time not to extend after the child’s 18th birthday; and
    2. a deferred subsidy; in this paragraph, “deferred subsidy” means that no monetary reimbursement is paid to a family but other benefits are paid for the child.
  3. A subsidy granted under this section may not
    1. exceed the existing rate for foster care; or
    2. be changed without the written request or consent of the person caring for the child.
  4. The department shall review whether the amount of a subsidy granted for a child is appropriate on request of the person caring for the child.
  5. Subsidies shall be paid from the same public funds and in the same manner as foster care payments.

History. (§ 1 ch 84 SLA 1974; am § 4 ch 36 SLA 1977; am § 1 ch 31 SLA 2003; am § 3 ch 38 SLA 2008)

Revisor’s notes. —

Formerly AS 20.15.210. Renumbered in 1982.

Administrative Code. —

For hearings, see 7 AAC 49.

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

For children in custody or under supervision: needs and income, see 7 AAC 53, art. 3.

Sec. 25.23.220. Annual reevaluation of subsidy. [Repealed, § 4 ch 31 SLA 2003.]

Sec. 25.23.230. Regulations.

The department shall adopt regulations necessary to implement the provisions of AS 25.23.185 25.23.240 .

History. (§ 1 ch 84 SLA 1974; am § 19 ch 140 SLA 1986)

Revisor’s notes. —

Formerly AS 20.15.230. Renumbered in 1982.

Administrative Code. —

For hearings, see 7 AAC 49.

For subsidized adoption and subsidized guardianship payments, see 7 AAC 53, art. 2.

Sec. 25.23.240. Definitions.

In this chapter, unless the context otherwise requires,

  1. “adult” means an individual who has reached the age of majority;
  2. “agency” means any person certified, licensed, or otherwise specially empowered by law or regulation to place minors for adoption;
  3. “child” means a son or daughter, whether by birth or by adoption;
  4. “commissioner” means the commissioner of health and social services;
  5. “court” means the superior court of this state, and, when the context requires, the court of another state empowered to grant petitions for adoption or guardianship or to terminate parental rights;
  6. “department” means the Department of Health and Social Services;
  7. “hard-to-place child” means a minor who is not likely to be adopted or to obtain a guardian by reason of physical or mental disability, emotional disturbance, recognized high risk of physical or mental disease, age, membership in a sibling group, racial or ethnic factors, or any combination of these conditions;
  8. “minor” means a person who has not reached the age of majority;
  9. “sexual abuse of a minor” means a sexual offense defined in AS 11.41.434 , 11.41.436 , 11.41.438 , or 11.41.440 ;
  10. “sexual assault” means a sexual offense defined in AS 11.41.410 11.41.427 ;
  11. “stepparent” means the spouse of a natural parent of the child residing in the same household.

History. (§ 1 ch 84 SLA 1974; am § 5 ch 36 SLA 1977; am § 20 ch 140 SLA 1986; am §§ 14, 15 ch 50 SLA 1987; am §§ 4, 5 ch 204 SLA 1990; am § 32 ch 43 SLA 2013)

Revisor’s notes. —

Formerly AS 20.15.240. Renumbered in 1982. Reorganized in 1987 to alphabetize the defined terms.

Cross references. —

For age of majority, see AS 25.20.010 25.20.020 .

Effect of amendments. —

The 2013 amendment, effective July 1, 2013, in (10), substituted “AS 11.41.410 11.41.427 ” for “AS 11.41.410 or 11.41.420 ”.

Notes to Decisions

Applied in

Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Cited in

Dep't of Health & Soc. Servs. v. Native Village of Curyung, 151 P.3d 388 (Alaska 2006); In re Hannah L., 390 P.3d 1153 (Alaska 2017).

Chapter 24. Divorce and Dissolution of Marriage.

Cross references. —

For provisions related to community property, see AS 34.77.

Collateral references. —

Parley and Lindey, Lindey on Separation Agreements and Antenuptial Contracts (Matthew Bender).

Rutkin, Troyan, and Blumberg, Valuation and Distribution of Marital Property (Matthew Bender).

Article 1. Divorce and Annulment.

Collateral references. —

4 Am. Jur. 2d, Annulment of Marriage, § 1 et seq.

24 Am. Jur. 2d, Divorce and Separation, § 1 et seq.

27A C.J.S., Divorce, § 1 et seq.

55 C.J.S., Marriage, § 70 et seq.

Effect as res judicata of denial of divorce in sister state or foreign country, 4 ALR2d 107.

Delay in bringing suit as affecting right to divorce, 4 ALR2d 1321.

False allegation of plaintiff’s domicil or residence in the state as ground for vacation of default decree of divorce, 6 ALR2d 596.

Standing of strangers to divorce proceeding to attack validity of divorce decree, 12 ALR2d 717.

Power to grant annulment of marriage against nonresident on constructive service, 43 ALR2d 1086.

Right to attack validity of marriage after death of party thereto, 47 ALR2d 1393.

Limitation of actions for annulment of marriage, 52 ALR2d 1163.

Injunction against suit in another state or county for divorce or separation, 54 ALR2d 1240.

Necessity and sufficiency of corroboration of plaintiff’s testimony concerning ground for annulment of marriage, 71 ALR2d 620.

Decree in suit for “separation” as res judicata in subsequent suit for divorce or annulment, 90 ALR2d 745.

Attorney’s right to continue divorce or separation suit against wishes of his client, 92 ALR2d 1009.

Mental incompetency of defendant at time of action as precluding annulment of marriage, 97 ALR2d 483.

Husband’s liability for expenses incurred by wife in investigating his marital transgressions, 99 ALR2d 264.

Provision of contract or stipulation waiving wife’s right to counsel fees in event of divorce or separation action, 3 ALR3d 716.

Court’s power to vacate decree of divorce or separation upon request of both parties, 3 A.L.R.3d 1216.

Power of incompetent spouse’s guardian, committee, or next friend to sue for granting or vacation of divorce or annulment of marriage, or to make a compromise or settlement in such suit, 6 ALR3d 681.

Assumption or denial of jurisdiction of action involving matrimonial disputes, 9 ALR3d 545.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 ALR3d 212.

Validity of conditional gift depending on divorce or separation, 14 ALR3d 1219.

Right of one spouse, over objections, to voluntarily dismiss claim for divorce, annulment, or similar marital relief, 16 ALR3d 283.

Remarriage as affecting right to appeal from divorce decree, 29 ALR3d 1167.

Enforcement of antenuptial contract or settlement conditioned upon marriage, where marriage was subsequently declared void, 46 ALR3d 1403.

Valid foreign divorce as affecting local order previously entered for separate maintenance, 49 ALR3d 1266.

Right of indigent to proceed in marital action without payment of costs, 52 ALR3d 844.

Effect of invalidity of provision conditioning testamentary gift upon divorce of beneficiary, on alternative provision conditioning gift upon spouse’s death, 74 ALR3d 1095.

Appointment of counsel for indigent husband and wife in action for divorce or separation, 85 ALR3d 983.

Vacating or setting aside divorce decree after remarriage of party, 17 ALR4th 1153.

Jury trial in state court divorce proceedings, 56 ALR4th 955.

Insanity as defense to divorce or separate suit — post-1950 cases, 67 ALR4th 277.

Sec. 25.24.010. Right of action for divorce.

A husband or wife may maintain an action against the other for divorce or to have the marriage declared void.

History. (§ 12.01 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.070 . Renumbered in 1983.

Cross references. —

For grounds for personal jurisdiction over a nonresident in an action for divorce, see AS 09.05.015(a)(12) .

Notes to Decisions

Annotator’s notes. —

Most of the cases cited in the notes below were decided under former AS 09.55.140, which specified a one-year residence requirement for divorce.

Former one-year residency requirement unconstitutional. —

One-year residency requirement of former AS 09.55.140, prior to subsequent amendment, was unconstitutional. State v. Adams, 522 P.2d 1125 (Alaska 1974).

The court has no jurisdiction of the action where the plaintiff was not a resident of Alaska. Cutting v. Cutting, 11 Alaska 255 (D. Alaska 1946).

Residence means a place of abode, and within the meaning of this section it is the place where the plaintiff resides. Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905).

And has the same meaning as domicile. —

Wilson v. Wilson, 10 Alaska 616 (D. Alaska 1945).

But domicile is not the sole jurisdictional basis for divorce unless made so by statute. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

Domicile within this state is not a jurisdictional prerequisite to the maintenance of a divorce action. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

And other relationships between state and individual may be sufficient to confer jurisdiction. —

Where domicile is a statutory jurisdictional prerequisite it is quite correct to say that jurisdiction for divorce is founded on this concept. It is quite another matter to flatly declare that there may be no other relation between a state and an individual which will create a sufficient interest in the state under the due process clause to give it power to decree divorces. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

The pendency of divorce proceedings in one state is not a bar to subsequent proceedings in another state. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

Residency is a question of intent and fact combined. Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905).

Necessity for actual presence in state. —

For cases holding that actual presence in the state during the period required under former law was unnecessary, see Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905); Olson v. Olson, 4 Alaska 624 (D. Alaska 1913).

Change of residence must embrace (1) intention and (2) acquisition of new domicile. Wilson v. Wilson, 10 Alaska 616 (D. Alaska 1945).

Allegations of residency required. —

Anderson v. Anderson, 5 Alaska 138 (D. Alaska 1914); Jacobs v. Jacobs, 10 Alaska 46 (D. Alaska 1941).

Post-death action to invalidate marriage. —

Probate court could not declare a marriage void after the wife had died even though the estate sought to invalidate the marriage because the wife had been incompetent and the husband had fraudulently induced her to enter into the marriage. Riddell v. Edwards, 76 P.3d 847 (Alaska 2003).

Cited in

Department of Revenue, Child Support Enforcement Div. v. A.H., 880 P.2d 1048 (Alaska 1994); Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

Sec. 25.24.020. Void marriages.

A marriage which is prohibited by law on account of consanguinity between the persons, or a subsequent marriage contracted by a person during the life of a former husband or wife which marriage has not been annulled or dissolved is void.

History. (§ 12.02 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.080. Renumbered in 1983.

Cross references. —

For criminal provisions prohibiting unlawful marrying, see AS 11.51.140 ; for provisions specifying what marriages are prohibited, see AS 25.05.021 .

Notes to Decisions

Marriage upheld. —

Despite the fact that husband ingratiated himself to his wife before their marriage for the purpose of obtaining her assets and that his wife suffered from dementia for the majority of their relationship, upon her death the probate court upheld the validity of their marriage. Riddell v. Edwards, 76 P.3d 847 (Alaska 2003).

Cited in

Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Collateral references. —

Consanguinity, affinity or interracial bar as grounds for attack on validity of marriage after death of party thereto, 47 ALR2d 1403, 1405.

Construction of statute making bigamy or prior lawful subsisting marriage to third person a ground for divorce, 3 ALR3d 1108.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 ALR3d 759.

Sec. 25.24.030. Voidable marriages.

A marriage may be declared void for any of the following causes existing at the time of the marriage:

  1. that the party in whose behalf it is sought to have the marriage declared void was under the age of legal consent, and the marriage was contracted without the consent of the parents, guardian, or person having charge of that party, unless, after attaining the age of consent, the party for any time freely cohabited with the other as husband and wife;
  2. that either party was of unsound mind, unless that party, after coming to reason, freely cohabited with the other as husband and wife;
  3. that the consent of either party was obtained by fraud, unless that party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
  4. that the consent of either party was obtained by force, unless that party afterwards freely cohabited with the other as husband and wife;
  5. failure to consummate the marriage at the time of the marriage and continuing at the commencement of the action.

History. (§ 12.03 ch 101 SLA 1962; am § 1 ch 3 SLA 1974)

Revisor’s notes. —

Formerly AS 09.55.090. Renumbered in 1983.

Cross references. —

For provisions concerning voidable marriages, see AS 25.05.031 .

Notes to Decisions

Annulment and divorce may be joined in same action. —

A complaint stating two causes of action, one to have a marriage contract declared void ab initio, and the second for a dissolution of the marriage contract on the grounds of cruel and inhuman treatment, are properly united in the same complaint, since both causes of action arise out of the same transaction, or are connected with the same subject of action. Olson v. Olson, 4 Alaska 624 (D. Alaska 1913).

Only in extreme cases may courts annul marriages on the ground of fraud. Vaisvila v. Vaisvila, 11 Alaska 46 (D. Alaska 1946).

And only if consent obtained by fraud. —

In an action for annulment on the ground of fraud it must appear that the consent of one party or the other was obtained by fraud. Vaisvila v. Vaisvila, 11 Alaska 46 (D. Alaska 1946).

Evidence of fraud must be clear. —

The evidence in an action for annulment of the marriage contract on the grounds of fraud must be clear and convincing. Vaisvila v. Vaisvila, 11 Alaska 46 (D. Alaska 1946).

Willful refusal to cohabit is not proof of fraud. —

Willful refusal of defendant to cohabit with plaintiff, if it was willful, is not of itself sufficient proof of his intention to perpetrate a fraud upon her. Vaisvila v. Vaisvila, 11 Alaska 46 (D. Alaska 1946).

Marriage upheld. —

Despite the fact that husband ingratiated himself to his wife before their marriage for the purpose of obtaining her assets, and that his wife suffered from dementia for the majority of their relationship, upon her death the probate court upheld the validity of their marriage. Riddell v. Edwards, 76 P.3d 847 (Alaska 2003).

Collateral references. —

Avoidance of procreation of children as ground for annulment, 4 ALR2d 227.

Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage of one, as affecting right to annulment, 4 ALR2d 542.

Validity of marriage as affected by intention of the party that it should be only a matter of form or jest, 14 ALR2d 624.

Antenuptial knowledge relating to alleged grounds as barring right to annulment, 15 ALR2d 706.

What constitutes duress sufficient to warrant annulment of marriage, 16 ALR2d 1430.

Racial, religious, or political differences as ground for divorce, separation, or annulment, 25 ALR2d 928.

Refusal of sexual intercourse as ground for annulment, 28 ALR2d 499.

Fraud as grounds for attack on validity of marriage after death of party thereto, 47 ALR2d 1407.

What constitutes intoxication sufficient to warrant annulment of marriage, 57 ALR2d 1250.

Concealed premarital unchastity or parenthood as ground of divorce or annulment, 64 ALR2d 742.

Concealment of or misrepresentation as to prior marital status as ground for annulment of marriage, 15 ALR3d 759.

Concealment or misrepresentation relating to religion as ground for annulment, 44 ALR3d 972.

What constitutes mistake in the identity of one of the parties to warrant annulment of marriage, 50 ALR3d 1295.

Incapacity for sexual intercourse as ground for annulment, 52 ALR3d 589.

Spouse’s secret intention not to abide by written antenuptial agreement relating to financial matters as ground for annulment, 66 ALR3d 1282.

Homosexuality, transvestism and similar sexual practices as grounds for annulment of marriages, 68 ALR4th 1069.

Sec. 25.24.040. Action to declare marriage valid.

When either the husband or wife claims or pretends that the marriage is void or voidable, the other spouse may bring an action to have the marriage declared valid. The court may determine if the marriage is void from the beginning or from the time of the judgment or that it is valid.

History. (§ 12.04 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.100. Renumbered in 1983.

Sec. 25.24.050. Grounds for divorce.

A divorce may be granted for any of the following grounds:

  1. failure to consummate the marriage at the time of the marriage and continuing at the commencement of the action;
  2. adultery;
  3. conviction of a felony;
  4. wilful desertion for a period of one year;
  5. either
    1. cruel and inhuman treatment calculated to impair health or endanger life;
    2. personal indignities rendering life burdensome; or
    3. incompatibility of temperament;
  6. habitual gross drunkenness contracted since marriage and continuing for one year prior to the commencement of the action;
  7. [Repealed, § 68 ch 127 SLA 1974.]
  8. incurable mental illness when the spouse has been confined to an institution for a period of at least 18 months immediately preceding the commencement of the action; the status as to the support and maintenance of the mentally ill person is not altered in any way by the granting of the divorce;
  9. addiction of either party, subsequent to the marriage, to the habitual use of opium, morphine, cocaine, or a similar drug.

History. (§ 12.05 ch 101 SLA 1962; am § 2 ch 3 SLA 1974; am §§ 67, 68 ch 127 SLA 1974)

Revisor’s notes. —

Formerly AS 09.55.110. Renumbered in 1983.

Legislative history reports. —

For report on ch. 3, SLA 1974 (CSHB 102), see 1973 Senate Journal Supplement No. 13, p. 650.

Notes to Decisions

Allegations and proof must be within statute. —

One who sues to dissolve a marriage contract must make his allegations clearly within the terms of the statute, and support them by sufficient and satisfactory evidence. Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905).

Desertion takes place both in departure and intention, and after departure, the intention announced constitutes the desertion from that time. Olsen v. Olsen, 3 Alaska 616 (D. Alaska 1909).

Husband must provide home and wife must reside there. —

It is elementary that the duty devolves upon the husband to provide and furnish the home, and that it is the duty of the wife to occupy the home and to reside there unless the husband acquiesces or consents to her residence elsewhere or unless her husband’s mistreatment justifies her in leaving and remaining away from the home. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Implying consent to absence. —

No consent of the husband to the wife’s absence can be implied where he could neither control, improve, abate, nor terminate its continuance. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Cruelty must be “calculated to impair health.” —

The court is not justified in decreeing a divorce on ground of cruelty unless the evidence shows, first, that the defendant’s treatment of the plaintiff was cruel and inhuman; and, second, that it was “calculated to impair his health or endanger his life.” Cowden v. Cowden, 5 Alaska 311 (D. Alaska 1915).

But intention to impair health need not be shown. —

If either party to a marriage contract should persistently indulge in false and vile accusations of the other to such an extent that the one so accused suffered an impairment of health, it would seem that the one thus aggrieved should not be required to prove that the offender intended such a result. One is ordinarily presumed to intend the natural consequences of his own wrongful acts. If the wrongful acts produce an evil result, it is too subtle a distinction for the wrongdoers to hide behind a self-serving declaration that it was not intended, or to assign some other excuse. Day v. Day, 5 Alaska 584 (D. Alaska 1916).

And whether acts are cruel depends on circumstances. —

Certain acts are easily designated as “cruel and inhuman,” but what may be cruel and inhuman on the part of one toward another in one instance may amount only to an indignity under different circumstances or between different persons. Day v. Day, 5 Alaska 584 (D. Alaska 1916).

False accusations of infidelity and abuse which cause mental suffering and produce ill health may constitute cruel and inhuman treatment. Day v. Day, 5 Alaska 584 (D. Alaska 1916).

The good faith of the husband in offering to resume marital relations is always a question of fact to be decided upon all the evidence, especially where the offer is made to defeat a suit. Olsen v. Olsen, 3 Alaska 616 (D. Alaska 1909).

The wife should treat with respect the offer of the husband to resume marital relations but, if made with bad grace, her right of action is not thereby prejudiced. Olsen v. Olsen, 3 Alaska 616 (D. Alaska 1909).

Sufficient evidence of desertion by wife. —

Evidence showed desertion of husband by wife to have been continuous, uninterrupted, willful, and without adequate cause. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Applied in

Sloane v. Sloane, 18 P.3d 60 (Alaska 2001).

Quoted in

State v. Erickson, 574 P.2d 1 (Alaska 1978).

Cited in

Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987); Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995); Richter v. Richter, 330 P.3d 934 (Alaska 2014).

Collateral references. —

Children’s testimony as to grounds of divorce of parents, 2 ALR2d 1329.

Antenuptial knowledge relating to alleged grounds as barring right to divorce, 15 ALR2d 670.

What constitutes duress sufficient to warrant divorce, 16 ALR2d 1430.

Conviction in another jurisdiction as within statute making conviction of crime a ground of divorce, 19 ALR2d 1047.

Racial, religious or political differences as grounds for divorce, separation or annulment, 25 ALR2d 928.

What amounts to habitual intemperance, drunkenness, etc., within statute relating to substantive grounds for divorce, 29 ALR2d 925.

Written separation agreement as bar to divorce on ground of desertion, 34 ALR2d 954.

What constitutes reconciliation of separated spouses, 35 ALR2d 746; 36 ALR4th 502.

Concealed premarital unchastity or parenthood as ground of divorce, 64 ALR2d 742.

What constitutes impotency as ground for divorce, 65 ALR2d 776.

Charging spouse with criminal misconduct as cruelty constituting ground for divorce, 72 ALR2d 1197.

Homosexuality as ground for divorce, 78 ALR2d 807.

Time of pendency of former suit for divorce, annulment, alimony, or maintenance as included in period of desertion, 80 ALR2d 855.

Mistreatment of children as ground for divorce, 82 ALR2d 1361.

Insistence on sex relations as cruelty or indignity constituting grounds for divorce, 88 ALR2d 553.

Acts occurring after commencement of suit for divorce as ground for decree under original complaint, 98 ALR2d 1264.

Fault of spouse as affecting right to divorce under statute making separation a substantive ground of divorce, 14 ALR3d 502.

Retrospective effect of statute prescribing grounds of divorce, 23 ALR3d 626.

Separation within statute making separation a substantive ground for divorce, 35 ALR3d 1238.

Refusal of sexual intercourse as justifying divorce or separation, 82 ALR3d 660.

Transvestism or transsexualism of spouse as justifying divorce, 82 ALR3d 725.

What constitutes contract between husband or wife and third person promotive of divorce or separation, 93 ALR3d 523.

What constitutes “incompatibility” within statute specifying it as substantive ground for divorce, 97 ALR3d 989.

Homosexuality as ground for divorce, 96 ALR5th 83.

Sec. 25.24.060. Mediation.

  1. Except as provided in (f) and (g) of this section, at any time within 30 days after a complaint or cross-complaint in a divorce action is filed, a party to the action may file a motion with the court requesting mediation, for the purpose of achieving a mutually agreeable settlement in termination of the marriage. When a party moves for settlement mediation, the other party shall answer the motion on the record, and the judge may order mediation. When no request for mediation is made, the court may at any time order the parties to submit to mediation if it determines that mediation may result in a more satisfactory settlement between the parties.
  2. The court appoints the mediator.  The court may appoint any person the court finds suitable to act as mediator.  Each party shall have the right once to challenge peremptorily any mediator appointed.
  3. Mediation shall be conducted informally as a conference or series of conferences. The parties to the action and a court-appointed representative of any unmarried children of the marriage under the age of 19 whose interests may be affected shall attend. Counsel for the parties may attend all such conferences.
  4. After the first conference, either party may withdraw, or the mediator may terminate mediation if the mediator determines that mediation efforts are unsuccessful.  Upon withdrawal by either party or termination by the mediator, the mediator shall notify the court that mediation efforts have failed, and the divorce action shall proceed in the usual manner.
  5. Upon submission of the parties to mediation under this section, divorce proceedings then pending shall be stayed for a period of 30 days or until the court is notified that mediation efforts have failed. All court orders made under AS 25.24.140 remain in effect during the period of mediation.
  6. The court may not order or refer parties to mediation in a divorce proceeding if a protective order issued or filed under AS 18.66.100 18.66.180 is in effect. The court may not order or refer parties to mediation if a party objects on the grounds that domestic violence has occurred between the parties unless the court finds that the conditions of (g)(1) — (3) of this section are met. If the court proposes or suggests mediation under this subsection,
    1. mediation may not occur unless the victim of the alleged domestic violence agrees to the mediation; and
    2. the court shall advise the parties that each party has the right to not agree to mediation and that the decision of each party will not bias other decisions of the court.
  7. A mediator who receives a referral or order from a court to conduct mediation under (a) of this section shall evaluate whether domestic violence has occurred between the parties. A mediator may not engage in mediation when either party has committed a crime involving domestic violence unless
    1. mediation is requested by the victim of the alleged domestic violence, or proposed by the court and agreed to by the victim;
    2. mediation is provided by a mediator who is trained in domestic violence in a manner that protects the safety of the victim and any household member, taking into account the results of an assessment of the potential danger posed by the perpetrator and the risk of harm to the victim; and
    3. the victim is permitted to have in attendance a person of the victim’s choice, including an attorney.

History. (§ 2 ch 188 SLA 1975; am § 1 ch 117 SLA 1992; am §§ 43, 44 ch 64 SLA 1996)

Revisor’s notes. —

Formerly AS 09.55.115. Renumbered in 1983.

Cross references. —

For legislative intent, see § 1, ch. 188, SLA 1975 in the Temporary and Special Acts; for court rule relating to mediation, see Rule 100, Alaska Rules of Civil Procedure.

Sec. 25.24.070. Confession of adultery.

In an action for divorce on the ground of adultery, a confession of adultery is not alone sufficient to justify a judgment of divorce.

History. (§ 3.18 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.120. Renumbered in 1983.

Sec. 25.24.080. Residence requirements for action to declare marriage void.

When a marriage has been solemnized and the plaintiff is a resident of the state, an action to declare the marriage void may be brought at any time.

History. (§ 12.06 ch 101 SLA 1962; am § 8 ch 67 SLA 1983)

Revisor’s notes. —

Formerly AS 09.55.130. Renumbered in 1983.

Cross references. —

For grounds for personal jurisdiction over a nonresident in an action for annulment, see AS 09.05.015(a)(12) .

Notes to Decisions

Annotator’s notes. —

The cases cited in the notes below were decided under former AS 09.55.140, which specified a one-year residence requirement for divorce.

Former one-year residency requirement unconstitutional. —

One-year residency requirement of former AS 09.55.140, prior to subsequent amendment, was unconstitutional. State v. Adams, 522 P.2d 1125 (Alaska 1974).

The court has no jurisdiction of the action where the plaintiff was not a resident of Alaska. Cutting v. Cutting, 11 Alaska 255 (D. Alaska 1946).

Residence means a place of abode, and within the meaning of this section it is the place where the plaintiff resides. Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905).

And has the same meaning as domicile. —

Wilson v. Wilson, 10 Alaska 616 (D. Alaska 1945).

But domicile is not the sole jurisdictional basis for divorce unless made so by statute. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

Domicile within this state is not a jurisdictional prerequisite to the maintenance of a divorce action. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

And other relationships between state and individual may be sufficient to confer jurisdiction. —

Where domicile is a statutory jurisdictional prerequisite it is correct to say that jurisdiction for divorce is founded on this concept. It is quite another matter to flatly declare that there may be no other relation between a state and an individual that will create a sufficient interest in the state under the due process clause to give it power to decree divorces. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

The pendency of divorce proceedings in one state is not a bar to subsequent proceedings in another state. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

Residency is a question of intent and fact combined. Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905).

Necessity for actual presence in state. —

Actual presence in the state during the period required under former law is unnecessary, see Terrill v. Terrill, 2 Alaska 475 (D. Alaska 1905); Olson v. Olson, 4 Alaska 624 (D. Alaska 1913).

Change of residence must embrace (1) intention and (2) acquisition of new domicile. Wilson v. Wilson, 10 Alaska 616 (D. Alaska 1945).

Allegations of residency required. —

Anderson v. Anderson, 5 Alaska 138 (D. Alaska 1914); Jacobs v. Jacobs, 10 Alaska 46 (D. Alaska 1941).

Cited in

Perito v. Perito, 756 P.2d 895 (Alaska 1988).

Collateral references. —

Duty to recognize and give effect to decrees of divorce rendered in other states, or foreign country, as affected by lack of domicile of divorce forum, 1 ALR2d 1385, 28 ALR2d 1303.

Recognition as to marital status of foreign divorce decree attacked on ground of lack of domicile since Williams decision, 1 ALR2d 1385, 28 ALR2d 1303.

Length or duration of domicile, as distinguished from fact of domicile, as a jurisdictional matter, 2 ALR2d 291.

Validity of statute permitting granting of divorces to nonresidents, 3 ALR2d 666.

False allegation of plaintiff’s domicil or residence in the state as ground for vacation of default decree of divorce, 6 ALR2d 596.

Jurisdiction as affected by change of residence pendente lite, 7 ALR2d 1414.

Residence or domicile for purpose of divorce action of one in armed forces, 21 ALR2d 1163.

Applicability, to annulment actions, of residence requirements of divorce statutes, 32 ALR2d 734.

Nature and location of one’s business or calling as element in determining domicile in divorce cases, 36 ALR2d 756.

Right of nonresident wife to maintain action for separate maintenance alone against resident husband, 36 ALR2d 1369.

Lack or insufficiency of allegations of plaintiff’s residence or domicil in suit for divorce as ground for vacation of, or collateral attack on, divorce decree, 55 ALR2d 1263.

Domestic recognition of divorce decree obtained in foreign county and attacked for lack of domicil or jurisdiction of parties, 13 ALR3d 1419.

What constitutes residence or domicil within state by citizen of another country for purpose of jurisdiction in divorce, 51 ALR3d 223.

Validity of statute imposing durational residency requirements for divorce applicants, 57 ALR3d 221.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 ALR3d 431.

Sec. 25.24.090. Use of spouse’s residence.

Where one spouse is plaintiff in an action for divorce or to declare void a marriage that was not solemnized in the state, the residence of the other spouse in this state inures to the plaintiff’s benefit and the action may be instituted if the other spouse is at the time of its commencement qualified as to residence to institute a similar action.

History. (§ 12.08 ch 101 SLA 1962; am § 69 ch 127 SLA 1974)

Revisor’s notes. —

Formerly AS 09.55.150. Renumbered in 1983.

Notes to Decisions

Cited in

Perito v. Perito, 756 P.2d 895 (Alaska 1988).

Sec. 25.24.100. [Renumbered as AS 25.24.900.]

Sec. 25.24.110. Separate domicile or residence.

In an action for divorce, a spouse may acquire a separate residence or domicile from that of the other spouse without reference among other factors to misconduct or consent of the other spouse.

History. (§ 12.10 ch 101 SLA 1962; am § 70 ch 127 SLA 1974)

Revisor’s notes. —

Formerly AS 09.55.170. Renumbered in 1983.

Collateral references. —

Domicile for state tax purposes of wife living apart from husband, 82 ALR3d 1274.

Sec. 25.24.120. Defenses to adultery.

In a divorce action for adultery, the following defenses may be made:

  1. procurement;
  2. connivance;
  3. the act has been expressly forgiven or impliedly forgiven by the voluntary cohabitation of the parties after knowledge of the act;
  4. the plaintiff is also guilty of adultery and without procurement or connivance of the defendant and not forgiven as provided in the defenses to adultery; or
  5. the action has not been commenced within two years after the discovery of the act by the plaintiff.

History. (§ 12.11 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.180. Renumbered in 1983.

Sec. 25.24.130. Defenses to other divorce grounds.

When the divorce action is for any of the grounds provided in AS 25.24.050 (4)-(6), the defense of procurement or that the defendant has been expressly forgiven may be made. When the divorce action is for the ground provided in AS 25.24.050 (3), the defense of procurement or that the defendant has been expressly forgiven or that the action was not brought within two years after conviction may be made.

History. (§ 12.12 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.190. Renumbered in 1983.

Collateral references. —

Condonation of cruel treatment as defense to action for divorce or separation, 32 ALR2d 107.

Reconciliation as affecting separation agreement or decree, 35 ALR2d 707; 36 ALR4th 502.

Sec. 25.24.140. Orders during action.

  1. During the pendency of the action, a spouse may, upon application and in appropriate circumstances, be awarded expenses, including
    1. attorney fees and costs that reasonably approximate the actual fees and costs required to prosecute or defend the action; in applying this paragraph, the court shall take appropriate steps to ensure that the award of attorney fees does not contribute to an unnecessary escalation in the litigation;
    2. reasonable spousal maintenance, including medical expenses; and
    3. reasonable support for minor children in the care of the spouse and reasonable support for unmarried 18-year-old children of the marriage who are actively pursuing a high school diploma or an equivalent level of technical or vocational training and living as dependents with the spouse or designee of the spouse, if there is a legal obligation of the other spouse to provide support.
  2. During the pendency of the action, upon application, a spouse is entitled to necessary protective orders, including orders
    1. providing for the freedom of each spouse from the control of the other spouse;
    2. for protection under AS 18.66.100 18.66.180 ;
    3. directing one spouse to vacate the marital residence or the home of the other spouse;
    4. restraining a spouse from communicating directly or indirectly with the other spouse;
    5. restraining a spouse from entering a propelled vehicle in the possession of or occupied by the other spouse; and
    6. prohibiting a spouse from disposing of the property of either spouse or marital property without the permission of the other spouse or a court order.
  3. Except as provided in (d) and (e) of this section, after a hearing, if both parties agree, the court may also order that the parties engage in personal or family counseling or mediation. In the order, the court shall provide for the payment of the costs of the counseling or mediation.
  4. The court may not order or refer parties to mediation or family counseling under (c) of this section if a protective order issued or filed under AS 18.66.100 18.66.180 is in effect. The court may not order or refer parties to mediation or family counseling if a party objects on the grounds that domestic violence has occurred between the parties unless the court finds that the conditions of (e)(1) — (3) of this section are met. If the court proposes or suggests mediation under this subsection,
    1. mediation may not occur unless the victim of the alleged domestic violence agrees to the mediation; and
    2. the court shall advise the parties that each party has the right to not agree to mediation and that the decision of each party will not bias other decisions by the court.
  5. A mediator or family counselor who receives a referral or order from a court to conduct mediation under (c) of this section shall evaluate whether domestic violence has occurred between the parties. A mediator or family counselor may not engage in mediation when either party has committed a crime involving domestic violence unless
    1. mediation or family counseling is requested by the victim of the alleged domestic violence, or proposed by the court and agreed to by the victim;
    2. mediation or family counseling is provided by a mediator or family counselor who is trained in domestic violence in a manner that protects the safety of the victim and any household member, taking into account the results of an assessment of the potential danger posed by the perpetrator and the risk of harm to the victim; and
    3. the victim is permitted to have in attendance a person of the victim’s choice, including an attorney.

History. (§ 12.13 ch 101 SLA 1962; am § 71 ch 127 SLA 1974; am § 5 ch 130 SLA 1990; am § 2 ch 117 SLA 1992; am §§ 45 — 47 ch 64 SLA 1996)

Revisor’s notes. —

Formerly AS 09.55.200. Renumbered in 1983.

Cross references. —

For duty of parent and child to maintain each other, see AS 25.20.030 ; for other restraining orders relating to domestic violence, see AS 18.66.100 18.66.130 .

Notes to Decisions

Analysis

I.General Consideration

Applicability. —

Based upon the father’s own concession that the facts in the case did not resemble a divorce, the divorce exception of this section did not apply; accordingly, award of fees to the mother pursuant to Alaska R. Civ. P. 82(b)(2) was not in error. McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Determination of support for adult child. —

Rules of Civil Procedure 90.3 applied to the determination of required support during the period an unmarried 18-year-child was pursuing a high school diploma, as mandated by paragraph (a)(3). Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).

Physicians’ bills for treating child. —

While a divorce suit was pending, an order of the court directing the husband to pay the wife a specified sum for the purpose of enabling her to satisfy the claims of physicians for their professional services in attending the couple’s child was justified by the second subdivision of this section. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

Retroactive modification of child support. —

The superior court abused its discretion when it retroactively modified the interim child support order in the absence of extraordinary circumstances. Jones v. Jones, 666 P.2d 1031 (Alaska 1983).

Bad faith conduct. —

Superior court’s assessment of the parties’ relative economic circumstances had to be reconsidered on demand, but the court correctly considered the husband’s greater income and income-earning capacity; the superior court did not err in increasing the attorney’s fee award based on the husband’s bad-faith conduct and vexatious litigation. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

Order issued without hearing. —

While this section does not require a hearing before an order is issued, a father was afforded notice of the mother’s reasons for seeking a protective order and a full opportunity to question her about the basis for the sought-after order. Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Prohibiting contact with former spouse. —

The superior court has jurisdiction, where appropriate, to enter a “no-contact” order prohibiting a party from making contact with his former spouse, in the context of a final decree of divorce. Siggelkow v. State, 731 P.2d 57 (Alaska 1987).

Prenuptial agreements. —

Signed prenuptial agreement did not preclude the trial court from awarding interim support, and its order requiring the husband to pay $5,000 per month in interim spousal support for 17 months was reasonable. Beal v. Beal, 88 P.3d 104 (Alaska 2004).

Interim spousal support award affirmed. —

Court's decision to award $5,000 a month in interim spousal support and not to credit the ex-husband for alleged overpayments of support was not an abuse of discretion because the court took into account the parties' needs and ability to pay, crafted its award to preserve - and ultimately sell - the marital home, and provided for the parties' reasonable and necessary living expenses during the pendency of the divorce; the ex-wife's $4,000 maintenance number included work needed to make the marital house marketable, utility costs, and support for her while working to maintain the property; and the husband acknowledged that making improvements to the house would cost more than merely maintaining the condition of the property. Brennan v. Brennan, 425 P.3d 99 (Alaska 2018).

Factors to consider in awarding interim spousal maintenance. —

An award of interim maintenance provides for reasonable and necessary living expenses while divorce litigation is pending and insures that neither spouse is disadvantaged in presenting claims. The primary factors to be considered in awarding interim spousal maintenance are the relative economic circumstances and needs of the parties, and the ability to pay the maintenance. Johnson v. Johnson, 836 P.2d 930 (Alaska 1992).

Specific findings required for interim spousal maintenance. —

Where record contained no findings in support of the interim spousal maintenance order entered by trial court judge, award was vacated and the issue remanded for specific findings. Johnson v. Johnson, 836 P.2d 930 (Alaska 1992).

Modification of interim spousal support orders. —

Because the trial court derived its authority to enter its interim order of spousal support under paragraph (a)(2), and given the inherently provisional nature of interim orders and the fact that subsection (a) does not prohibit modification, the discretionary regime set up by this statutory system provides the trial court with the discretion to modify interim spousal support orders. Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).

Interim award offset against final distribution of marital estate. —

Trial court correctly offset a wife’s interim support and attorney fees awards from her portion of the marital estate; the wife had long been employed, retained significant earning capacity, and had substantial assets. Hanson v. Hanson, 125 P.3d 299 (Alaska 2005).

Court’s power to compel sale of property. —

Although the trial court has the authority to compel the sale of a divorcing couple’s property, this authority should be used sparingly; where no pressing reason exists to mandate a sale, court should rescind the transaction, and all parties, including the buyers, should be returned to their original positions. Watega v. Watega, 143 P.3d 658 (Alaska 2006).

Trial court’s order requiring the sale of the marital home prior to the final property decision was not supported by adequate findings; because the trial court made no findings and did not set out the calculations that led it to conclude that an interim sale was necessary, the Alaska Supreme Court could only guess as to why the court concluded that the pre-judgment sale of the residence would benefit the parties; and without the benefit of such findings the supreme court could not determine whether the exceptional circumstances required were present. Husseini v. Husseini, 230 P.3d 682 (Alaska 2010).

It was not error to grant a mother's motion for the pre-trial sale of a marital home because (1) the father was collaterally estopped from denying the father's conviction for indecent exposure to the parties' child, (2) no party lived in the home, and (3) there was no evidence that the mother would sell the home for an unreasonably low price. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

It was not error to grant a mother's motion for the pre-trial sale of a marital home because (1) the father was collaterally estopped from denying the father's conviction for indecent exposure to the parties' child, (2) no party lived in the home, and (3) there was no evidence that the mother would sell the home for an unreasonably low price. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Applied in

Olsen v. Olsen, 5 Alaska 459 (D. Alaska 1916); Rostel v. Rostel, 622 P.2d 429 (Alaska 1981); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981); Siggelkow v. Siggelkow, 643 P.2d 985 (Alaska 1982).

Quoted in

Lovell v. Lovell, 645 P.2d 151 (Alaska 1982); Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); Lewis v. Lewis, 785 P.2d 550 (Alaska 1990); S.L. v. J.H., 883 P.2d 984 (Alaska 1994).

Cited in

Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983); Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); L.L.M. v. P.M., 754 P.2d 262 (Alaska 1988); Brotherton v. Brotherton, 941 P.2d 1241 (Alaska 1997); Gallant v. Gallant, 945 P.2d 795 (Alaska 1997); Sanders v. Barth, 12 P.3d 766 (Alaska 2000); Fleegel v. Estate of Boyles, 61 P.3d 1267 (Alaska 2002); Edelman v. Edelman, 61 P.3d 1 (Alaska 2002); Morris v. Horn, 219 P.3d 198 (Alaska 2009); Collier v. Harris, 261 P.3d 397 (Alaska 2011); Martin v. Martin, 303 P.3d 421 (Alaska 2013).

II.Attorney Fees and Costs

Court’s power to compel sale of property. —

On remand from correction of two property division errors in a divorce case, it was proper to treat a motion for attorney’s fees as being governed by the “divorce exception” and AS 25.24.140(a)(1) , not Alaska R. Civ. P. 82. Johnson v. Johnson, 239 P.3d 393 (Alaska 2010).

Discretion of trial court. —

Whether to make any award pursuant to subsection (a)(1) is committed to the sound discretion of the trial court. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Finding that a wife’s litigation strategy was unreasonable did not preclude the superior court from awarding her attorney fees and costs under paragraph (a)(1). Because the husband did not show that the wife’s conduct met the standard for vexatiousness, the superior court did not abuse its discretion in awarding fees based on the relative economic positions of the parties. McGrady v. McGrady, — P.3d — (Alaska Mar. 20, 2013), (memorandum opinion).

Proper award. —

Wife's attorney's fee award was not plain error because, (1) despite not specifically finding the parties economic circumstances when making the award, the court was fully aware of the parties' economic situations, which the court was not required to repeat, (2) the divorce exception did not apply to fee awards in post-settlement enforcement actions, and (3) the court's inherent equitable power to award fees in the interests of justice was properly exercised, despite a settlement agreement's provision requiring each party to pay his or her own attorney's fees, as a husband's filing of incomplete and inaccurate orders resulted in significant attorney's fees and costs for the wife, so that failing to require him to pay her reasonable fees would not have adequately protected the interests of justice. Pollard v. Pollard, — P.3d — (Alaska July 1, 2020) (memorandum decision).

In awarding attorney’s fees the court is limited to making an award to enable the other spouse to prosecute or defend “the action.” Cooper v. State, 638 P.2d 174 (Alaska 1981).

Paragraph (a)(1) does not apply to attorney’s fees on appeal. Hilliker v. Hilliker, 768 P.2d 115 (Alaska 1988).

Lesser earning spouse required to pay own attorney’s fees. —

Assuming that a husband possessed greater financial resources and greater earning capabilities, the wife’s resources and capabilities were sufficient enough that a court could reasonably expect her to pay her own attorney’s fees; and the Alaska supreme court affirmed the trial court’s order requiring the wife to do so where the wife had training in landscape architecture and experience in drafting, and there was testimony that those skills could earn her $18,000—$20,000 a year. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985); Davila v. Davila, 908 P.2d 1027 (Alaska 1995).

The court is only authorized to make an allowance for future expenses of the suit. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

And cannot require husband to pay additional amount borrowed by wife for court costs. —

Where the court made an order directing the husband to pay the wife a specific amount for necessary expenses she might incur in preparation of her defense and the wife, without making further application to the court, borrowed money to cover additional costs, it was error to require the husband to pay this additional amount. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

Legislative intent that attorney’s fees be allowable regardless of prevailing party. —

Paragraph (a)(1) of this section shows a legislative intent that attorney’s fees be allowable to the wife in a divorce action regardless of who is the prevailing party. Houger v. Houger, 449 P.2d 766 (Alaska 1969) (decided prior to 1990 amendment).

The fact that neither party prevailed is of no relevance to the trial court’s determination regarding award of attorney’s fees. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978). See also Cooke v. Cooke, 625 P.2d 291 (Alaska 1981).

The “prevailing party” rule, used for determination of awards of attorney’s fees under Civ. R. 82, is not applicable to awards of fees in divorce actions. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

In divorce or dissolution actions, attorney’s fees are not to be awarded solely on the basis of which party is regarded as the prevailing party. Cooper v. State, 638 P.2d 174 (Alaska 1981).

The parties’ relative economic situations and earning powers are relevant factors to be weighed in determining whether to order payment pursuant to paragraph (a)(1). Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981); Cooper v. State, 638 P.2d 174 (Alaska 1981).

Costs and fee awards in a divorce are not to be based on the prevailing party concept, but primarily on the relative economic situations and earning powers of the parties. Cooke v. Cooke, 625 P.2d 291 (Alaska 1981).

The general rule with regard to fees in a divorce case is that the court should consider the economic situation and earning power of each party: If the parties are in comparable economic situations, they should bear their own costs and fees and, generally, a court will award costs and fees only to the economically disadvantaged divorce litigant. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

It was not an abuse of discretion to award a former wife interim attorney’s fees to litigate property and debt issues where there was a vast disparity in the parties’ annual income. Hopper v. Hopper, 171 P.3d 124 (Alaska 2007).

In litigation concerning child custody and support, award of attorney fees to the child’s mother under this section was proper, even though the mother and father were never married, because it was a “divorce-like” action and the award ensured that the parties had the means to litigate on a fairly equal plane, given the vast financial disparity between the parties, as well as the reasonableness of the requested fees. Eggener v. Wee, — P.3d — (Alaska Mar. 12, 2010), (memorandum opinion).

But are not the only permissible consideration. —

The relative economic standing of the parties is only a relevant consideration to the decision to award fees; it is not the only permissible consideration. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Factors that are reasonable for the trial court to consider in determining whether to award fees are: (1) that an equal amount of fees had been expended by the parties; (2) that an equal amount of time and effort had been expended; and (3) that the property had been divided equally. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Cooper v. State, 638 P.2d 174 (Alaska 1981).

Awarding a wife full costs and attorney fees in a divorce action was an abuse of discretion because the court did not identify the nature and amount of the increased litigation costs the husband’s vexatious behavior caused. Adam M. v. Christina B., — P.3d — (Alaska June 5, 2013), (memorandum opinion).

Discretion of court in child custody dispute. —

When the father filed a complaint to establish custody over a foster child that the mother adopted, the superior court did not abuse its discretion when it ordered him to pay the mother interim attorney’s fees even though the parties were not legally married. The court reduced its original award of interim fees from $10,000 to $5,000, finding the award justified because the father had a greater income and occupied the home — the parties’ largest and only significant equity — throughout the action. Osterkamp v. Stiles, 235 P.3d 178 (Alaska 2010).

Effect of one party’s misconduct on award. —

One party’s misconduct does not authorize the court to disregard the relative economic situations and earning powers of the parties. In making an increased fee award, the court must first determine what fee award would be appropriate under the general rule, and only then increase the award to account for a party’s misconduct. Failure to follow this two-step process constitutes an abuse of discretion. Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991).

The court must make explicit findings of bad faith or vexatious conduct and clearly explain its reasons for deviating from the general rule. When the court finds that one spouse’s misconduct has unnecessarily increased the other spouse’s costs, the court must identify the nature and amount of these increased costs. Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991).

Mere evasiveness in responding, contentiousness over difficult issues, or delay in completing testimony do not, in themselves, constitute bad faith or vexatious conduct. These are by-products of the adversarial system itself. Conduct justifying an increased award must be such that the parties are prevented from litigating the action on an equal plane. Kowalski v. Kowalski, 806 P.2d 1368 (Alaska 1991).

Where the court concluded that, based on the parties’ relative economic situations and earning powers, the parties should each bear their own attorney’s fees, but further found that the husband’s vexatious conduct caused a $125,000 increase in fees, it followed the proper standard in awarding that amount in favor of the wife. Wright v. Wright, 904 P.2d 403 (Alaska 1995).

Because the parties did not have comparable economic situations, and the husband’s financial situation was more secure than the wife’s, it was not an abuse of discretion to award substantial attorney’s fees to the wife and, even though the wife had engaged in vexatious litigation conduct, her acts did not require complete denial of attorney’s fees. Beard v. Beard, 947 P.2d 831 (Alaska 1997).

Trial court’s findings that its order dividing property compensated for the disparity in the parties’ earning capacity and left them with comparable ability to litigate their divorce action, that both parties needlessly increased litigation costs and were completely uncooperative throughout the action, and that neither party had clean hands was sufficient to support its decision denying the wife’s request for attorney’s fees. Beal v. Beal, 88 P.3d 104 (Alaska 2004).

Wife was properly awarded legal fees based on the husband’s conduct during divorce proceedings, where the husband engaged in passive-aggressive behavior, which included incidents of domestic violence. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Good faith. —

As this section does not have a “good faith” requirement, the trial court did not have to make a finding as to good faith before ordering the father to pay the mother’s attorneys’ fees and the costs associated with the custody investigator. Koller v. Reft, 71 P.3d 800 (Alaska 2003).

Attorney fee agreement was not a contingency agreement. —

Ex-wife’s attorney fee agreement did not violate Alaska Bar R. 35(d) because payment of fees was not contingent on successful prosecution; rather, it turned on the financial resources of the parties. Hodge v. Sorba, 31 P.3d 1273 (Alaska 2001).

Standard of proof for amount of attorney fees awarded. —

Superior court abused its discretion in awarding a wife enhanced attorney fees without proper documentation and without a clear basis for the award because it based the award on the unsupported assertion of fees in the wife’s post-trial brief. Urban v. Urban, 314 P.3d 513 (Alaska 2013).

Deposit to cover costs of wife’s appeal. —

An order of court made after the entry of the final decree requiring the husband, in the event of an appeal by the wife, to deposit in the registry of the court or to give security for the payment of costs on such appeal, was proper. Leak v. Leak, 156 F. 474, 2 Alaska Fed. 815 (9th Cir. Alaska 1907).

Poverty of a husband is no defense to an application for temporary alimony where the action for divorce is brought by him, because he should not be permitted to prosecute an action if he cannot furnish the wife with the means necessary to make her defense. Van Atta v. Van Atta, 6 Alaska 266 (D. Alaska 1920).

Suit money is allowed when wife’s statement of need is only contradicted by husband’s affidavit. —

Where a wife states on oath that she has no means, and there is no other proof, except the counteraffidavit of the husband to the effect that she has means, suit money will be allowed to the wife. Van Atta v. Van Atta, 6 Alaska 266 (D. Alaska 1920).

Wife to pay own attorney’s fees. —

Assuming that husband possessed greater financial resources and greater earning capabilities, the wife’s resources and capabilities were sufficient that a court could reasonably expect her to pay her own attorney’s fees; the Alaska supreme court affirmed the trial court’s order requiring the wife to do so where the wife had training in landscape architecture and experience in drafting and there was testimony that those skills could earn her $18,000—$20,000 a year. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Attorney fees to attorney-litigant. —

If a court wishes to award attorney’s fees for an attorney-litigant’s time it should do so only after making a clear segregation of his compensable time, expended as an attorney active in the litigation, and his noncompensable time, expended as client. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

Award as condition of voluntary dismissal of action. —

The superior court clearly had discretion to award costs and attorney’s fees as a condition of a voluntary dismissal of an action to modify a child custody agreement. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

Award of costs in suit for modification. —

In an action seeking modification of property division agreement previously incorporated in a divorce decree, when a party seeks modification of an arrearages judgment and of the property division in the divorce decree, the award of costs and attorney’s fees is appropriately made under Civ. R. 82. O'Link v. O'Link, 632 P.2d 225 (Alaska 1981).

Waiver. —

Court did not abuse its discretion in custody case by declining to infer that mother, when she agreed to settle the issue of custody without simultaneously securing an agreement on the issue of attorney’s fees, thereby meant to waive her entitlement to fees, and award of fees was upheld. Coleman v. Coleman, 968 P.2d 570 (Alaska 1998).

Evidence insufficient to award attorney’s fees. —

Award of $7,000 in attorney’s fees to the wife was reversed where the husband’s act of taking his son out of state without notifying the wife was insufficient evidence that he undertook a modification action willfully and without just excuse. Kessler v. Kessler, 827 P.2d 1119 (Alaska 1992).

Award of $200 in attorney’s fees held clearly inadequate. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972).

Proper award. —

The court did not abuse its discretion in awarding attorney fees to the wife based on findings that the husband’s earning power and economic status were far superior to hers. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

In a dissolution of marriage case, the court did not err in its award of attorney’s fees where the wife sold a marital asset, receiving $14,500 in cash plus a replacement car worth $2,495 to pay attorney’s fees, and she did not inform the husband of the sale, nor did she split the proceeds with him. Because the trial court found that the sale violated the standing order, it attributed the difference between the fair market value and the actual proceeds from the sale to the wife. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

When modifying a divorce decree, a trial court did not err in awarding attorney fees to the wife because the husband’s delay in paying the wife for her share of the equity in the marital home unnecessarily increased her attorney fees. Worland v. Worland, 240 P.3d 825 (Alaska 2010).

Improper award. —

Superior court erred in awarding mother her costs and attorney’s fees in a custody proceeding where the costs and fees were carried over from a related child-in-need-of-aid proceeding. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Where the parties were equally economically situated, the trial court erred in ordering the wife to pay a portion of the husband’s attorney fees simply because the husband spent more resources preparing his case than the wife did preparing hers. Sanders v. Sanders, 902 P.2d 310 (Alaska 1995).

Attorney’s fees were not appropriate in a divorce proceeding where the estate was large, both parties had received income-producing properties, and each had sufficient liquidity. Harrower v. Harrower, 71 P.3d 854 (Alaska 2003).

Collateral references. —

Misconduct or fault of wife as affecting right to temporary alimony, 2 ALR2d 307.

Necessity and sufficiency of notice and hearing as to allowance of suit money or counsel fees in divorce or other marital action, 10 ALR3d 280.

Wife’s possession of independent means as affecting her right to alimony pendente lite, 60 ALR3d 728.

Wife’s possession of independent means as affecting her right to child support pendente lite, 60 ALR3d 832.

Excessiveness or adequacy of money awarded as temporary alimony, 26 ALR4th 1218.

Right to credit against child support arrearages for time child lived in custody of noncustodial parent, other than for visitation, where custodial parent’s approval was not in issue or was disputed by parties, 112 ALR5th 185.

Sec. 25.24.150. Judgments for custody; supervised visitation.

  1. In an action for divorce or for legal separation, for placement of a child when one or both parents have died, or as part of a child-in-need-of-aid proceeding for a child in state custody under AS 47.10, the court may, if it has jurisdiction under AS 25.30.300 25.30.320 , and is an appropriate forum under AS 25.30.350 and 25.30.360 , during the pendency of the action, or at the final hearing or at any time thereafter during the minority of a child of the marriage, make, modify, or vacate an order for the custody of or visitation with the minor child that may seem necessary or proper, including an order that provides for visitation by a grandparent or other person if that is in the best interests of the child. The court shall hear custody proceedings related to a child in state custody under AS 47.10 as part of the child-in-need-of-aid proceedings, as provided under AS 47.10.113 , unless notice is provided to all parties to the child-in-need-of-aid proceedings and no party objects to hearing the custody proceedings in another appropriate forum.
  2. If a guardian ad litem for a child is appointed, the appointment shall be made under the terms of AS 25.24.310(c) .
  3. 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.
  4. In awarding custody the court may consider only those facts that directly affect the well-being of the child.
  5. Notwithstanding the provisions of (d) of this section, in awarding custody the court shall comply with the provisions of 25 U.S.C. 1901 — 1963 (P.L. 95-608, the Indian Child Welfare Act of 1978).
  6. If the issue of child custody is before the court at the time it issues a judgment under AS 25.24.160 , the court shall concurrently issue a judgment for custody under this section unless, subject to AS 25.24.155 , the court delays the custody decision for a later time.
  7. There is a rebuttable presumption that a parent who has a history of perpetrating domestic violence against the other parent, a child, or a domestic living partner may not be awarded sole legal custody, sole physical custody, joint legal custody, or joint physical custody of a child.
  8. A parent has a history of perpetrating domestic violence under (g) of this section if the court finds that, during one incident of domestic violence, the parent caused serious physical injury or the court finds that the parent has engaged in more than one incident of domestic violence. The presumption may be overcome by a preponderance of the evidence that the perpetrating parent has successfully completed an intervention program for batterers, where reasonably available, that the parent does not engage in substance abuse, and that the best interests of the child require that parent’s participation as a custodial parent because the other parent is absent, suffers from a diagnosed mental illness that affects parenting abilities, or engages in substance abuse that affects parenting abilities, or because of other circumstances that affect the best interests of the child.
  9. If the court finds that both parents have a history of perpetrating domestic violence under (g) of this section, the court shall either
    1. award sole legal and physical custody to the parent who is less likely to continue to perpetrate the violence and require that the custodial parent complete a treatment program; or
    2. if necessary to protect the welfare of the child, award sole legal or physical custody, or both, to a suitable third person if the person would not allow access to a violent parent except as ordered by the court.
  10. If the court finds that a parent has a history of perpetrating domestic violence under (g) of this section, the court shall allow only supervised visitation by that parent with the child, conditioned on that parent’s participating in and successfully completing an intervention program for batterers, and a parenting education program, where reasonably available, except that the court may allow unsupervised visitation if it is shown by a preponderance of the evidence that the violent parent has completed a substance abuse treatment program if the court considers it appropriate, is not abusing alcohol or psychoactive drugs, does not pose a danger of mental or physical harm to the child, and unsupervised visitation is in the child’s best interests.
  11. The fact that an abused parent suffers from the effects of the abuse does not constitute a basis for denying custody to the abused parent unless the court finds that the effects of the domestic violence are so severe that they render the parent unable to safely parent the child.
  12. Except as provided in AS 25.20.095 and 25.20.110 , a court may not consider a parent’s activation to military service and deployment in determining the best interest of the child under (c) of this section. In this subsection, “deployment” has the meaning given in AS 25.20.095 .

History. (§ 1 ch 160 SLA 1968; am § 1 ch 167 SLA 1975; am § 2 ch 61 SLA 1977; am § 1 ch 63 SLA 1977; am § 1 ch 15 SLA 1982; am §§ 2, 3 ch 88 SLA 1982; am § 2 ch 52 SLA 1989; am § 1 ch 76 SLA 1991; am § 1 ch 133 SLA 1998; am §§ 4, 5 ch 111 SLA 2004; am § 3 ch 44 SLA 2010; am § 7 ch 6 4SSLA 2016)

Revisor's notes. —

Formerly AS 09.55.205. Renumbered in 1983.

Cross references. —

For action for failure to permit visitation, see AS 25.20.140 ; for grandparents’ visitation rights, see AS 25.20.065 ; for effect of the enactment of subsection (f) on Rule 54(b), Alaska Rules of Civil Procedure, see § 5, ch. 76, SLA 1991 in the Temporary and Special Acts.

Effect of amendments. —

The 2010 amendment, effective June 5, 2010, added subsection ( l ).

The 2016 amendment, effective January 1, 2017, in (a), in the first sentence, inserted "or as a part of a child-in-need-of-aid proceeding for a child in state custody under AS 47.10" following "both parents have died,", added the last sentence.

Editor's notes. —

Under sec. 18, ch. 6, 4SSLA 2016, the 2016 amendment to subsection (a) applies "to proceedings for adoption or legal guardianship of a child in state custody under AS 47.10 filed on or after January 1, 2017."

Notes to Decisions

Analysis

I.General Consideration

Annotator's notes. —

A number of cases cited in the notes below were decided under the former custody provisions of AS 09.55.210.

Constitutionality of section in specifying “religious needs” as consideration. —

This section in specifying that the “religious needs” of the child may be considered in awarding custody, is not unconstitutional on its face. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Jurisdiction. —

District court should not have ceded its jurisdiction to Texas based on a finding that evidence about the children's current status was located there; trial court minimized the importance of protecting the children from the father's alleged domestic violence and the evidence required to resolve domestic violence and Indian Child Welfare Act issues. Inter alia, Alaska law has a presumption against awarding custody to a parent who was the perpetrator of domestic violence, and evidence relating to social and cultural standards, as well as testimony from a qualified expert, was located in Alaska. Rice v. McDonald, 390 P.3d 1133 (Alaska 2017).

Right to counsel. —

The due process clause of the Alaska Constitution guarantees an indigent parent the right to court-appointed counsel in a private child custody proceeding in which the spouse is represented by Alaska Legal Services Corporation. Flores v. Flores, 598 P.2d 893 (Alaska 1979).

Best interest finding. —

Superior court did not abuse its discretion in finding that an alternating week custody schedule was not in the best interests of the children because it considered the pertinent factors; even though the superior court did not cite the statute, its oral findings demonstrated that it considered several of the statutory best interest factors, and its made clear that it considered how well the children were doing in the current custody arrangement. Trout v. Trout, — P.3d — (Alaska June 27, 2018) (memorandum decision).

Superior court did not err in rejecting a mother's proposed week on/week off schedule would not be in the children's best interests because the children were doing well after a difficult adjustment to the divorce; the children's teachers all testified that the children were doing well, and the maternal grandmother thought it best for the children to remain primarily with the father. Trout v. Trout, — P.3d — (Alaska June 27, 2018) (memorandum decision).

Superior court did not abuse its discretion in prioritizing its finding that it would not be in the best interests of the children to move to a week on/week off schedule over accommodating the cost structure of military child care because the new custody schedule extended the mother's weekend visits and provided that those visits would occur on weeks during which she had Fridays off, suggesting that the mother would not need to purchase child care for these weekend visits. Trout v. Trout, — P.3d — (Alaska June 27, 2018) (memorandum decision).

In a case in which the superior court increased the amount of a father's visitation but left primary physical custody with the mother, as well as the right to make final decisions if the parents could not agree on issues of legal custody, the Supreme Court concluded that the superior court did not clearly err in its findings of fact or abuse its discretion in weighing the best interests factors. The father did not persuade the Supreme Court that the superior court overlooked any relevant evidence in its consideration of the stability and continuity factor. Belk v. Belk, — P.3d — (Alaska Mar. 18, 2020) (memorandum decision).

Modification held proper. —

Superior court did not err in modifying custody and the mother's visitation, in requiring her to demonstrate a long-term commitment to sobriety before she could regain shared physical custody of her children, and in concluding that an award of primary physical custody to the father was in the children's best interests because, while the court faulted both parents for their failure to prioritize their children, the mother had more work to do in establishing and maintaining her sobriety before she would be able to meet the children's needs; and the mother's history of alcohol abuse was directly affecting the emotional well-being of the children. Sarah B. v. Edward H., — P.3d — (Alaska Feb. 24, 2021).

Factors considered. —

Superior court’s determination of the daughter’s best interests included a discussion of each of the factors specified in subsection (c) and, given the superior court’s previous assessment and the custody investigator’s conclusion that the daughter had the capacity to express a preference, it was not error for the court to consider the daughter’s preference; reliance on the custody investigator’s findings was not erroneous, and in light of the parents’ inability to communicate or to act appropriately with one another and with professionals involved in the daughter’s care, awarding sole legal custody to the father was not error. Cusack v. Cusack, 202 P.3d 1156 (Alaska 2009).

Superior court erred when it delegated to a mother the authority to require the father to attend an intervention program for batterers as a prerequisite for unsupervised visits; a decision to impose a condition must be made by the court. Misyura v. Misyura, 242 P.3d 1037 (Alaska 2010).

Although a father contended that the superior court failed to consider the mother’s unannounced move to Florida with the child as evidence of the mother’s unwillingness to facilitate and encourage a close and continuing relationship between the father and the child under AS 25.24.150(c)(6) , the superior court did consider this factor, and in fact identified it as one of the most relevant factors in the case. Green v. Parks, 338 P.3d 312 (Alaska 2014).

Substance abuse. —

Superior court's consideration of a father's substance abuse did not constitute an abuse of discretion because while the evidence of the father's substance abuse had no bearing on the best interests factor in subsection (c)(8), the superior court committed no error by considering his methamphetamine use as part of its best interests analysis under subsection (c)(9). Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Only evidence supporting that there was substance abuse by the father was the mother's own allegations; the superior court did not clearly err in finding no substantiated evidence of substance abuse. Mengisteab v. Oates, 425 P.3d 80 (Alaska 2018).

Move motivated by desire to frustrate visitation. —

Superior court did not clearly err in finding that the mother's move was primarily motivated by a desire to frustrate visitation; while she offered several legitimate reasons for her move, she repeatedly changed her plans about when she would leave Alaska, she did not provide contact information or adequate notice of her move to the court, and she did not provide either the court or the father with a forwarding address. Mengisteab v. Oates, 425 P.3d 80 (Alaska 2018).

Symmetrical best interest analysis required.—

Trial court erred in failing to consider the potential consequences to the child both if he were to live in Washington with the mother and if he were to live in Alaska without her, and on remand, the superior court was to conduct a symmetrical best interests analysis. Mengisteab v. Oates, 425 P.3d 80 (Alaska 2018).

Father not entitled to CINA protections. —

State was not involved in this custody dispute case between the parents; by restricting the father to supervised visitation until he took steps necessary to overcome the statutory presumption against custody, the superior court merely followed the law based upon its findings about the father's conduct and he was not entitled to the procedures and protections afforded parents in child in need of aid cases. Loren R. v. Sharnel V., — P.3d — (Alaska July 22, 2020) (memorandum decision).

Due Process Rights Not Violated. —

Superior court did not deny a father's his right to due process because the father did not attempt to show how he was prejudiced by the procedural deficiencies, and it was not clear how he could do so; the father was granted an opportunity to ask the mother for any information she had not provided during discovery,and he indicated that the superior court had fully addressed his concerns about the discovery. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Applied in

Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981); Matson v. Matson, 639 P.2d 298 (Alaska 1982); Morel v. Morel, 647 P.2d 605 (Alaska 1982); McClain v. McClain, 716 P.2d 381 (Alaska 1986); Farrell v. Farrell, 819 P.2d 896 (Alaska 1991); Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992); Kessler v. Kessler, 827 P.2d 1119 (Alaska 1992); Harvick v. Harvick, 828 P.2d 769 (Alaska 1992); T.M.C. v. S.A.C., 858 P.2d 315 (Alaska 1993); Carstens v. Carstens, 867 P.2d 805 (Alaska 1994); Duffus v. Duffus, 932 P.2d 777 (Alaska 1997); Borchgrevink v. Borchgrevink, 941 P.2d 132 (Alaska 1997); I.J.D. v. D.R.D., 961 P.2d 425 (Alaska 1998); Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002); Rosenblum v. Perales, 303 P.3d 500 (Alaska 2013).

Quoted in

Houger v. Houger, 449 P.2d 766 (Alaska 1969); Delgado v. Fawcett, 515 P.2d 710 (Alaska 1973); Balchen v. Balchen, 566 P.2d 1324 (Alaska 1977); Chavre v. Chavre, 598 P.2d 81 (Alaska 1979); Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); S.N.E. v. R.L.B., 699 P.2d 875 (Alaska 1985); In re Adoption of S.K.L.H., 204 P.3d 320 (Alaska 2009); McAlpine v. Pacarro, 262 P.3d 622 (Alaska 2011); Scott v. Gaines, — P.3d — (Alaska June 14, 2017); Ruerup v. Ruerup, 408 P.3d 1203 (Alaska 2018); Edna K. v. Jeb S., 467 P.3d 1046 (Alaska 2020).

Edna K. v. Jeb S., 467 P.3d 1046 (Alaska 2020).

Stated in

L. A. M. v. State, 547 P.2d 827 (Alaska 1976); C.D.M. v. State, 627 P.2d 607 (Alaska 1981); Moeller-Prokosch v. Prokosch, 27 P.3d 314 (Alaska 2001).

Cited in

In re S. D., 549 P.2d 1190 (Alaska 1976); Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979); Layne v. Niles, 632 P.2d 234 (Alaska 1981); Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982); Stone v. Stone, 647 P.2d 582 (Alaska 1982); Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); Buness v. Gillen, 781 P.2d 985 (Alaska 1989); J.F.E. v. J.A.S., 930 P.2d 409 (Alaska 1996); C.R.B. v. C.C., 959 P.2d 375 (Alaska 1998); Vinzant v. Elam, 977 P.2d 84 (Alaska 1999); Glasen v. Glasen, 13 P.3d 719 (Alaska 2000); Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004); Karrie B. v. Catherine J., 181 P.3d 177 (Alaska 2008); Skinner v. Hagberg, 183 P.3d 486 (Alaska 2008); McLane v. Paul, 189 P.3d 1039 (Alaska 2008); Dragseth v. Dragseth, 210 P.3d 1206 (Alaska 2009); Hunter v. Conwell, 219 P.3d 191 (Alaska 2009); Barlow v. Thompson, 221 P.3d 998 (Alaska 2009); Dale H. v. State, 235 P.3d 203 (Alaska 2010); Susan M. v. Paul H., 362 P.3d 460 (Alaska 2015); In re Hannah L., 390 P.3d 1153 (Alaska 2017); Moore v. McGillis, 408 P.3d 1196 (Alaska 2018).

II.Determination of Custody
A.In General

Welfare of children is given paramount consideration. —

In determining the custody of children the trial court should be guided by the rule that the welfare and best interests of the children should be given paramount consideration. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962); Ransier v. Ransier, 414 P.2d 956 (Alaska 1966); Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967); Bass v. Bass, 437 P.2d 324 (Alaska 1968); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970).

The paramount criterion of the welfare and best interests of the child overrides consideration of any factor of technical fault. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

There has been a steady course of legal development whereby the best interests of the child are to be the paramount consideration in custody cases, to the exclusion of other criteria, such as the doctrine that children of tender years will generally be awarded to the mother when other factors are fairly evenly balanced. King v. King, 477 P.2d 356 (Alaska 1970).

The paramount consideration in any custody determination is what appears to be for the best interests of the child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973); Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979); Starkweather v. Curritt, 636 P.2d 1181 (Alaska 1981).

Between parents, custody is to be awarded according to the best interests of the child. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

In sifting and weighing the often emotionally charged and diametrically opposed testimony of the parties, Alaska decisions and Alaska’s positive law require that the trial court’s resolution of custody issues be determined by the paramount criterion of the best interests of the child. Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

The primary goal of the court in awarding custody is to further the best interests of the child, which includes respecting the beliefs of a mature child, whether they be religious or nonreligious. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Where the trial court found that the children’s best interests required that they remain with the mother, the trial court did not abuse its discretion when it allowed the mother to retain custody. Pearson v. Pearson, 5 P.3d 239 (Alaska 2000).

In child custody proceedings, the best interests of the child is the paramount consideration, and the father’s argument that the superior court’s decision was “prejudicial” to him did not provide sufficient grounds for reversing the superior court’s order awarding custody to the mother. R.I. v. C.C., 9 P.3d 274 (Alaska 2000).

Best interests of the child according to the child custody factors listed in subsection (c) do not include a blood-relative placement. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Trial court adequately considered several factors to support its conclusion that awarding the custody of a divorcing couple’s children to the wife was properly within the children’s best interests; the trial court’s finding that supervised visitation with the husband could be authorized after a psychological assessment was appropriate. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Where parents who had joint custody of their daughter disagreed on obtaining a passport for the daughter, the trial court should have taken into account the child’s best interests, which include the opportunity for foreign travel. The mother should have been ordered to consent. Patrawke v. Liebes, 285 P.3d 268 (Alaska 2012).

Superior court properly awarded the parents shared physical and joint legal custody of their children because it was in their children’s best interests where, inter alia, the record was replete with evidence, including the mother’s own admissions, supporting a finding that the mother’s conduct interfered with the children’s reunification counseling and their relationship with their father. Caroline J. v. Theodore J., 354 P.3d 1085 (Alaska 2015).

Court did not err by awarding custody of the children to the father because it considered each of the best interest factors, the superior court held hearings over two days and considered the custody investigator's reports before issuing its custody order, and the record supported each of the determinations that the challenged best interest factors favored the father. Francesca S. v. Shawn K., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Even over claims of parents. —

Where neither parent exhibited any characteristics of a proper person to have the care and control of two little boys, the welfare of the children was made paramount to the claims of either parent. Leak v. Leak, 3 Alaska 164 (D. Alaska 1906), dismissed, 156 F. 473, 2 Alaska Fed. 814 (9th Cir. Alaska 1907).

The best interests of the parent, or detriment to the parent, are not the test. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

All factors to be considered. —

While a court determining custody must always consider each of the statutory factors, it need not refer to all of them in explaining its decision, but need only discuss those factors that it considers actually relevant in light of the evidence presented in the case before it. Park v. Park, 986 P.2d 205 (Alaska 1999).

Where the court’s brief findings did not disclose active consideration of more than one factor, and where there was an indication that it specifically declined to consider at least one factor, not only was effective appellate review precluded but the party not awarded custody was deprived of any reliable means of determining if the court based its custody decision on any factual or legal error, and reversal and remand was required. Park v. Park, 986 P.2d 205 (Alaska 1999).

The trial court did not commit error in considering the manner and circumstances in which mother left the marital home, her lack of contact with the children after she left, and the effect of her conduct on the children. These were not improper factors because the negative impact of the mother’s conduct on the children was pertinent to the best interests of the children and her capability and desire to address their emotional needs. Velasquez v. Velasquez, 38 P.3d 1143 (Alaska 2002).

When one parent who was seeking custody planned to relocate out of state, the trial court had to treat the move as a given and conduct a best-interests-of-the-children analysis as if the parents were in different states; the court had to consider the reasons for the parent’s move and, if those reasons were legitimate, then the trial court could not hold the relocation against the parent who was intending to move, such that the trial court did not apply the correct standard in analyzing the consequences of a relocation by the father. Dick v. Thompson, — P.3d — (Alaska July 30, 2003).

In rejecting the recommendation of the custody investigator’s report, superior court correctly decided that mother’s act in turning children over to another family during the husband’s incarceration showed that she placed the children’s best interests first, rather than demonstrating her inability to care for them. Chase v. Chase, 109 P.3d 942 (Alaska 2005).

Court properly awarded sole custody of two children, and shared custody of a third, to the mother, where she was the primary caretaker, the father was often absent, and the mother showed her involvement in the children’s lives and good parenting skills. Ebertz v. Ebertz, 113 P.3d 643 (Alaska 2005).

Trial court clearly indicated which factors from subsection (c) it considered important in its custody determination. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Trial judge did not fail to consider the required factors when awarding legal custody to the father, as she found relevant the parties’ inability to work together cooperatively, the father’s increased ability to provide for the child’s needs, the concern that the mother’s husband lacked appropriate parenting skills or experience, and the mother’s and husband’s possible use of illegal drugs. Peterson v. Swarthout, 214 P.3d 332 (Alaska 2009).

Superior court did not abuse its discretion by restricting the wife's use of alcohol and other substances while she had custody of the child where the court adequately explained, and the record supported, its findings as to the wife's alcohol use and the risk of violence to the child, neither parent accepted or understood that continued substance use could have exposed the child to harm, and the parents' substance abuse had exacerbated domestic violence and led to incarceration. Moreover, the court not only appropriately considered and weighed the statutory factors most relevant to its custody determination, it awarded custody to the mother based upon its consideration Jill Y. v. Casey Y., 2020 Alas. LEXIS 46 (May 15, 2020).

All domestic violence or child abuse to be considered. —

Appellant argued that the 2012 finding that he sexually abused the mother's son more than once was too non-specific to be a valid finding of a history of perpetrating domestic violence under AS 25.24.150(g) -(j), but this did not significantly advance appellant's argument, as the court is required to take into account any evidence of domestic violence or child abuse, not just whether there is a history of domestic violence, when making decisions about custody and visitation. Robert A. v. Tatiana D., 474 P.3d 651 (Alaska 2020).

Weight accorded domestic violence factor. —

Although a father committed at least two acts of domestic violence during the parties’ marriage, which triggered the statutory presumption against giving him custody, findings that the children were not at risk of harm from the father were supported not only by the testimony of experts who evaluated the parties but also by the wife’s concession that the danger of harm to the children was outweighed by their need to have contact with their father. Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012).

Based on father’s history of domestic violence, the mother was properly awarded sole legal and primary physical custody. Adam M. v. Christina B., — P.3d — (Alaska June 5, 2013), (memorandum opinion).

Superior court did not err in declining to find that a father had committed acts of domestic violence against a mother because it was within the superior court’s discretion to decline to give a protective order collateral estoppel effect, and that the discretion was not abused; the superior court determined that because of the relatively quick dismissal of the order and its role in the custody negotiations, the father had little incentive to litigate it fully. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Although a father challenged the superior court’s finding that there was no evidence of recent, relevant domestic violence, the only evidence of any domestic violence which would favor the father’s position appeared in the “parenting concerns” he shared with the custody investigator, where he alleged that the mother hit him during arguments and threw water on him. But the custody investigator ultimately found no evidence of domestic violence, child abuse, or neglect in either of the proposed custodial households and that there was no other evidence to support the father’s allegation that the mother hit him. Dobson v. Dobson, — P.3d — (Alaska Aug. 6, 2014) (memorandum decision).

Pre-settlement-agreement domestic violence accusations were properly considered by the court in applying AS 25.24.150(g) ’s rebuttable presumption that a parent with a history of domestic violence could not be awarded custody where the court fully explained the legal basis for its decision. Kenneth S. v. Beulah E., — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Award of physical and legal custody of minor children to the mother was appropriate because the superior court did not err when it found that the father had a history of domestic violence and that the mother did not because the court believed testimony of the mother and the mother's witnesses, including an adult daughter, and did not believe the testimony of the father and the father's witnesses. The superior court's determination that the domestic violence presumption applied to the father, but not to the mother, was not clearly erroneous. Frederico A. v. Francisca A., — P.3d — (Alaska Dec. 28, 2016) (memorandum decision).

Stability and continuity. —

The interests of long-term stability and continuity favored the award of primary physical custody to the father. The court gave careful and considered weight to the facts relevant to the stability and continuity factor, including the disruptions in the father’s domestic life, which the court found were likely to be temporary. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Best interest factors were properly considered when awarding custody to a father; the trial court determined that one child was confused by the parents’ relationship and appeared to be psychologically and emotionally traumatized; moreover, the father was better able to meet the physical and emotional needs of the children, and stability weighed towards keeping the children with the father. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Findings on stability and other issues supported. —

Superior court's findings as to the child's needs, stability, and parental substance abuse were not clearly erroneous; the father pointed to no evidence that the mother's pattern of instability affected her parenting, the child spent a majority of his time with the mother, and the court was not required to consider the mother's alleged disruptive relationship history unless it had an effect on her parenting abilities or the child. Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017).

Rebuttable presumption against perpetrator of domestic violence. —

Rebuttable presumption against denial of custody to a parent who has perpetrated domestic violence under subsection (g) may be overcome by means other than completion of an intervention program for batterers. Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012).

Award of custody to a mother was proper. Although there were some issues with mother’s possible propensity for domestic violence, only one act on her part was found to constitute domestic violence. Other incidents, including pinching and throwing objects, occurring over a number of years, were not enough to classify the mother as someone with a history of perpetrating domestic violence. Clark v. Clark, — P.3d — (Alaska Sept. 26, 2012), (memorandum opinion).

Award of sole legal and physical custody of the parties’ children to the mother was appropriate where the father did not overcome the domestic violence presumption in subsection (g); in light of his strong denial of mistreating his children in a manner that resulted in their alienation, he had not dealt with his conduct in a meaningful way. Colin J. v. Susan J., — P.3d — (Alaska May 8, 2013), (memorandum opinion).

In a child custody case, a trial court did not err by failing to apply a domestic violence presumption because it was not clearly erroneous to find that a father did not have a history of domestic violence; both the mother and father gave conflicting accounts of alleged assaults, and courts in both Alaska and Massachusetts expressed doubts about the mother’s credibility regarding alleged incidents of physical or sexual abuse. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

There was only one proven instance of domestic violence by the father, the mother did not prove more than 30 other domestic violence allegations, and she exaggerated carelessly, or simply fabricated claims, reducing the credibility of her allegations. Given this, the father did not have a history of domestic violence and the statutory presumption barring parents with a history of domestic violence from having custody of children did not apply. McAlpine v. Pacarro, — P.3d — (Alaska Oct. 8, 2014)(memorandum decision).

Mother was properly awarded child custody because, inter alia, the father’s actions, including statutory rape of the mother, violation of a domestic violence protection order, and striking another child, triggered the presumption in subsection (g) against awarding the father custody. Thomas G. v. Sonya G., — P.3d — (Alaska June 24, 2015), cert. denied, 577 U.S. 1079, 136 S. Ct. 834, 193 L. Ed. 2d 741 (U.S. 2016)(memorandum decision).

In a child custody case, a remand was appropriate after an award of joint physical custody to both parents because the trial court’s findings were ambiguous as to whether the father committed more than one act of domestic violence in the context of the rebuttable presumption under this statute. Faye H. v. James B., 348 P.3d 876 (Alaska 2015).

Superior court did not err by failing to apply the statutory presumption against custody by the father in making its custody determination as the mother failed to prove her allegations of abuse because, al- though the mother repeatedly alleged that she had been the victim of abuse, she presented scant evidence to prove those allegations, despite the superior court’s repeated efforts to elicit examples of specific conduct that she considered abusive. Kristi N. v. Christopher R. (Alaska Mar. 9, 2016) (memorandum decision).

Father was properly awarded child custody because the mother's domestic violence precluded awarding her custody, based on acts rising to the level of fourth degree assault, consisting of throwing a television remote at the father, causing bruising, and drugging the father with methadone. Kierston R. v. Eugene R., — P.3d — (Alaska Dec. 21, 2016) (memorandum decision).

Award of equal custody clearly falls within the meaning of “joint physical custody” for purposes of this section, and the Alaska Supreme Court cautions courts against using the unsupervised visitation provision to bypass the requirements for allowing custody under the provision related to domestic violence. Jessie R. v. Timothy F., — P.3d — (Alaska Apr. 5, 2017) (memorandum decision).

Because the father had a history of domestic violence, the superior court was required to find that he had rebutted the domestic violence presumption before granting him joint physical custody; because there was no such finding the order was vacated and the case was remanded. Jessie R. v. Timothy F., — P.3d — (Alaska Apr. 5, 2017) (memorandum decision).

Although a husband objected to application of the rebuttable domestic violence presumption because he was surprised by the wife's request to apply the presumption, he could have asked for a continuance to conduct discovery when the wife raised the issue, or he could have filed a timely motion to reopen the evidence following the superior court's application of the presumption against him. Because the husband failed to do any of these things, it was reasonable to find he was not entitled to introduce new evidence over a month after the superior court's decision. Burns-Marshall v. Krogman, 433 P.3d 1121 (Alaska 2018).

Mother was properly granted sole legal and primary physical custody of the parties' child because an Oregon court found multiple acts of domestic violence by the father, and two specific instances of physical violence when the father grabbed the mother by the hair and held her chin, and when he burned her arm by pushing her against a woodstove; other than disagreeing, the father made no effort to show why those findings were clearly erroneous; and it was not a mistake for the superior court to have found that the father - not the mother - was a perpetrator of domestic violence; thus, the father's challenge to the domestic violence presumption was rejected, and he could not be awarded sole or joint legal or physical custody of the child. Louis W. v. Maria G., — P.3d — (Alaska Sept. 26, 2018) (memorandum decision).

Alaska Supreme Court does not read the first condition for overcoming the presumption in subsection (g), successful completion of an intervention program for batterers, as intending to require an empty exercise; the purpose of the presumption is to protect children from potentially adverse custody determinations, specifically to decrease the likelihood that children will be placed in the custodial household where domestic violence exists. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Trial court did not clearly err by finding that the father rebutted the statutory presumption under subsection (g) against awarding him custody; the trial court did not err by relying on evidence that the father had applied for entry to a batterers' program but was found unsuited for it. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Court may consider the nature of the domestic violence when deciding whether the presumption against awarding custody to the perpetrator has been overcome; therefore, the trial court did not err when it considered the seriousness of the father's incidents of domestic violence, and specifically their situational nature, in the context of deciding whether he had overcome the presumption against awarding him custody of the parties' child. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Whether the superior court abused its discretion by refusing to allow a father's counselor to testify as an expert was moot because whether the father was likely to successfully complete the batterers' intervention program was no longer an issue; the only conditions remaining on the father's ability to have unsupervised visitation involved the substance abuse assessment, his compliance, and establishing that he was no longer abusing alcohol, issues not addressed by the counselor. — P.3d —.

Domestic violence factor findings erroneous.—

Superior court's findings relating to domestic violence were clearly erroneous, as neither the best interests statute nor Alaska precedent requires evidence of either separate judicial proceedings or multiple instances of domestic violence to make domestic violence findings in a custody dispute; also, the superior court improperly relied on the statute to define domestic violence, as that statute contains no such definition, instead describing the presumption against awarding custody to a parent with a history of perpetrating domestic violence. Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017).

It was error for the superior court to fail to make detailed findings about alleged incidents of domestic violence by a father when weighing the best interests factors and deciding whether there was a history of domestic violence for purposes of the presumption against awarding custody to the perpetrator because it looked only to whether the mother suffered physical injury or was placed in fear of imminent physical injury, which were not determinative of whether domestic violence occurred. Jennifer L. v. Geoffrey G., — P.3d — (Alaska May 19, 2021) (memorandum decision).

Superior court did not clearly err or abuse its discretion by requiring the husband to complete a substance abuse program before visitation because the record supported the finding that the husband had a history of drug and alcohol use that had negative consequences for him, including promoting a loss of self-control and irrational and controlling behavior. Benjamen J. v. Heather J., — P.3d — (Alaska Apr. 21, 2021) (memorandum decision).

Superior court did not abuse its discretion by requiring a husband to complete a batterers' intervention program before visitation because witness testimony suggested that traditional intervention programs were reasonably available; the husband did not point to meaningful evidence that he actually was unable to attend a specific program, and testimony supported the conclusion that his completion of the batterers' intervention program would be in his children's best interests. Benjamen J. v. Heather J., — P.3d — (Alaska Apr. 21, 2021) (memorandum decision).

Superior court did not clearly err in finding that a husband did not rebut the domestic violence presumption because its findings were adequate each of its relevant factual findings was supported by testimony; the husband did not rebut the presumption because he repeatedly committed acts of domestic violence, his drug use harmed his children, and his therapy was not as valuable as a traditional batterers' intervention program. Benjamen J. v. Heather J., — P.3d — (Alaska Apr. 21, 2021) (memorandum decision).

Domestic violence factor findings erroneous. —

Trial court erred by determining that the April 2015 incident was not an act of domestic violence because the ex-wife's unsuccessful effort to keep the ex-husband from taking her phone could not qualify as the type of mutual combat that could transform the ex-husband's actions from an attempted theft and subsequent assault into disorderly conduct. Heather R. v. Justin L., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Domestic violence factor findings proper. —

Trial court did not err when it found that the November 2016 incident did not constitute an act of domestic violence because its finding that the ex-wife had not proved that the ex-husband had sexually assaulted her was based on its finding that she was not credible, and the court was not left with a definite and firm conviction that the trial cour erred. Heather R. v. Justin L., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Granting custody to a non-party. —

Under AS 25.20.060 and subsection (c), the trial court has discretion to grant custody to a non-party if (1) the non-party consents, (2) the award complies with the requirements in Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004) for overriding the parental preference, (3) the non-party could have intervened in the custody dispute, and (4) the parties to the custody dispute have sufficient notice of the possibility that a non-party will receive custody to satisfy due process. Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).

Under AS 25.20.060 and subsection (c) of this section, where the trial court awarded physical custody to a non-parent over the objections of a parent, and failed to make findings by clear and convincing evidence either that the parent was unfit or that the welfare of the children required the children to remain with the non-parent, the order awarding shared physical custody violated. Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004); Elton H. v. Naomi R., 119 P.3d 969 (Alaska 2005).

Award to grandparents upheld. —

Trial court did not err in awarding the maternal grandmother and the step-grandfather joint legal and primary physical custody of the child, as the mother's husband's anger created an unstable home, the mother was unwilling to recognize the child's special needs and ill-equipped to meet them, and the mother was likely to terminate the child's relationship with his grandparents, to the child's detriment. Dara v. Gish, 404 P.3d 154 (Alaska 2017).

Stepchild as “child of the marriage”. —

Where stepparent has assumed status of in loco parentis, a stepchild is a “child of the marriage” within this section. Carter v. Brodrick, 644 P.2d 850 (Alaska 1982).

Father’s relationship with his stepdaughter could properly be considered as a factor in determining custody of his natural children. Tompkins v. Tompkins, 961 P.2d 419 (Alaska 1998).

Award of custody to father upheld. —

In a child custody dispute, the superior court did not err in awarding custody to a father because the superior court properly considered factors set forth in subsection (c) when it decided the father was better able to foster the child’s relationship with the child’s mother, the father was better able to meet the child’s needs, and the father offered the child continuity based on emotional and geographic stability. Blanton v. Yourkowski, 180 P.3d 948 (Alaska 2008).

In a child custody case, the court did not err in finding that the mother had not proven the father had sexually abused the child; the court weighed testimony of the child’s therapist, noting inconsistencies in the testimony, and it found credible the father’s and his girlfriend’s testimony regarding sexual materials and behavior in their household. Stephanie W. v. Maxwell V., 274 P.3d 1185 (Alaska 2012).

Finding that father in a child custody case was not engaged in selling alcohol and drugs at the father’s home in the state of Washington was not clearly erroneous because proof of that allegation was lacking. Accordingly, it was not clear error for the trial court to award the father sole physical custody of the minor child in Washington, despite evidence that the father did sell alcohol and drugs in Barrow. Hopson v. Hart, — P.3d — (Alaska Sept. 12, 2012) (memorandum decision).

Award of sole legal and primary physical custody of the child to the father was proper where the superior court found that an award of primary physical custody to the mother would stunt the child’s normal develop- mental needs; the child did not express any concern about the father; the child was mature enough that his expressed preference to be with the father was entitled to some weight; and the mother did not prove her allegations of abuse by the father by a preponderance of the evidence as she was unable to provide examples of or details about the father’s alleged abuse to the investigator or during her lengthy testimony. Kristi N. v. Christopher R. (Alaska Mar. 9, 2016) (memorandum decision).

Superior court did not abuse its discretion in awarding the husband primary physical custody of the children where it considered the wife's actions related to the foreclosure of the marital home, credited the husband's testimony as to the children's state after being with the wife, and the husband was in a better position to facilitate contact. Berg v. Berg, — P.3d — (Alaska Aug. 15, 2018) (memorandum decision).

Trial court did not clearly err in finding that it was in the child's best interests to be in the father's sole custody; given its underlying factual findings, which were not clearly erroneous, the court's use of the diagnostic label "parental alienation" to summarize its thoughts on the issue did not show that it abused its discretion, and there was no error in the court's consideration of the mother's "stalking-type behavior" in reaching its custody decision. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Facilitation of relationship between child and other parent. —

Primary physical custody was properly awarded to a father under paragraph (c)(6) because he was more likely to facilitate a relationship between the child and the mother; while he allowed the mother visitation time in addition to court-ordered visitation, she never offered him extra time with the child, and she even shortened his court-ordered visitation. Nancy M. v. John M., 308 P.3d 1130 (Alaska 2013).

In a child custody case, a trial court properly considered the fact that a mother took the children to another state without the father’s consent, and the removal occurred after a court had determined that the mother’s allegations of abuse were unsubstantiated; the facts were relevant in deciding the mother’s willingness to facilitate a relationship between the father and the children. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Superior court’s finding that the mother was more likely to foster an open relationship with the father was not clearly erroneous given the father’s disparaging testimony about the mother. Beals v. Beals, — P.3d — (Alaska Mar. 25, 2015) (memorandum decision).

Application of statutory presumption. —

Because a finding of a history of domestic violence triggers the AS 25.24.150(g) presumption against custody, the superior court's application of the statutory presumption after it found that a father committed multiple acts of domestic violence was proper. Clarence S. v. Samantha S., — P.3d — (Alaska Sept. 23, 2020) (memorandum decision).

Broad discretion. —

The trial court’s duty to provide for the care and custody of minor children in divorce proceedings places a grave responsibility upon the court and at the same time gives it broad discretion. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

The law now vests a very wide discretion in the trial court to determine where custody shall be placed. King v. King, 477 P.2d 356 (Alaska 1970); Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

The trial court is given broad discretion in fashioning suitable visitation rights and support obligations. Curgus v. Curgus, 514 P.2d 647 (Alaska 1973).

Superior court did not clearly err in finding that a father’s substance abuse did not affect the child’s well-being because the evidence on the subject was mixed, and it was up to the superior court to resolve the evidentiary disputes. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

But that discretion is not unlimited. —

Trial courts have wide discretion in determining custody issues, but that discretion is not unlimited. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Standard for custody in section parallels supreme court standard. —

The legislative standard for custody expressed in this section parallels the standard articulated by the supreme court. Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977).

No single factor should be allowed to outweigh all others in analyzing the best interests of a child. In re J.J.J., 718 P.2d 948 (Alaska 1986).

Memorialization of statutory factors. —

Courts are not required to memorialize their findings for each of the statutory factors. Virgin v. Virgin, 990 P.2d 1040 (Alaska 1999).

Where the trial court addressed the issue of the children’s preferences in the context of discussing whether the father’s behavior was manipulative, that consideration reflected the manner and context in which the issue was disputed at trial, and the court did not err in failing to make a separate, explicit finding as to preferences. Virgin v. Virgin, 990 P.2d 1040 (Alaska 1999).

Trial court did not meaningfully review or memorialize the factors considered in its award of child custody; the evidence as to the wishes of the younger children was limited and biased, and the court did not address the merits of several relevant and contested factors, including domestic violence. Thomas v. Thomas, 171 P.3d 98 (Alaska 2007).

Consideration of nonstatutory factors. —

Trial court did not abuse its discretion pursuant to subsection (c) in awarding primary physical custody of the children to father based on the nonstatutory factors of the added stability the children might gain from continuing to live in their family residence and the potential instability they might suffer from being uprooted immediately following the divorce. Evans v. Evans, 869 P.2d 478 (Alaska 1994).

Ability to provide for child. —

Paragraphs (c)(1) and (2) require no more than that the proposed adoptive parents be able to meet the child’s basic needs. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Superior court did not clearly err in finding that couple granted custody of an orphan could provide for the child’s needs where the wife had a home day care business and the husband made about $18.50 per hour at his full-time job. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Evidence the mother presented to show the father’s inability to meet their daughter’s needs was unconvincing, and it was not error to determine that the mother’s confrontational and negative behavior rendered the father the parent better able to meet their daughter’s needs. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

Children should be kept together if possible. —

In determining custody of children consideration should be given to the desirability of keeping the children of the family together so that they may enjoy the normal condition of childhood of growing up together as brothers and sisters. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962); Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967).

Consideration should be given to the desirability of not separating the children unless their welfare clearly requires such a course. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Consideration should be given to the desirability of not separating the children unless their welfare clearly requires such a course. As in other facets of the difficult problems confronting a trial judge in custody matters, there is no hard and fast rule, and the question of whether or not it is necessary to separate children must depend upon the facts and circumstances of each particular case. McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).

The question of whether it is necessary to separate children must depend upon the facts and circumstances of each particular case. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Where the mother relocated with her other children to Arizona, and the child had spent considerable amounts of time away from her sisters due to an interim shared custody arrangement, finding that the separation of a child from her half-sisters was not dispositive in a child custody case was not error. Puddicombe v. Dreka, 167 P.3d 73 (Alaska 2007).

The doctrine of tender years is not an appropriate criterion for determination of the best interests of the child under this section. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).

The “tender years” doctrine was specifically rejected in Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (1978), and the opinion in Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977), in no way revived the doctrine. Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Where the court found both parents to be fit and proper parents, but the father was in a better position to provide for the 7-year-old boy and 5-year-old girl, the court did not abuse its discretion by rejecting the mother’s tender years argument and awarding the father custody of those two children, and awarding custody of a 2 1/2-year-old to the mother until the child reached the age of 5. Harding v. Harding, 377 P.2d 378 (Alaska 1962); Glasgow v. Glasgow, 426 P.2d 617 (Alaska 1967); Bass v. Bass, 437 P.2d 324 (Alaska 1968); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970).

The record supported the father’s argument that the superior court abused its discretion by relying on the tender years doctrine in making its custody determination. The erroneous application of the tender years doctrine was evidenced by court’s comments about the mother-child bond being genetic and biological, and about the mother’s “desperate” love for the child so that she had to take care of him, as opposed to the father’s “appropriate” male love by a person who is not the primary psychological parent. Weinberger v. Weinmeister, 268 P.3d 305 (Alaska 2012).

Preference of child. —

Paragraph (c)(3) requires courts making custody determinations to consider the child’s preference if the child is of sufficient age and capacity to form a preference, and the trial court did not err by giving weight to the 14-year-old child’s well-reasoned preference to live with his father. Valentino v. Cote, 3 P.3d 337 (Alaska 2000).

Superior court was justified in its decision not to give weight to a child’s preference for living with his mother because, although the child was 14 years old, he lacked the emotional maturity for his preference to be credited; the child was able to manipulate his mother, and his need for discipline, which his father provided, was entitled to more weight than his preference to live with his mother. Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008).

A custody decision that provided for alternate week custody for two younger children, and primary custody of the eldest child with the father, was proper. Evidence showed that the eldest child had a better relationship with the father than with the mother, that he still wanted to spend a limited amount of time with his mother, and that his preference was to be with his father. The two younger children both expressed the desire for an alternate week arrangement. The court clearly considered relevant factors in determining custody, and its use of in camera interviews was not error. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).

Mother was properly awarded child custody because, inter alia, the teenage child’s expressed preference to live with the mother was given considerable weight. Thomas G. v. Sonya G., — P.3d — (Alaska June 24, 2015), cert. denied, 577 U.S. 1079, 136 S. Ct. 834, 193 L. Ed. 2d 741 (U.S. 2016)(memorandum decision).

Superior court factored in a child’s preference to live with his mother under the best interest analysis, but did not give it a lot of weight in ordering that the father have custody; the child believed that the separation was harder on the mother and had more freedom with the mother than with the father. The superior court did not substitute findings in a separate custody proceeding for its findings in the present case. Wells v. Barile, 358 P.3d 583 (Alaska 2015).

Superior court did not abuse its discretion by not explicitly considering the children's custody preference given their young ages and the wife's encouragement that they lie to various authorities about the husband's conduct. Schaeffer-Mathis v. Mathis, 407 P.3d 485 (Alaska 2017).

Child's educational needs. —

Superior court did not abuse its discretion in prioritizing a child’s educational needs when making the decision to award custody to the child’s father; evidence showed that the mother was unable to meet the child’s educational needs whereas the child was making progress in school under his father’s care. Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008).

Age of children is only one factor to be considered. —

Although the age of the children in a custody dispute is one factor that may be considered by the trial court in its determination of the best interests of the child, it is only one factor, to be weighed with many others. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Constitutionality of section in specifying “religious needs” as consideration. —

This section in specifying that the “religious needs” of the child may be considered in awarding custody, is not unconstitutional on its face. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

This section is limited to cases where particular religious practices or beliefs pose a substantial threat of or would result in actual physical, emotional, or mental injury to the child or will otherwise have a harmful effect on the child in violation of valid state statutes. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

In addition, the court may consider the actual religious needs of a mature child. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

This section, insofar as it permits a court to consider the “religious needs” of a minor as an aspect of the child’s “best interest,” does not infringe upon constitutionally protected rights. However, the court must make a finding that the child has actual, not presumed, religious needs, and that one parent will be more able to satisfy those needs than the other parent. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

“Actual religious needs”. —

By actual religious needs, the supreme court refers to the expressed preference of a child mature enough to make a choice between a form of religion or the lack of it. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Section not limited to consideration of formal religious needs. —

In order to avoid running afoul of the establishment clause, this section cannot be limited to consideration of the formal religious needs of the child. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Court must retain strict neutrality. —

So long as a court makes findings as to a child’s actual needs respecting religion, the court may consider such needs as one factor in awarding custody. In such consideration the court, however, may not substitute its own preferences, either for or against a particular type of religious observance, but must retain a strict neutrality. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Reliance on parties' religious affiliations held improper. —

The trial court’s reliance on the religious affiliations of the parties, in the absence of a showing of actual religious needs of the child, constitutes the improper use of a criterion. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

The trial court’s reliance in determining custody on findings that the father and his second wife were “devout Protestants” and members of an “organized religious community,” while the mother’s interest in religion was “passive,” was impermissible under the establishment clause of the first amendment, since there was no secular purpose in the trial court’s action, the primary effect of such action was to advance religion, and the action fostered excessive government entanglement with religion. Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Mother's mental health not considered. —

Award of sole legal and primary physical custody of the parties’ child to the mother was not proper where the court did not thoroughly consider and resolve the significant issue of the mother’s mental health; the same judge had found two years earlier that she posed a risk of harm to the child and should not have unsupervised visitation absent a positive psychological examination. John N. v. Desiree N., — P.3d — (Alaska May 8, 2013), (memorandum opinion).

Marital status of parent improperly considered. —

Where trial court factored in the mother’s plan to leave her job and move out of state, relying on her boyfriend for support for herself and the children, the court’s comments about the boyfriend’s lack of commitment to the mother and children, and the potential instability of the relationship, it was evident from the court’s comments that the court relied on the impermissible factor of marital status in awarding custody of the children to the father. The comments went beyond mere evaluation of the mother’s financial stability and ability to provide a stable environment for the children. Livengood v. Livengood, — P.3d — (Alaska Mar. 28, 2012), (memorandum opinion).

Effect of remarriage of one parent. —

Custody awards may not be based on the assumption that a divorced parent who remarries can provide a better home than an otherwise equally competent parent who remains single. West v. West, 21 P.3d 838 (Alaska 2001).

Bicultural situations. —

Where the differing life-styles flowing from two cultures have significance in determining which parent could provide the best possible parent-child relationship, it is inappropriate to decide the custody issue on the basis of cultural assumptions which are not borne out by the record. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

It is not permissible, in a bicultural context, to decide a child’s custody on the hypothesis that it is necessary to facilitate the child’s adjustment to what is believed to be the dominant culture. Such judgments are not relevant to the determination of custody issues. Rather, the focus should be on the fitness of the parent and the parent’s ability to accord the child the most meaningful parent-child relationship. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Tribal court's jurisdiction limited to custody determination. —

Trial court correctly ruled that the issue of child support was never referred to the Native Village of Northway tribal court following the referral of a child custody dispute between the Native Alaskan parties, and that the Alaska Child Support Enforcement Division could enforce the trial court’s child support order. John v. Baker, 125 P.3d 323 (Alaska 2005).

Stability is a relevant factor for the trial court to consider in awarding custody of a child, even though it is not explicitly listed in subsection (c). McDanold v. McDanold, 718 P.2d 467 (Alaska 1986).

Superior court did not abuse its discretion in its reconsideration of the stability factor where the superior court determined on remand that the stability factors favored the mother rather than the father, and thus, the court’s remarks related to the remand instructions were irrelevant. Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014).

Desirability of maintaining continuity. —

Paragraph (c)(5) requires the court to look to the desirability of maintaining the continuity of the care of the children when making decisions regarding child custody. Hamilton v. Hamilton, 42 P.3d 1107 (Alaska 2002).

Relationship with parent and native Alaskan heritage. —

Trial court’s finding in primary physical custody dispute was held proper based on evidence that child was better able to establish a loving and open relationship with the parent to whom custody was awarded, and that Sitka, that parent’s residence, was the better place for the child because of the child’s Native Alaskan heritage. Van Sickle v. McGraw, 134 P.3d 338 (Alaska 2006).

Relocation held legitimate.—

Superior court's finding that the mother's move was legitimate was not clearly erroneous; she was moving closer to family, seeking employment, and providing the child new educational and extracurricular opportunities, and her move was not motivated by a desire to prevent the father from interacting with his child. Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017).

Father moving to Germany. —

Where father was being transferred to Germany, the trial court did not err in concluding that granting custody to mother would provide more stability and continuity for their children. Tompkins v. Tompkins, 961 P.2d 419 (Alaska 1998).

Out-of-state move held appropriate. —

Court properly allowed a mother to retain custody of the children if she completed a planned out-of-state move due to the nature of her graduate program, the availability of family support while she returned to school, and the fact that she had better-than-average parenting abilities. In particular, the father did not seem to appreciate that the children had special needs related to their speech deficits. Veselsky v. Veselsky, 113 P.3d 629 (Alaska 2005).

Mother had primary physical custody and father was awarded visitation. The mother’s wish to move to the Pacific Northwest to be closer to her ailing parents and to find work for her husband was a substantial change in circumstances that required modification of child custody. The older child’s close relationship with her parents, her fear of having to stay in Alaska without her mother, and concern that the child would become depressed if removed from her mother’s custody constituted best interest factors that favored granting custody to the mother. St. Denny v. Hunter, — P.3d — (Alaska Mar. 3, 2010), (memorandum opinion).

Superior court did not err under subsection (c) in awarding primary physical custody to the mother and joint legal custody to both parents because the mother was willing to facilitate a close and continuing relationship between the children and the father; her reasons for relocating to Alaska were legitimate and not primarily motivated by a desire to hinder the father’s visitation. Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013).

Trial court did not err in awarding a mother primary physical custody of the parties' children and in concluding that it was in the children's best interest to relocate with the mother to another state because the court found that the mother had the ability to provide superior emotional stability and had been the children's primary caregiver, that the mother's reason for the move was legitimate, and that the father had the resources to exercise liberal visitation and would continue to be involved in the children's lives. Brett M. v. Amanda M., 445 P.3d 1005 (Alaska 2019).

International travel during visitation. —

Mother’s request to limit a father’s international visitation to countries that had ratified the Hague Convention on the Civil Aspects of International Child Abduction was properly denied where there was no evidence to support the mother’s concern that travel to a non-ratifying country was a threat to the safety and return of the child. Moore v. Moore, 349 P.3d 1076 (Alaska 2015).

Decision aimed at fostering best parent-child relationships possible. —

Where the trial court found that the mother was having difficulty fostering an open relationship with the father, it was not error for the court to find that it was in the best interests of the children to remain in Alaska, with their father having primary custody, if the mother moved to Arizona. Silvan v. Alcina, 105 P.3d 117 (Alaska 2005).

Superior court did not abuse its discretion in determining on remand that the continuing relationship factor favored the father where it determined that the mother had not presented sufficient evidence in support of her allegation that the father manufactured methamphetamine in front of the child to warrant removing the unfounded allegation from consideration in the continuing relationship factor given that the only evidence was the mother’s testimony that she observed a chemical smell on the father’s clothing. Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014).

Parental cooperation. —

Finding that a father was able to encourage the child’s relationship with the mother was proper because the parents’ collaborative history was more probative of their future relationship than the accusations they made against each other in the context of litigation. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Parent's past. —

While a parent’s past is not determinative, it can be considered in evaluating current stability and parenting ability in the awarding of child custody. McDanold v. McDanold, 718 P.2d 467 (Alaska 1986).

Fact of mother’s adulterous relationship is of importance in a child custody case only as it may affect the best interests of the child. Bonjour v. Bonjour, 566 P.2d 667 (Alaska 1977).

Mother’s bearing of children out of wedlock or her instability in terms of relationships should be determinative in a child-custody dispute only where such conduct adversely affects the child or the mother’s parenting abilities. Craig v. McBride, 639 P.2d 303 (Alaska 1982).

Evidence of lifestyle, habits, or character of custody claimant is relevant only to the extent that it may be shown to affect the person’s relationship to the child. Britt v. Britt, 567 P.2d 308 (Alaska 1977), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Protective orders. —

Wife claimed that a trial court erred in not applying subsection (g) before ordering joint legal custody of the couple’s daughter; however, additional determinations needed to be made as to whether the husband had violated a protective order. Parks v. Parks, 214 P.3d 295 (Alaska 2009).

Domestic violence between parents. —

Where there were incidents of domestic violence in a relationship between two unmarried parents who were involved in a custody dispute, the court should have addressed the domestic violence exception contained in this section and the domestic violence provisions and presumption set out in subsections (g)-(i). Puddicombe v. Dreka, 167 P.3d 73 (Alaska 2007).

In making the decision to award primary custody to a child’s father, the superior court was within its discretion in finding that the child was not going to an abusive home and, while no evidence showed that the father was abusive to the child and the evidence tying him to other contemporary instances of abuse was weak, a question still remained whether the father should have been subject to the presumption found in subsection (g); thus, it was plain error for the superior court not to further determine whether the father’s previous acts of domestic violence against his first wife constituted a history of perpetrating domestic violence under subsection (h). Michele M. v. Richard R., 177 P.3d 830 (Alaska 2008).

Trial court did not err in finding a lack of evidence of domestic violence in the proposed custodial household where the father’s girlfriend’s conduct as described in the protective order application and the trial testimony was not assault, custodial interference, or kidnapping, and the finding that there was no history of domestic violence by either party was not clearly erroneous. Jaymot v. Skillings-Donat, 216 P.3d 534 (Alaska 2009).

The definition of “serious physical injury” in Title 11 applies to this section. Parks v. Parks, 214 P.3d 295 (Alaska 2009).

Superior court’s factual findings were sufficient to trigger the presumption against awarding custody to a parent who had a history of perpetrating domestic violence; the mother credibly testified to two incidents of domestic violence, and the father did not rebut the presumption by completing an intervention program for batterers. Misyura v. Misyura, 242 P.3d 1037 (Alaska 2010).

The domestic violence factor in (c)(6) applied in this case where there were mutual acts of violence between the parents, with the mother’s acts being more numerous. The court appropriately considered this factor, and the record supported the finding that there was not a danger of risk or harm to the parents or child, and that both parties matched each other in their weakness at fostering a relationship with the other parent. Weinberger v. Weinmeister, 268 P.3d 305 (Alaska 2012).

Superior court did not clearly err in discounting wife's evidence of domestic violence where the court specifically found that all of the wife's allegations that the husband was physically or emotionally abusive were not credible and indicated that it shared the custody investigator's serious concerns that the wife had instructed one of the children to lie about domestic violence in the home, and the mother pointed to nothing in the record showing the findings to be clearly erroneous. Schaeffer-Mathis v. Mathis, 407 P.3d 485 (Alaska 2017).

Award of joint custody despite evidence of abuse. —

It was error to order joint legal custody and shared physical custody after a finding that the father had a history of domestic violence. The court failed to address this section, which creates a rebuttable presumption against joint legal or physical custody to a parent with a history of domestic violence against the other parent. Wee v. Eggener, 225 P.3d 1120 (Alaska 2010).

Sexual abuse of children. —

Given that the trial court accepted as fact the father’s sexual abuse of his older children, it was an abuse of discretion to find that it was in the child’s best interests to be placed in the custody of the father without ample evidence of his rehabilitation. Horton v. Horton, 519 P.2d 1131 (Alaska 1974).

Excessive dominance by parent. —

Trial court properly awarded custody of daughter to mother, where the record evinced father’s need to dominate and control in relationships as an outstanding personality trait impairing his ability to effectively nurture and raise children. Dingeman v. Dingeman, 865 P.2d 94 (Alaska 1993).

Discipline. —

Finding that a father and a mother were equally able to meet their child’s needs was proper where there was no evidence that the father mischaracterized his disciplinary methods or that his discipline adversely affected his ability to care for the child’s emotional needs or should otherwise weigh against him in the best interests analysis. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Issue preclusion. —

Husband in a divorce matter claimed the trial court erred in limiting visitation based on a prior protective order arising from alleged domestic violence; the doctrine of issue preclusion could not be invoked to establish an act of domestic violence where the domestic violence supporting a prior protective order was stipulated to and not litigated. Morris v. Horn, 219 P.3d 198 (Alaska 2009).

Unique facts of each case to be weighed. —

The legislative intent is that the trial court decide custody matters by weighing the unique facts in each case to determine the best interests of the child. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

Determination of the child’s best interests must turn on a balancing of the unique facts of each case rather than on outmoded presumptions. Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).

The weight to be accorded a child’s preference in custody disputes depends to some extent on the basis and reasons for that preference. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976).

Custody decrees are not subject to modification merely because a child has developed a preference for one parent over the other. But where it would appear that the preferences of the children are of long-standing duration, it was incumbent upon the superior court to hear the children’s testimony regarding the circumstances of their preferences. Once the court has heard such testimony, it is then to determine whether the children’s preferences, when considered with all other relevant factors, are sufficient to warrant the determination that it is in the best interests of the minor children to modify the decree’s custody provisions. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976).

Parental custody is preferable and only to be refused where clearly detrimental to the child. Turner v. Pannick, 540 P.2d 1051 (Alaska 1975); Britt v. Britt, 567 P.2d 308 (Alaska 1977), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

Unless the superior court determines that a parent is unfit, has abandoned the child, or that the welfare of the child requires that a nonparent receive custody, the parent must be awarded custody. Turner v. Pannick, 540 P.2d 1051 (Alaska 1975).

Between a parent and a nonparent, the parent is to be preferred unless placing custody with him or her would be detrimental to the child. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

The parent is entitled to a preference over the grandparents unless it is clearly shown that the parent is unfit for the trust, or that the welfare of the child requires it to be in the custody of the grandparents. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

In Alaska the test applicable to suit by biological parent to regain custody of child from third party is that the parent is entitled to a preference over a nonparent unless it is clearly shown that the parent is unfit for the trust or that the welfare of the child requires it to be in the custody of a third party. Turner v. Pannick, 540 P.2d 1051 (Alaska 1975).

No presumption in favor of person with whom child has most recently and continuously resided. —

While there might be some preference for leaving the child in the custody of the person with whom he has most recently and continuously resided, the supreme court will not establish such a presumption lest it lead to pre-hearing maneuvering for possession of the child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Psychological effects of separation. —

Superior court did not err when it granted custody of a child to its caregivers rather than allowing her grandparents to adopt her where the issue was not merely primary caregiving, but whether removing the child from the primary custody of the people with whom she had spent 21 of her 24 months would be unnecessarily traumatic for her, especially since she had already lost one set of parents; the superior court carefully questioned in voir dire each expert who testified on child psychology about the possible effects on the child of being separated from the caregivers and overruled objections to such questions when asked. Adoption of L.E.K.M., 70 P.3d 1097 (Alaska 2003).

Time spent with parent during appeal of custody order. —

Where one parent obtained custody pursuant to a court order but on appeal the order was vacated and remanded, on remand the trial court could consider the quality and duration of the time the child spent with each parent during the pendency of the appeal in deciding anew the child-custody issue. Craig v. McBride, 639 P.2d 303 (Alaska 1982).

Parent's ability to care for child. —

Superior court did not abuse its discretion in finding that the factor concerning each parent’s ability and desire to meet the children’s needs favored the mother given evidence that the father did not perform tasks when he had the opportunity. Beals v. Beals, — P.3d — (Alaska Mar. 25, 2015).

Superior court did not clearly err in finding that both parents were capable of meeting the children's needs but that the father was more motivated than the mother to focus on the children's needs given the mother's decisions to involve the children in the divorce and take personal vacations during her custodial time. Schaeffer-Mathis v. Mathis, 407 P.3d 485 (Alaska 2017).

Supervised visitation. —

While the superior court could have been more precise in articulating what it expected the father to do in order to remove the requirement for supervised visitation, a solution was for him to obtain a psychological assessment. If the psychologist was unclear about what issues were to be addressed, the father could move for clarification, and if the assessment revealed no mental health issues requiring treatment or counseling, he could move for unsupervised visitation. Given this, the superior court adequately articulated a plan. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

Denial of supervised visitation to a father was appropriate because the superior court repeatedly advised the father, who had a history of domestic violence, that the mother had no obligation to allow visitation until the father provided proof of participation in both a batterers' intervention program and a parenting course. However, the father never completed a batterers' intervention program and at trial admitted that the father was not then participating in one. Frederico A. v. Francisca A., — P.3d — (Alaska Dec. 28, 2016) (memorandum decision).

When determining how “domestic living partner” should be interpreted and applied, when considering whether a parent's visitation should be restricted under AS 25.24.150(j) or to apply a presumption against the parent's custody under AS 25.24.150(g) due to the parent's acts of domestic violence, there is a requirement that the perpetrator and victim lived in the same household, but “lived together” must be given a fairly relaxed meaning. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Trial court's findings on the status of the father's girlfriend as a domestic living partner when ordering the father's supervised visitation due to domestic violence against the girlfriend, consisting of criminal trespass and coercion, were insufficient because (1) the parties had to reside together to be domestic living partners, and (2) the court's findings did not determine when this status began or ended or explain how the status applied when the father was not permitted in the girlfriend's residence. Timothy W. v. Julia M., 403 P.3d 1095 (Alaska 2017).

Shared parental custody between parent and nonparent. —

The policy supporting shared parental custody applies equally when the custody dispute arises between a parent and a nonparent. Carter v. Novotny, 779 P.2d 1195 (Alaska 1989).

Unsupervised visitation by parent with history of abuse. —

While it was error to order joint legal custody and shared physical custody after finding that the father had a history of domestic violence toward the child’s mother, award of unsupervised visitation to the father was proper where the father did not abuse drugs or alcohol and posed no danger of harm to his son. Wee v. Eggener, 225 P.3d 1120 (Alaska 2010).

Visitation conditions upheld. —

Trial court did not abuse its discretion in placing conditions on the mother's visitation; the custody investigator testified she was not making any psychological diagnosis but was drawing on her experience to recommend that the mother seek treatment, and the mother's argument that the investigator was unqualified to recommend a specific type of therapy was conclusory and did not show any abuse of discretion. Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).

Disproportionate weight given to grandparent involvement. —

In this custody modification case, the lower court abused its discretion in assigning disproportionate weight to grandparent involvement as a factor in the father's favor; there was no evidence that the child's contact with her grandparents would be limited while the mother had custody, so it was purely speculative for the lower court to assume that securing grandparent involvement required giving a higher share of custody to the father. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Visitation by grandparents. —

Subsection (a) of this section does not require the trial court to specify why visitation by grandparents is in the best interests of the children. Instead, it merely states that the trial court may award such rights if they are, in fact, in the best interests of the children. Brown v. Brown, 914 P.2d 206 (Alaska 1996).

Power to appoint guardian ad litem. —

In contested custody cases the trial court, in its discretion, is empowered to appoint a guardian ad litem to represent the interests of the minor child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Right to custody hearing. —

A father’s right to a hearing on child custody was not satisfied by a hearing in a domestic violence proceeding at which an award of temporary custody was made, since the hearing was held without notice that permanent custody was at issue and it did not satisfy the hearing requirements for permanent custody modification. Lashbrook v. Lashbrook, 957 P.2d 326 (Alaska 1998).

Oral custody order. —

In a divorce proceeding, the trial court did not violate the father’s due process rights in orally issuing temporary custody orders during a scheduling conference because this section does not include a hearing requirement; precedent did not imply that a one-month temporary custody order largely extending the status quo required notice and a hearing under principles of due process. Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Custody award irrespective of fault. —

The trial judge may make a custody award irrespective of the fault of either party only if it would be manifestly improper to do otherwise. Harding v. Harding, 377 P.2d 378 (Alaska 1962).

Applicability of 2004 amendment. —

The 2004 amendment of this section by SLA 2004, ch. 111, § 6, which created a rebuttable presumption that a parent who has a “history of perpetrating domestic violence” may not be awarded custody of a child, was inapplicable to a child custody case in which the evidence had closed before the effective date of the amendment (July 1, 2004). Van Sickle v. McGraw, 134 P.3d 338 (Alaska 2006).

Admissibility of child welfare report. —

Where the parties acquiesced in the court’s order requesting a report from the Department of Health and Welfare, and there was substantial other evidence to sustain the court’s award of temporary custody to the paternal grandparents, the court did not err in considering the report without admitting it into evidence. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

Parents have standing to challenge determination of child's best interest. —

Whether or not a constitutional due-process right of the child is involved, parents have standing to challenge on appeal a determination of what is in the best interest of the child. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

Change in nature of proceeding. —

Where superior court transformed proceeding which initially was contemplated to be one that would determine the question of child’s interim custody for the impending school year into one that decided the question of permanent custody, proceeding did not afford basic fairness to parent of child. Cushing v. Painter, 666 P.2d 1044 (Alaska 1983).

Custody improperly awarded as sanction against parent. —

Where the court awarded custody of son to father as a sanction against mother without undertaking a best interests of the child analysis, the award had to be vacated and the matter remanded for the purpose of redetermining custody based upon a best interests of the child analysis, with appropriate findings of fact that addressed all relevant criteria of subsection (c). Hakas v. Bergenthal, 843 P.2d 642 (Alaska 1992).

Appellate court reversed a child custody award in favor of the father, because the trial court applied an incorrect standard in reaching its final custody determination and considered one statutory best interests factor to the exclusion of all others. Smith v. Weekley, 73 P.3d 1219 (Alaska 2003).

Shared custody upheld. —

In a dissolution of marriage proceeding, the court did not err by awarding shared custody of the child when he reached his fifth birthday where the father showed a desire to provide for the child and a willingness to change to accommodate the child’s needs. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

In a dissolution of marriage proceeding, because the mother had notice of the proposed custody arrangement and because she had an opportunity to be heard on the matter, the superior court’s order awarding shared custody of her child to the father when the child reached his fifth birthday did not violate the mother’s due process rights. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Superior court neither clearly erred nor abused its discretion when it awarded joint legal and shared physical custody because it weighed conflicting evidence about the father's understanding of sexual abuse allegations, made a credibility determination, and awarded custody based on that determination; given the competing testimony, and absent clear evidence of the timing of the girl's injury, the mother had not established that it occurred during the father's custodial time. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Shared custody rejected. —

Finding that shared physical custody was not in the child’s best interests was proper; the court’s evaluation of the child’s emotional needs was not an abuse of discretion, as the court was free to judge witness credibility and reject the custody investigator’s recommendation in light of a doctor’s testimony. In addition, the superior court found that the factor concerning one’s willingness to allow a close relationship with the other parent favored the mother. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

B.Review

The scope of review in child custody cases is relatively narrow. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

Standard on review. —

In custody questions findings of fact shall not be set aside unless clearly erroneous. Bass v. Bass, 437 P.2d 324 (Alaska 1968).

The supreme court will reverse determinations of the trial court only where it is convinced that the findings of the trial court are clearly erroneous and the record indicates that an abuse of discretion has occurred. King v. King, 477 P.2d 356 (Alaska 1970); Carle v. Carle, 503 P.2d 1050 (Alaska 1972); Horutz v. Horutz, 560 P.2d 397 (Alaska 1977); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

On appeal the task of the supreme court is to ascertain whether or not the trial court misapplied the broad discretion vested in it in regard to determination of custody questions, and whether the court’s findings in respect to custodial issues are clearly erroneous. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

When called upon to decide whether the trial court abused its discretion in applying the best interests test, the supreme court must at times determine whether the trial court assigned “too great a weight to some factors while ignoring others, perhaps by elevating the interests of one of the parties to the dispute above that of the child, perhaps by making a clearly erroneous finding with respect to some material issue.” Horutz v. Horutz, 560 P.2d 397 (Alaska 1977).

The supreme court’s standard of review in custody cases is that of “abuse of discretion.” Findings of fact are reviewed against a “clearly erroneous” standard. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

The supreme court must determine on review “whether that discretion has been abused, perhaps by assigning too great a weight to some factors while ignoring others.” Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978).

The award of custody is committed to the discretion of the trial court and is reversible only for an abuse of that discretion. Wetzler v. Wetzler, 570 P.2d 741 (Alaska 1977).

Review of visitation privileges is based upon the same standard applied in other custody matters, that is, the supreme court needs only to determine whether the trial court abused its discretion in fashioning suitable visitation rights. Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Trial court did not err in denying the mother’s motion to modify custody because it addressed the factors listed in subsection (c), and its findings provided ample indication of the considerations upon which its decision was based; the mother pointed to no evidence to suggest that the child’s best interests would be better served if she was appointed sole legal custodian. Walker v. Hagberg, — P.3d — (Alaska Feb. 6, 2013), (memorandum opinion).

In awarding sole legal custody of the parties’ child to the husband, based on the evidence presented at trial it was not error to find that the wife had engaged in domestic violence and that the husband did not. McGrady v. McGrady, — P.3d — (Alaska Mar. 20, 2013), (memorandum opinion).

Custody award on conflicting evidence. —

The fact that an award of custody is based upon extremely conflicting evidence does not of itself show an abuse of discretion. Harding v. Harding, 377 P.2d 378 (Alaska 1962); Bass v. Bass, 437 P.2d 324 (Alaska 1968).

Award within discretion of the superior court. —

Custody award was within the discretion of the superior court where it relied, under subsection (c) of this section, on the fact that the mother had been the children’s primary caregiver on a full-time basis and was an excellent mother. Odom v. Odom, 141 P.3d 324 (Alaska 2006).

The court properly set limitations on a father’s communications with the mother where the father had committed three domestic violence crimes against the mother in the five years preceding the order. Although the trial court found that he did not pose a danger of mental or physical injury to the child, it was not required to ignore his past domestic violence crimes against the mother, his controlling attitudes, or his efforts to reunite with the mother when she did not wish to do so. Kenneth S. v. Beulah E., — P.3d — (Alaska Aug. 26, 2015).

Superior court, which awarded a wife sole legal and primary physical custody of the parties' children, did not clearly err in finding that the husband had not internalized the lessons a batterers' intervention program taught, did not acknowledge his wrongdoings, and was unable to take responsibility for his actions in any meaningful way. It was not an abuse of discretion for the superior court to weigh these facts against the husband in its custody decision. Pasley v. Pasley, 442 P.3d 738 (Alaska 2019).

Emphasis on one factor held not erroneous. —

In a custody proceeding, the court’s findings were not deficient as a matter of law where the court considered and discussed evidence relating to most of the statutory custody factors that were actively disputed; the court’s ultimate decision to give determinative weight to one of the factors, and the consequent emphasis it placed on that factor did not, standing alone, establish that the court ignored the remaining factors or gave them inadequate weight. Ebertz v. Ebertz, 113 P.3d 643 (Alaska 2005).

When case must be remanded. —

Where the supreme court is unable to conclude with any degree of certainty that custody was decided without taking into consideration impermissible factors, the case must be remanded for further proceedings. Carle v. Carle, 503 P.2d 1050 (Alaska 1972).

If the supreme court finds that the trial court has used an impermissible criterion in its determination, it will remand the case for a decision in which proper factors are considered. Johnson v. Johnson, 564 P.2d 71 (Alaska 1977), cert. denied, 434 U.S. 1048, 98 S. Ct. 896, 54 L. Ed. 2d 800 (U.S. 1978); Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979).

Custody ruling upheld. —

Superior court did not abuse its discretion by ordering joint legal custody because it did not conclude that the mother and the father were incapable of communicating; the superior court believed that the parties would be capable of communicating in the future and instructed them that in the future, communication between the parents regarding the children's medical appointments would occur in writing via email. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

The superior court did not err in failing to award joint legal custody of child. Smith v. Smith, 673 P.2d 282 (Alaska 1983).

The majority of the parties’ final custody order was proper. The superior court properly considered the parties’ current circumstances and explicitly noted that if and when the father returned to court, a best interests analysis would be applied. Jack C. v. Tally C., 284 P.3d 13 (Alaska 2012).

Superior court did not abuse its discretion in weighing the factors used to determine the best interests of the child because its conclusions regarding the mother’s emotional connection to the child and that the stability factor favored neither parent were supported by its factual findings, which in turn were supported by the evidence. Snider v. Snider, 357 P.3d 1180 (Alaska 2015).

The superior court properly considered the AS 25.24.150(c) factors, including a rejection of the child's preference, because of the father's inappropriate influence and concern over the father's ability and opportunity to commit domestic violence. Michael M. v. Catherine T., — P.3d — (Alaska Oct. 19, 2016) (memorandum decision).

Trial court did not abuse its discretion in granting the mother primary physical custody, as she had provided consistent care for the child, provided a stable environment, and promoted a relationship between the child and the father. Judd v. Burns, 397 P.3d 331 (Alaska 2017).

Father had sole legal and physical custody of the couple’s son, while the mother was given ample visitation during summer vacation and holidays. At the beginning of summer vacation the mother picked up the child but did not provide detailed contact information as required by the order. She also failed to allow telephonic visitation between father and son as required. In response to the father’s expedited motion to resolve this issue, the mother was ordered to give the son a telephone and allow the son to have telephonic contact with the father. This subsequent order was proper, and served to interpret and clarify the original order. del Rosario v. Clare, 378 P.3d 380 (Alaska 2016) (memorandum decision).

Trial court's award of child custody to a father was upheld because the court appropriately weighed the stability of their daughter's relationship with her mother, who had been her primary caretaker, against the likelihood that the mother would interfere with a relationship between the daughter and the father. Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Award of joint legal custody with father having primary physical custody for the school year in Alaska and mother having summers with the child in New York was appropriate because the father worked during the summer as a commercial fisherman and the mother worked as a teacher, Alaska was the child's primary residence, the mother left Alaska with the child without intention of returning, the father received counseling for substance abuse, and the father was the parent most willing to promote the child's relationship with the other parent. Marschke v. Dunbar, — P.3d — (Alaska July 21, 2021).

Superior court in a divorce action did not abuse the court's discretion in awarding the wife conditional sole legal custody and primary physical custody of the parties' child because the court considered the wife's violations of the court's orders, the wife's animosity towards the husband, and the wife's unwillingness to foster a relationship between the husband and the child. The court also found that there was insufficient evidence of domestic violence. Chichenoff v. Blondin, — P.3d — (Alaska Sept. 15, 2021) (memorandum decision).

No abuse of discretion by trial court. —

In awarding sole legal and primary physical custody of the parties’ five children to the mother, the superior court did not abuse its discretion in its determination that the best way to address the parties’ communication difficulties, while looking out for the children’s best interests, was by a grant of sole legal custody to one parent. Dobson v. Dobson, — P.3d — (Alaska Aug. 6, 2014)(memorandum decision).

Abuse of discretion by trial court. —

The trial court abused its discretion in not awarding both parents shared custody of their child where the evidence indicated that the only area of irreconcilable conflict between the parents concerned what form of day care would be best for their child; resolution of the day care issue does not require denial of joint-legal custody, which the Alaska legislature recognizes as the favored course. Bell v. Bell, 794 P.2d 97 (Alaska 1990).

Where the mother was the child’s primary caregiver and sole custodian (apart from visitation) after the parties separated, and given the opinions of custody investigators that, in the interests of continuity and stability the child should remain with the mother, it was an abuse of discretion to change the status quo and award the child to the father. Vachon v. Pugliese, 931 P.2d 371 (Alaska 1996).

Proportional custody determination held abuse of discretion. —

In this custody modification case, the superior court offered no analysis as to how a 59/41 custody determination achieves the benefit contemplated; the superior court assigned disproportionate weight to some factors with little analysis, while ignoring or improperly weighing key factors in the case, and remand was required. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

III.Custody Modification
A.In General

All custody awards are subject to motions for modification. Britt v. Britt, 567 P.2d 308 (Alaska 1977), overruled in part, Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).

A motion to modify custody may be made at any time during the minority of the child involved, and the superior court has an obligation to consider such a request. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Motion made immediately after decision in divorce case. —

A motion for custody modification, which was made immediately after the court’s decision in a contested divorce case, was tantamount to a motion for a new trial on the custody issue. King v. King, 477 P.2d 356 (Alaska 1970).

Sufficient notice of hearing. —

A custodial parent had sufficient notice that a hearing would involve modification of custody, not simply the establishment of a visitation schedule, where it was shown that he was aware of his former wife’s intention to seek equal time with the children. Siekawitch v. Siekawitch, 956 P.2d 447 (Alaska 1998).

Mother not denied due process.—

In this custody modification case, the mother was not denied due process, as case law put her on notice that extended family could play a role in the best interests analysis, she had adequate notice that grandparent involvement could be considered, and she was given the opportunity to respond. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Application of Uniform Child Custody Jurisdiction Act. —

The jurisdictional prerequisites of former AS 25.30.020 (for a similar provision, see now AS 25.30.300 ) apply when a superior court is asked to modify custody. Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982).

A change in custody should not be ordered lightly. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973); De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

Mother was not entitled to modification of custody, as the trial court recognized that the father had a past history of domestic violence but that there were not current concerns, the children’s needs were being met in Alaska, a psychologist opined that a move to New Jersey would impact one of the children negatively, and the mother’s home would not provide an emotionally stable environment. Andrea C. v. Marcus K., 355 P.3d 521 (Alaska 2015).

Best interests of child is test. —

A court should not alter a previous custody determination without a reasonable basis for concluding that the best interests of the child dictate such a change. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

A court modifying a previous custody determination must be guided by what appears to be the best interests of the child. Horton v. Horton, 519 P.2d 1131 (Alaska 1974).

Where the court did not demonstrate consideration of the relevant factors specified in subsection (c) in its order and made no general finding concerning the child’s best interests, the order issed as a result of the hearing was not sufficiently comprehensive to serve as a basis for a general custody change. Platz v. Aramburo, 17 P.3d 65 (Alaska 2001).

Award of sole custody to mother was in the child’s best interests where the mother adhered to the demands of the child’s special dietary needs, was capable of fostering a continued relationship between the father and the child, and where the father was a firm disciplinarian, which on occasion included severe physical correction of his children. Millette v. Millette, 177 P.3d 258 (Alaska 2008), overruled in part, Geldermann v. Geldermann, 428 P.3d 477 (Alaska 2018).

Court properly modified child custody to the father because the mother lived in four residences in five years, she worked for six employers in five years, the mother admitted that even after ending her substance abuse treatment she was drinking more, and the father’s purchase of a business supported his intention to establish roots in the community. Littleton v. Banks, 192 P.3d 154 (Alaska 2008).

Father’s custody modification motion was properly denied because the evidence supported the superior court’s best interests findings that the mother provided the children with a stable, satisfactory environment; the children became stressed during visitation with their father, and the children were very close and should live together. Worthington v. Worthington, — P.3d — (Alaska Aug. 24, 2011), (memorandum opinion).

Denial of father’s motion for custody of his son was proper where the father had not seen the son for several years, had failed to comply with a court order regarding a psychological evaluation, and had not kept up with telephonic visitation. The son was shown to be well-adjusted and successful in his existing custody arrangement. Kurka v. Kurka, — P.3d — (Alaska Nov. 28, 2012), (memorandum opinion).

Conclusion that there was a change in circumstances only provided the basis for a full custody modification hearing, and this conclusion did not control the best interests analysis; at that stage of the analysis, the inability of the parents to communicate was simply one of many statutory factors the trial court was required to consider. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Superior court conducted a complete analysis of the best interests factors, weighing allegations of domestic violence in the balance along with the other factors, and the superior court’s decision was based not on an adverse domestic violence finding, but on a complete analysis of the best interest factors, and the determination was within the superior court’s discretion. Azzam v. Mortenson, — P.3d — (Alaska Feb. 25, 2015)(memorandum decision).

Required findings show court considered all factors. —

After considering the father’s concerns about the mother’s choice to pursue alternative medical care and her opposition to having the children vaccinated, the court nevertheless found that, overall, the mother demonstrated a higher degree of attention to the children’s physical and medical needs than did the father, based primarily on the parties’ testimony. Co v. Matson, 313 P.3d 521 (Alaska 2013).

Court’s findings were based primarily on testimony and it was not clear error to conclude 1) that the mother was more likely to facilitate and encourage a relationship with the father; 2) that the father’s continued marijuana use would impact the children in light of its negative effect on the children in the past; and 3) that the father did not keep the children on a consistent, stable schedule. Co v. Matson, 313 P.3d 521 (Alaska 2013).

Although the court stated that it considered the children’s ages in determining that primary physical custody should go to the mother, that fact alone did not show that the court applied the tender years doctrine. Age of the children, and the need for stability at an early age are properly considered in determining the children’s best interests. The tender years doctrine was an automatic preference for maternal custody of young children, and there was nothing in the court’s findings to indicate such preference was applied. Co v. Matson, 313 P.3d 521 (Alaska 2013).

Award of primary physical and sole legal custody to the father was proper, given that the superior court weighed the evidence in light of the statutory factors and addressed each factor in depth, finding in part that the mother was less capable to care for the children due to her mental health issues, and that the mother’s alcohol abuse created a substantial risk for the children. Frackman v. Enzor, 327 P.3d 878 (Alaska 2014).

Best interest findings. —

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the first two factors set forth in subsection (c) favored the mother because she had made extensive efforts to address the child's mental health needs, and the father had not fully recognized or accepted the extent of the child's mental health issues. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Because the trial court’s custody order impacted only one child, the trial court was required to make findings with respect to her best interests, but neither the written nor the oral findings provided a sufficient basis for the appeals court to review whether the order was reasonable; it was not apparent from the written findings how the trial court reached its decision, nor was it clear what statutory factors the trial court considered important. Provost v. Dooley, — P.3d — (Alaska Feb. 18, 2015)(memorandum decision).

It was not error for a court considering a mother's custody modification motion to decline to conduct a best interests analysis because the court had to first find a substantial change in circumstances, which was not shown. Andrea C. v. Marcus K., — P.3d — (Alaska Nov. 28, 2018) (memorandum decision).

Superior court did not abuse its discretion in entering an order modifying custody, which awarded sole legal and physical custody of her three children to the father and limited the mother to supervised visitation pending the children's full engagement in therapy, because the mother's interference with the children's therapy amounted to a change in circumstances, and the children's best interests were served by an award of sole legal and physical custody to the father while therapy took hold as it was within the superior court's broad discretion to determine that the children's special need for psychotherapy was their predominant need and that the mother was not currently capable of supporting that need. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018).

It was not an abuse of discretion to find a mother showed no substantial change in circumstances when moving for a custody modification because (1) the court did not previously find such a change, and (2) it was not clear error to find no domestic violence occurred. Andrea C. v. Marcus K., — P.3d — (Alaska Nov. 28, 2018) (memorandum decision).

It was not error for a court considering a mother's custody modification motion to decline to conduct a best interests analysis because the court had to first find a substantial change in circumstances, which was not shown. Andrea C. v. Marcus K., — P.3d — (Alaska Nov. 28, 2018) (memorandum decision).

Custody modification was in the child's best interests because the mother had left the child in the care of her boyfriend who had proven himself a poor caregiver and had a violent history; she had allowed the boyfriend to store a gun in her home even after knowing about his prior conviction for a violent crime; and, even when the father was away for work, he provided a more stable environment by leaving the child in the care of responsible adults. Adrianne C. v. Christopher D., — P.3d — (Alaska Jan. 13, 2021) (memorandum decision).

When modifying visitation to limit the mother's visitation to alternating weekends and major holidays, the superior court did not improperly punish her for her failure to comply with prior custody order but rather properly considered how her actions affected her child's best interests, because the appointed custody investigator testified that the child needed therapy and he failed to receive it while in the mother's custody, and the mother would not allow the child to visit the father. Sidney v. Gingerich, — P.3d — (Alaska Mar. 3, 2021).

Superior court did not clearly err in finding that the mother interfered with the relationship between the son and the father because texts between the mother and the son showed that the mother failed to encourage a close and continuing relationship; thus, the superior court did not abuse its discretion maintaining the father's sole legal and primary physical custody over the child. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Superior court did not clearly err by failing to find that a father was stalking a mother or by finding that the mother's fears of stalking undermined her ability to provide a stable environment because the mother testified about a speculative connection between the father and a car she saw in their neighborhood; the mother's extensive testimony about stalking revealed it to be a source of fear and preoccupation for her. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Because the record indicated that the child was receiving mental health care while in the father's custody, the superior court did not clearly err in finding that the father was providing the child with access to the care he needed; the superior court did not clearly err when it found that the father had been ensuring that the child had a relationship with a therapist with a continuing psychiatric relationship because he consistently saw a therapist and a psychiatrist. Jessica P. v. Gary P., — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Stability factor in modification proceedings. —

Superior court did not err in modifying custody because its best interests findings were supported by the record; the evidence supported the superior court's findings that the fifth factors set forth in subsection (c) favored the mother in light of the child's fragile condition, profound mental health issues, and repeated hospitalizations because the record contained evidence of the child's hospital stays and treatment program. Lewis G. v. Cassie Y., 426 P.3d 1136 (Alaska 2018).

Stability factor set out in subsection (c) requires the court awarding child custody to engage in a comprehensive review of applicable elements of continuity, both retrospectively and prospectively. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

In a parental relocation case, the court properly analyzed the best interests criteria in awarding the mother custody of the child because there was extensive testimony in the record about the child’s close relationship with his half-sisters, and the court found that both parents did an acceptable job maintaining a stable, satisfactory environment for the child. The superior court considered circumstances that the child was likely to encounter in each environment, such as contact with extended family, and showed due consideration for the statutory “stability” factor. Rego v. Rego, 259 P.3d 447 (Alaska 2011).

Father’s custody was properly expanded: the court did consider the stability factor and determined the child’s stability would not be entirely disrupted with a new custody arrangement since the child would continue to attend the same school and was already adjusted to the father’s care on shorter visits. Rebecca L. v. Martin C., — P.3d — (Alaska Mar. 13, 2013), (memorandum opinion).

In this custody modification case, the stability factor favored the mother, as it was not unreasonable for the trial court to have considered that the child had been in the mother’s care for most of her life and this stability would be disrupted if custody were awarded to the father; the trial court did not abuse its discretion in considering the mother’s status as a primary caregiver. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Religious needs of the child. —

Because neither parent presented any special religious considerations during the hearing, and the mother was granted visitation on Christmas Eve or Christmas Day in alternating years if she were near the father’s residence in Idaho, it was not an abuse of discretion for the court not to give further consideration to the religion factor in its best interest determination in its custody decision. Walters v. Cook, — P.3d — (Alaska Dec. 18, 2013), (memorandum opinion).

It was not an abuse of discretion to award major school holidays and the bulk of the summer vacation to the father, who had moved out of state. The mother, who had primary custody, was given 21 days visitation during the summer and the right to video conference at bedtime every night. Walters v. Cook, — P.3d — (Alaska Dec. 18, 2013), (memorandum opinion).

Parent's ability to care for child. —

Where the father lived in a large two-bedroom trailer with no running water and no central heat, but he heated his home with a wood stove and kept 100 gallons of water on hand for the toilet and other household uses, and the mother lived in a housing project, the superior court did not incorrectly determine that both parties were equally capable of meeting their minor son’s housing needs. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Willingness of parent to facilitate relationship with other.—

In this custody modification case, the lower court failed to recognize that the father's behavior ultimately undermined the mother-child relationship, and it was an abuse of discretion to decide that best interests factor six was neutral; the father abused the settlement agreement and deprived the mother of contact with the child, and the mother was more willing than the father to facilitate visitation. Weathers v. Weathers, 425 P.3d 131 (Alaska 2018).

Removal of the children from the state should not automatically shift custody without a hearing. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

Superior court abused its discretion in a joint custody case where it entered an order stating the father would gain primary physical custody if the mother moved from Alaska to Florida, without considering the detriment to the child if he was separated from his mother. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Continuity and stability factors do not preordain the result in relocation cases; instead, they command a comprehensive inquiry into each parent’s respective ability to maintain stable and satisfactory relations between themselves and the child. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Move of custodial parent to another state. —

In making a custody determination where the existing custodial parent chooses to move out of state, a court must consider the best interests of the children by applying the criteria in subsection (c) of this section, and in so doing should consider whether there is a legitimate reason for the move. McQuade v. McQuade, 901 P.2d 421 (Alaska 1995).

In a case in which a child's father alleged that the mother was moving to another state only to make it more difficult for him to spend time with the child, the Supreme Court concluded that the superior court did not clearly err in its findings about the mother's motives or abuse its discretion in the way it conducted its analysis. The superior court recited the evidence supporting its finding about the mother's primary, legitimate motive and, having found that any ulterior motive was at best secondary, went on to carefully weigh the father's allegations in its best interests analysis. Johnson v. Wilson, — P.3d — (Alaska Feb. 20, 2019) (memorandum decision).

In concluding that it was in a child's best interests to remain in Alaska, in her father's custody, the superior court did not properly consider the effect of separating the child from her mother, who wished to relocate with the child to New York. The failure to engage in proper symmetrical analysis constituted error. Saffir v. Wheeler, 436 P.3d 1009 (Alaska 2019).

Superior court did not err in modifying child custody and allowing a mother to relocate with the parties' child to another state because the court found that the mother's motivation was designed to foster a new life with the mother's new boyfriend. The court also found that the mother was not making a concerted effort to exclude the father from the child's life; the court did not fail to give substantial deference to the original custody order, and the court considered testimony about the child's community of family and friends in Alaska. Ott v. Runa, 463 P.3d 180 (Alaska 2020).

Move of non-custodial parent to another state. —

In a modification of custody and visitation action, the court’s remarks recognizing the practical realities of a custody and visitation decision for a school-age child when the parents live in different states, which nearly always require a child to spend the school year with one parent and to spend as much vacation time as possible with the other, the court did not err in applying those considerations to its best interests determination in its child custody decision. Walters v. Cook, — P.3d — (Alaska Dec. 18, 2013), (memorandum opinion).

Move of custodial parent to another state.

Because the supreme court could determine whether the superior court abused its discretion in weighing the best interests factors, the case was remanded for renewed consideration of the challenged factors along with the symmetrical analysis; the superior court's analysis of the child's needs and the parents' capability and desire to meet them did not support its conclusion that it was in the child's best interests to remain in Alaska. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

It was improper to find that it was in a daughter's best interests to remain in Alaska with her father during the school year because the superior court failed to conduct the required symmetrical analysis; because the legitimacy of the mother's move was undisputed, the superior court was required to evaluate and symmetrically analyze the impact on the child of the move, but it failed to consider how stability in Alaska would be affected by the child's prolonged separation from her mother. Carpenter v. Blue, — P.3d — (Alaska Mar. 17, 2021) (memorandum decision).

Relocation of one parent affecting stability of child's environment. —

Because the child would no longer be able to spend equal time with each parent in situations in which two parents share custody and one subsequently decides to relocate to another state, a court considering the child’s need for stability in this context must examine not only the desirability of maintaining geographical continuity, but also the importance of maximizing relational stability. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Trial court’s finding that the father was less likely than the mother to facilitate a close and continuing relationship with the other parent rested on the trial court’s determination that, inter alia, the father’s claim that it was important for the mother to have contact with the child was not credible and the mother’s testimony as to the importance of communicating with the child about the other parent was credible. James R. v. Kylie R., 320 P.3d 273 (Alaska 2014).

Anticipated relocation by parent constitutes changed circumstance. —

Where parties had joint legal and physical custody of their daughter, superior court did not abuse its discretion by ruling that it was in the daughter’s best interests under subsection (c) to stay with the father in Alaska to maintain continuity and stability should the mother move to Oregon; mother’s move was driven in part by the illegitimate motive of limiting the father’s ability to be involved in their daughter’s life. Eniero v. Brekke, 192 P.3d 147 (Alaska 2008).

Where a parent filed for a custody determination on the basis of an anticipated move out of state, the anticipated move constituted a change in circumstances that required determination of custody following the move. Nelson v. Nelson, 263 P.3d 49 (Alaska 2011).

Modification of child custody or visitation must generally rest upon some substantial change in circumstances. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Modification not barred. —

Superior court correctly ruled that a mother’s motion to modify custody was not barred by res judicata or collateral estoppel because the parties repeatedly and expressly declined to litigate issues of domestic violence or custody at the long-term domestic violence hearing, and the mother was not attempting to relitigate issues that had already been decided; neither domestic violence nor custody was actually litigated and necessarily decided in the protective order proceeding. Graham R. v. Jane S., 334 P.3d 688 (Alaska 2014).

The “change of circumstance” doctrine is not an ironclad rule. King v. King, 477 P.2d 356 (Alaska 1970).

This section does not refer to a requirement of “change of circumstance” in order to modify a decree. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

It is perhaps possible to conceive of a case in which, despite the fact that there was apparently no change of circumstances, nevertheless the welfare of the child might require that the previous order of custody be changed, but without some change in circumstance there is no logical basis for a court to alter a determination that has once seriously and finally been made. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

The concept of “substantial change” of circumstances is not a limitation on the discretion of the trial court to determine custody according to the best interest of the child. Rather, it may be considered simply a rule of judicial economy designed to discourage discontented parents from continually renewing custody proceedings. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

The “substantial change” of circumstances is not an initial obstacle to be overcome by either party in order to have the court redetermine custody. It is simply one of the factors to be weighed in the balance by the court when a motion for modification of a divorce decree in respect to custody is made. King v. King, 477 P.2d 356 (Alaska 1970); Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Where a requested change in custody was not in the child’s best interests it was unnecessary to determine whether there was a substantial change in circumstances; the dispositive issue was the child’s best interests, not the alleged change in circumstances. Matthew P. v. Gail S., 354 P.3d 1044 (Alaska 2015).

Substantial change issue waived. —

Mother waived her argument that no substantial change in circumstances occurred; she mentioned the issue only in her statement of points and did not further develop it, and she never raised the issue at either hearing. Provost v. Dooley, — P.3d — (Alaska Feb. 18, 2015)(memorandum decision).

Preferences of older children. —

The superior court gave proper weight to the teenagers’ desire to live with their mother, but their preferences were not mature and well-reasoned, and were outweighed by their need for the “substantial guidance” that the court found the father better equipped to provide. Jenkins v. Handel, 10 P.3d 586 (Alaska 2000).

It was proper to give significant weight to a 14-year-old son’s preference to move to Virginia with his father. The mother did not provide any reason to question his maturity, nor did she point to evidence suggesting the child’s preference was a result of pressure. Sheffield v. Sheffield, 265 P.3d 332 (Alaska 2011).

No substantial change in circumstances justifying a modification of custody was shown because (1) the parties did not agree to modification, (2) the children stated no such preference, (3) passage of time did not suffice, (4) the parties' inability to communicate was not a change, and (5) a change in a mother's child-care ability was not substantial. Berry v. Berry, — P.3d — (Alaska Dec. 11, 2019) (memorandum decision).

Superior court did not abuse its discretion by declining to consider the child's preference when modifying the mother's visitation because the custody investigator reported that the 15-year-old child lacked capacity to form a preference, and the mother did not rebut this evidence. Sidney v. Gingerich, — P.3d — (Alaska Mar. 3, 2021) (memorandum decision).

Change in law as material change. —

Certain changes in the law can constitute material changes of circumstances permitting the modification of child support orders including the adoption of Alaska Civ. P. R. 90.3; the rule change that makes Alaska Civ. P. R. 90.3(a), rather than Alaska R. Civ. P. 90.3(b), the default method for calculating divided custody awards is such a material change. Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002).

Effect of hostility between parents. —

Ordinarily, hostility and dispute between the parents, in and of itself, will not be considered a substantial change of circumstances unless the adverse impact on the child is extreme. The effect of hostility between the parents, however, may combine with other significant changes in circumstance to amount, in the aggregate, to a substantial change sufficient to warrant change of custody. Long v. Long, 816 P.2d 145 (Alaska 1991).

Superior court properly modified the child custody award under AS 25.20.110(a) where sufficient evidence showed that the father had attempted to manipulate the mother and that, as a result, their interpersonal relationship hurt the child; also, contrary to the father’s assertion, the superior court judge never referred to the father’s potential deployment with the U.S. Army in his findings on the stability and continuity of the child’s custody. Chesser v. Chesser-Witmer, 178 P.3d 1154 (Alaska 2008).

Trial court did not err in modifying a custody order and awarding the mother sole legal and primary physical custody because the father did not meet the children’s emotional, mental, and social needs; his conduct towards and negative comments about the mother and her live-in boyfriend had a substantial negative impact on the children. Derrick S. v. Dawn S., — P.3d — (Alaska July 25, 2012), (memorandum opinion).

Parental cooperation. —

Trial court did not abuse its discretion in modifying custody and awarding sole legal and primary physical custody to the mother, as the father failed to convince the court that the superior court clearly erred in finding that the parties did not communicate well enough to share legal custody. Azzam v. Mortenson, — P.3d — (Alaska Feb. 25, 2015)(memorandum decision).

Error not to consider evidence of both parents' faults. —

There was a material change of circumstances due to the mother’s arrests and conduct with her boyfriends that involved domestic violence and a gun. A parent’s history of relationships marked by violence speaks to the statutory factor of “the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.” At the same time it was an abuse of discretion for the court not to consider that the father had been convicted of assaulting the mother. Heather W. v. Rudy R., 274 P.3d 478 (Alaska 2012).

Domestic violence factor. —

In a child custody dispute, the superior court did not err by failing to consider evidence of domestic violence by the husband against the wife to the extent the court faulted the wife for the current relationship between the parties; the superior court did not weigh this factor against either party, and there was no indication the factor affected the custody decision. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

In denying the mother’s motion to modify custody, a court did not err in determining that the presumption in subsection (g) did not apply in the case because each party had committed two acts of domestic violence and the violence was “situational;” domestic violence was not likely to recur by either party and it was not a factor that precluded them from sharing custody. Mallory D. v. Malcolm D., 290 P.3d 1194 (Alaska 2012).

Superior court found there was no domestic violence to trigger the rebuttable presumption in the statute because the mother’s allegations against the father occurred before the superior court’s custody order in 2005, the criminal charges were dismissed, and there was no evidence that he continued to use corporal punishment against the children. Frackman v. Enzor, 327 P.3d 878 (Alaska 2014).

Subsection (g) presumption against giving unsupervised visitation to a parent with a history of domestic violence did not apply where there was no credible evidence in the record establishing that the mother committed acts of domestic violence against the children. Wade R. v. Melinda R., — P.3d — (Alaska Oct. 8, 2014) (memorandum decision).

Parties’ earlier custody order was the product of a stipulated agreement, and the superior court was not called upon at that time to make any findings about domestic violence, such that it was proper for the superior court to consider evidence of domestic violence, regardless of when it was committed, when deciding the parties’ motions to modify custody. Azzam v. Mortenson, — P.3d — (Alaska Feb. 25, 2015)(memorandum decision).

Mother argued that the superior court erred in declining to apply the domestic violence presumption, and she arguably had an opportunity to raise the issue of domestic violence at the subsequent hearing; on remand, the trial court should consider all proffered evidence of domestic violence. Provost v. Dooley, — P.3d — (Alaska Feb. 18, 2015)(memorandum decision).

Superior court did not err in finding that the mother did not have a history of perpetrating domestic violence where the marks, scratches, and bruises as a result of an assault with a belt were not a serious physical injury, the court declined to expand serious physical injury to include emotional harm, and the assault did not constitute two or more distinct incidents of domestic violence. John E. v. Andrea E., 445 P.3d 649 (Alaska 2019).

References to a pattern of domestic violence; to repetitive, perpetual domestic violence; to perpetuating domestic violence; and to doing it again and again to maintain control indicate that the legislature viewed the phrase "more than one incident of domestic violence" as referring to habitual or recurring violence. An episode of excessive corporal punishment lasting 30 minutes does not evince a pattern of domestic violence. John E. v. Andrea E., 445 P.3d 649 (Alaska 2019).

Weight accorded domestic violence factor. —

It was error to grant a father's motion to modify custody of a child because (1) the court did not account for the father's sexual abuse of the mother in analyzing two best interests factors, affecting the weight given the factors, as he admitted committing more than one act of sexual abuse against the mother and therefore had a history of perpetrating domestic violence against her, raising a statutory presumption against awarding him custody, and (2) the court's best interests findings did not weigh his sexual abuse. Angelica C. v. Jonathan C., 459 P.3d 1148 (Alaska 2020).

Open and loving relationship. —

Superior court did not err in finding that the father was more willing and able to allow his son an open and loving relationship with the child’s mother than vice-versa. The father allowed his son to be with his mother on holidays that were technically his visitation days, but the mother never reciprocated; further, the father testified that the mother would not allow the son to take to her house items from the father. Moeller-Prokosch v. Prokosch, 99 P.3d 531 (Alaska 2004).

Continuing relationship. —

In this custody modification case, the trial court did not abuse its discretion in weighing the continuing relationship factor; the trial court clearly identified which factors it found to be most important, and could have concluded that a permanent visitation schedule would be enough to ensure mother did not repeat her previous misconduct. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Arrangement jeopardizing father's relationship with children. —

Finding that the existing custody arrangement, in which the mother had custody, placed the relationship of the father and the children at risk, supported change of custody, granting custody of the children to the father. Pinneo v. Pinneo, 835 P.2d 1233 (Alaska 1992).

Interim custody awards. —

Modification of a final custody award requires evidence of changed circumstances and evidence that the modification is in the best interests of the child. By contrast, the supreme court has long held that the trial court’s interim custody decision requires only an analysis of the factors in subsection (c) and consideration of the best interests of the child. There is no legal authority to support a party’s contention that the trial court must find changed circumstances to justify altering its interim custody award. Velasquez v. Velasquez, 38 P.3d 1143 (Alaska 2002).

Substantial change found. —

There was satisfaction of the “substantial change” doctrine where each party had remarried and the home environment for the child that would be afforded by either party had changed. King v. King, 477 P.2d 356 (Alaska 1970).

The custodial parent’s decision to leave the state with the children constitutes a substantial change in circumstances. House v. House, 779 P.2d 1204 (Alaska 1989).

Modification justified. —

Court properly modified child custody to a father where the mother interfered in the father’s relationship with the child, which demonstrated an unwillingness to allow an open and loving relationship, and the mother’s assisted living facility raised a concern about her ability to meet the child’s physical, emotional, mental and social needs. Chesser-Witmer v. Chesser, 117 P.3d 711 (Alaska 2005).

Superior court properly modified custody of the parties' children from the mother in New York to the father in Alaska because the court did not deprive the mother of due process, the superior court made clear findings based on the statutory best interests factors and not to punish the mother, and the superior court's findings of fact: 1) that the mother was not credible, 2) misrepresented information about one of the children to medical providers, and 3) falsely characterized the mother's move to the area to a New York court, were not clearly erroneous. Burns v. Burns, 466 P.3d 352 (Alaska 2020).

Burden of proof. —

The burden of proving a substantial change of circumstance is on the moving parent. House v. House, 779 P.2d 1204 (Alaska 1989).

When hearing not required. —

While a trial court must consider all motions for a change in custody, it is not required to grant a hearing on the motion if it is plain that the facts alleged in the moving papers, even if established, would not warrant a change. Deivert v. Oseira, 628 P.2d 575 (Alaska 1981).

This section precludes a superior court from denying a motion for a change in custody with prejudice. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Future requests for changes. —

A superior court may deny any particular request for modification of child custody or visitation so long as it does not abuse its discretion in doing so; but it cannot preclude future requests for a change in custody. Cooper v. State, 638 P.2d 174 (Alaska 1981).

Weight must be given to findings made at the original hearing. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

A court must give great weight to a finding of unfitness by a trial judge who has heard exhaustive testimony and examined exhibits, including medical and psychiatric reports. Nichols v. Nichols, 516 P.2d 732 (Alaska 1973).

Consideration of original decree in modification cases. —

Where the court, in a hearing on a petition for change of custody, made only passing reference to the prior proceedings, the hearing became a reweighing of the evidence at the original custody hearing without imposing the heavy burden of persuasion required of the party seeking the modification, and was an abuse of discretion. Gratrix v. Gratrix, 652 P.2d 76 (Alaska 1982).

Motion not supported by evidence of changed circumstances. —

Where mother belatedly filed a motion to reconsider, for the first time alleging domestic violence against the father, the trial court properly refused to hear the motion because the mother failed to present evidence of a changed circumstance that would affect the children’s best interests. Ginn-Williams v. Williams, 143 P.3d 949 (Alaska 2006).

Father's motion to modify child custody based on a substantial change in circumstances was properly denied because the changes identified were the outgrowth of the superior court's decision to allow the mother to move to Germany with the children, and it had anticipated that there might be setbacks as the children adapted to German schooling; the father did not address the concern that he was able to exert undue influence on the children; there was no abuse of discretion in denying a change of custody when a parent did not address concerns about the children potentially having been coached and influenced, making it impossible to determine their true preferences; and the eldest child's age alone did not constitute a change in circumstances. Bennett v. Bennett, — P.3d — (Alaska Sept. 25, 2019) (memorandum decision).

Review. —

The Alaska supreme court will only reverse a trial court’s decision to deny a change in custody if it abuses the substantial discretion it possesses in such matters, or if it makes clearly erroneous findings. Deivert v. Oseira, 628 P.2d 575 (Alaska 1981).

Establishment of abuse of discretion. —

Abuse of discretion by a trial court in denying a change in custody can be established by showing that the court considered improper factors in making its determination, that it failed to consider statutorily-mandated factors, or that too much weight was assigned to some factors. Deivert v. Oseira, 628 P.2d 575 (Alaska 1981); Starkweather v. Curritt, 636 P.2d 1181 (Alaska 1981).

Discretion not abused. —

Superior court did not abuse its discretion in determining that remaining in the father’s custody and moving with him to California would be in the children’s best interests. House v. House, 779 P.2d 1204 (Alaska 1989).

There was no basis for concluding that the trial court committed clear error when it found that the mother was the parent more capable of fostering a loving relationship than the non-custodial parent. Pearson v. Pearson, 5 P.3d 239 (Alaska 2000).

Trial court did not err in modifying child custody agreement because it adequately addressed the children’s best interests under the required factors set out in subsection (c). Kelly v. Joseph, 46 P.3d 1014 (Alaska 2002).

Court properly found that it was in the children’s best interests for the mother to have sole legal custody because the court emphasized the mother’s track record as a primary caregiver, and it found that while the mother had promoted the children’s relationship with the father, the father undermined their relationship with the mother. William P. v. Taunya P., 258 P.3d 812 (Alaska 2011).

Supervised visitation held proper. —

Superior court did not err in limiting the mother to supervised visitation pending the children's full engagement in therapy because the mother had refused to accept the realities of the scope of assistance required for the children, rendering her incapable of supporting the children's special need for psychotherapy; the father was attempting to establish another therapeutic relationship, but the court feared that the mother would sabotage that relationship as well; and the court determined that the only workable option was to limit the mother's negative influence on the children, at least temporarily, so that the therapy could take hold. Georgette S.B. v. Scott B., 433 P.3d 1165 (Alaska 2018).

Award supported by analysis upheld. —

Mother failed to establish clear error or an abuse of discretion on the part of the superior court that modified a previously-entered child custody award, and to award the custody of all four children to their father, where court supported its award with a brief analysis of each of the best interests factors set forth in subsection (c)(1)-(9) of this section. Melendrez v. Melendrez, 143 P.3d 957 (Alaska 2006).

Visitation schedule held reasonable. —

In this custody modification case, the court-ordered visitation schedule consisted of Wednesday evening and weekend visits, which was an increase in the father’s visitation; it reasonably addressed the trial court’s concern with stability, and was not an abuse of discretion. Houston v. Wolpert, 332 P.3d 1279 (Alaska 2014).

Conformity with Alaska law. —

In a custody modification proceeding, the superior court was well within its discretion when it modified the custody order to make it conform to Alaska law. Heber v. Heber, 330 P.3d 926 (Alaska 2014).

B.Decrees of Other States

Effect of awarding custody in another state. —

A decree awarding the custody of a child to one of the parties, rendered when the child is in another state, does not preclude the courts of the latter state from determining the question of custody of the child, although the court rendering such decree retains jurisdiction for the purpose of making further orders. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

A foreign custody decree can be modified in the absence of a showing of changed circumstances. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Relationship of the full faith and credit clause to child custody cases. —

The full faith and credit clause should be applied in custody cases as a deterrent to child stealing or forum shopping by a litigant. However, where the children had lived in Alaska for a year before the mother obtained a Montana custody order transferring custody to her, the Alaska court did not err in failing to accord full faith and credit to the Montana modification order. Wilsonoff v. Wilsonoff, 514 P.2d 1264 (Alaska 1973).

A child’s welfare has such a great claim upon a state that this responsibility was not to be foreclosed by a prior adjudication made by another state. Wilsonoff v. Wilsonoff, 514 P.2d 1264 (Alaska 1973); Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Although a sister state’s decree should not be ignored in custody matters, strict application of the full faith and credit clause would result in a default of the court’s responsibility to ensure the welfare of minor children domiciled in Alaska. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Foreign decrees should not be wholly ignored in custody disputes. De Hart v. Layman, 536 P.2d 789 (Alaska 1975).

And are to be considered significant factor. —

Alaska law requires that the custody decree of a sister state be considered a significant factor by the courts of Alaska in determining whether or not the foreign custody decree should be modified. Layman v. De Hart, 560 P.2d 1206 (Alaska 1977).

Application of “clean hands” doctrine. —

The “clean hands” doctrine is generally considered a device for resolving problems of custody jurisdiction among the states and is most commonly invoked when a court is asked to either enforce or modify a custody decree of a sister state. King v. King, 477 P.2d 356 (Alaska 1970).

The “clean hands” doctrine serves no purpose in a setting where the court is asked to modify its own custody award as specifically allowed by the statute. King v. King, 477 P.2d 356 (Alaska 1970).

Courts will recognize and enforce custody decrees of a sister state without reexamination of their merits, regardless of change of conditions, when there is misconduct or malfeasance on the part of the parent seeking such reexamination, by invoking the doctrine of “clean hands.” This misconduct generally consists of defiantly leaving a sister state, usually the marital domicile, with the minor to avoid its jurisdiction and for the purpose of seeking redetermination of the issue in a more favorable forum. King v. King, 477 P.2d 356 (Alaska 1970).

Collateral references. —

Consent of natural parents as essential to adoption where parents are divorced, 47 ALR2d 824.

Court’s power as to custody and visitation of children in marriage annulment proceedings, 63 ALR2d 1008.

Mental health of contesting parent as factor in award of child custody, 74 ALR2d 1073.

Power of court which denied divorce, legal separation or annulment, to award custody or make provisions for support of child, 7 ALR3d 1096.

Right, in child custody proceedings, to cross-examine investigating officer whose report is used by court in its decision, 59 ALR3d 1337.

Effect in subsequent proceedings, of paternity findings or implications in divorce or annulment decree or in support or custody made incident thereto, 78 ALR3d 846.

Grandparents’ visitation rights, 90 ALR3d 222.

Admissibility of social worker’s expert testimony on custody issue, 1 ALR4th 837.

Visitation rights of persons other than natural parents or grandparents, 1 ALR4th 1270.

Parent’s physical disability or handicap as factor in custody award or proceedings, 3 ALR4th 1044.

Initial award or denial of child custody to homosexual or lesbian parent, 6 ALR4th 1297.

Race as factor in custody award or proceedings, 10 ALR4th 796.

Desire of child as to geographical location of residence or domicile as factor in awarding custody or terminating parental rights, 10 ALR4th 827.

Right of incarcerated mother to retain custody of infant in penal institution, 14 ALR4th 748.

Propriety of awarding joint custody of children, 17 ALR4th 1013.

Propriety of awarding custody of child to parent residing or intending to reside in foreign country, 20 ALR4th 677.

Transsexuality of parent as factor in award of custody of children, 59 ALR4th 1170.

Mother’s status as “working mother” as factor in awarding child custody, 62 ALR4th 259.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Separating children by custody awards to different parents — post-1975 cases, 67 ALR4th 354.

Authority of court, upon entering default judgment, to make order for child custody or support which were not specifically requested in pleadings of prevailing party, 5 ALR5th 863.

Continuity of residence as factor in contest between parent and nonparent for custody of child who has been residing with nonparent—modern status, 15 ALR5th 692.

Parent’s use of drugs as factor in award of custody of children, visitation rights, or termination of parental rights, 20 ALR5th 534.

Rights and remedies of parents inter se with respect to the names of their children, 40 ALR5th 697.

Religion as factor in child custody cases, 124 ALR5th 203.

Sec. 25.24.152. Children as dependents for tax purposes.

  1. In an action for divorce, dissolution, or to declare a marriage void, the court may not unconditionally grant to a noncustodial parent the right to claim a child as a dependent under federal income tax laws. The court may grant a noncustodial parent the right to claim a child as a dependent under federal tax laws for a tax year if the noncustodial parent satisfies the requirements of federal law and was not in arrears at the end of the tax year in an amount more than four times the monthly obligation under
    1. a support order applicable to the child in cases where a payment schedule has not been established for payment of continuing support and accumulated arrears under the support order; or
    2. a payment schedule if a payment schedule has been established for payment of continuing support and accumulated arrears under a support order applicable to the child.
  2. In this section, “noncustodial parent” means the parent who has actual physical custody of the child for less time than the other parent.

History. (§ 13 ch 132 SLA 1998)

Notes to Decisions

Decree allowing tax deduction to noncustodial parent upheld. —

Trial court’s decree complied with both federal law and subsection (a) of this section where it allowed a father to take exemption for one of the couple’s children, although the child lived with the mother, if the father was not in arrears in child support. Ginn-Williams v. Williams, 143 P.3d 949 (Alaska 2006).

Allocation of tax exemption complied with this section. —

Trial court did not abuse its discretion when it awarded the father federal tax exemption for the child because the allocation complied with subsection (a) and Alaska R. Civ. P. 90.3; however, trial court would have opportunity on remand to determine whether that allocation remained appropriate after revisiting child support and visitation expense issues. Skinner v. Hagberg, 183 P.3d 486 (Alaska 2008).

It was within the superior court’s discretion to award the father the federal tax exemption because he would exercise the majority of physical custody as the child approached a school-year schedule. Nancy M. v. John M., 308 P.3d 1130 (Alaska 2013).

It was not an abuse of discretion to give a mother federal tax deductions for two minors because (1) this complied with AS 25.24.152 and Alaska R. Civ. P. 90.3(k), and (2) the trial court's weighing of conflicting evidence was deferred to. Kack v. Kack, — P.3d — (Alaska June 1, 2016) (memorandum decision).

It was not an abuse of discretion to give a mother federal tax deductions for two minors because (1) this complied with AS 25.24.152 and Alaska R. Civ. P. 90.3(k), and (2) the trial court's weighing of conflicting evidence was deferred to. Kack v. Kack, — P.3d — (Alaska June 1, 2016) (memorandum decision).

Superior court did not err in allowing a child's father to claim the child for tax purposes every other year because the child was a qualifying child for both the father and the mother under federal law as the child received all of the child's support from the divorced parents and was in the custody of both parents throughout the year. Chichenoff v. Blondin, — P.3d — (Alaska Sept. 15, 2021).

Sec. 25.24.155. Reservation of issues.

  1. The court may not delay or reserve a custody decision under AS 25.24.150(f) or an issue of property division under AS 25.24.160(c) unless
    1. each party, and the guardian ad litem if one has been appointed under AS 25.24.310 , expressly agrees on the record to the delay or reservation; or
    2. a party who moves for an order of delay or reservation shows good cause and the court finds that the interests of a party opposing the motion will not be jeopardized by the delay or reservation.
  2. The court may not grant a motion under (a)(2) of this section if the court finds that granting the motion would
    1. put the opposing party’s interests substantially at risk due to the death of the other party before a final disposition of the marital property;
    2. diminish the ability of the party opposing the motion to protect the value of assets not in the party’s control;
    3. not be in the best interests of each minor child whose custody would remain unresolved if the motion were granted;
    4. have adverse tax consequences for the opposing party; or
    5. have adverse consequences on the opposing party’s ability to maintain existing health insurance coverage.

History. (§ 2 ch 76 SLA 1991)

Cross references. —

For effect of this section on Rule 54(b), Alaska Rules of Civil Procedure, see § 5, ch. 76, SLA 1991 in the Temporary and Special Acts.

Notes to Decisions

Reservation of divorce decree properly rejected. —

The superior court properly rejected the wife’s proposal for a bifurcation of the legal divorce where she wanted the court to divide the property immediately, but to delay the legal divorce for three years so she could continue health insurance as a spouse under the husband’s coverage without having to pay COBRA premiums. Although paragraph (a)(2) and other statutes limit the situations in which custody determinations or property divisions in divorce proceedings can be reserved until later, no statute permits the reservation of a divorce decree. Sloane v. Sloane, 18 P.3d 60 (Alaska 2001).

Untimely appeal by pro se litigant. —

Divorce decree issued on February 18, 2008 dissolving the legal marriage between the parties was final and appealable, and the wife’s appeal was untimely; however, because it would be unjust and unrealistic to expect a pro se litigant to have anticipated this ruling in order to make a timely appeal, the supreme court went on to consider the merits of the wife’s claim. Husseini v. Husseini, 230 P.3d 682 (Alaska 2010).

Bifurcation. —

While the trial court erroneously granted the bifurcation in the case, the error was harmless as the wife did not explain how the early dissolution of the marriage impacted certain property issues, and vacating the dissolution of the marriage and declaring the parties to be married seemed an inappropriate form of relief. Husseini v. Husseini, 230 P.3d 682 (Alaska 2010).

Dismissal of action where action pending in another jurisdiction. —

In a case in which a wife left her husband in Ohio and moved to Alaska and, where the wife filed for divorce, the superior court did not abuse its discretion in declining to grant a divorce. The superior court’s dismissal of the wife’s divorce action did not preclude the wife from obtaining an Ohio divorce decree. Wilson v. Wilson, 271 P.3d 1098 (Alaska 2012).

Sec. 25.24.160. Judgment.

  1. In a judgment in an action for divorce or action declaring a marriage void or at any time after judgment, the court may provide
    1. for the payment by either or both parties of an amount of money or goods, in gross or installments that may include cost-of-living adjustments, as may be just and proper for the parties to contribute toward the nurture and education of their children, and the court may order the parties to arrange with their employers for an automatic payroll deduction each month or each pay period, if the period is other than monthly, of the amount of the installment; if the employer agrees, the installment shall be forwarded by the employer to the clerk of the superior court that entered the judgment or to the court trustee, and the amount of the installment is exempt from execution;
    2. for the recovery by one party from the other of an amount of money for maintenance, for a limited or indefinite period of time, in gross or in installments, as may be just and necessary without regard to which of the parties is in fault; an award of maintenance must fairly allocate the economic effect of divorce by being based on a consideration of the following factors:
      1. the length of the marriage and station in life of the parties during the marriage;
      2. the age and health of the parties;
      3. the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;
      4. the financial condition of the parties, including the availability and cost of health insurance;
      5. the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
      6. the division of property under (4) of this subsection; and
      7. other factors the court determines to be relevant in each individual case;
    3. for the delivery to either party of that party’s personal property in the possession or control of the other party at the time of giving the judgment;
    4. for the division between the parties of their property, including retirement benefits, whether joint or separate, acquired only during marriage, in a just manner and without regard to which of the parties is in fault; however, the court, in making the division, may invade the property, including retirement benefits, of either spouse acquired before marriage when the balancing of the equities between the parties requires it; and to accomplish this end the judgment may require that one or both of the parties assign, deliver, or convey any of their real or personal property, including retirement benefits, to the other party; the division of property must fairly allocate the economic effect of divorce by being based on consideration of the following factors:
      1. the length of the marriage and station in life of the parties during the marriage;
      2. the age and health of the parties;
      3. the earning capacity of the parties, including their educational backgrounds, training, employment skills, work experiences, length of absence from the job market, and custodial responsibilities for children during the marriage;
      4. the financial condition of the parties, including the availability and cost of health insurance;
      5. the conduct of the parties, including whether there has been unreasonable depletion of marital assets;
      6. the desirability of awarding the family home, or the right to live in it for a reasonable period of time, to the party who has primary physical custody of children;
      7. the circumstances and necessities of each party;
      8. the time and manner of acquisition of the property in question; and
      9. the income-producing capacity of the property and the value of the property at the time of division;
    5. if an animal is owned, for the ownership or joint ownership of the animal, taking into consideration the well-being of the animal.
  2. If a judgment under this section distributes benefits to an alternate payee under AS 14.25, AS 21.51.120(a) , AS 21.54.020(c) , 21.54.050(c) , AS 22.25, AS 26.05.222 26.05.226 , or AS 39.35, the judgment must meet the requirements of a qualified domestic relations order under the definition of that phrase that is applicable to those provisions.
  3. Notwithstanding (a) of this section, if one of the parties to an action for divorce or action declaring a marriage void expressly submits to the court the issue of property division and has not withdrawn that issue from the court before judgment, the court shall provide in the judgment for the division of property and may not reserve the issue of property division for a later time unless the conditions of AS 25.24.155 have been met.
  4. For each judgment issued under this section, the court shall include in the records relating to the matter the social security numbers, if ascertainable, of the following persons:
    1. each party to the action;
    2. each child whose rights are addressed in the judgment.
  5. When distributing property identified as community property under a community property agreement or trust under AS 34.77, unless the parties have provided in the agreement or trust for another disposition of the community property, the court shall make such disposition of the community property as shall appear just and equitable after considering all relevant factors, including
    1. the nature and extent of the community property;
    2. the nature and extent of the separate property;
    3. the duration of the marriage; and
    4. the economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or right to live in the family home for reasonable periods to a spouse with whom the children reside the majority of the time.

History. (§ 12.14 ch 101 SLA 1962; am § 1 ch 84 SLA 1966; am §§ 2 — 6 ch 160 SLA 1968; am §§ 72, 73 ch 127 SLA 1974; am § 5 ch 251 SLA 1976; am § 3 ch 40 SLA 1985; am § 40 ch 37 SLA 1986; am § 27 ch 117 SLA 1986; am § 6 ch 130 SLA 1990; am § 5 ch 133 SLA 1990; am § 3 ch 76 SLA 1991; am § 43 ch 87 SLA 1997; am § 6 ch 42 SLA 1998; am § 14 ch 132 SLA 1998; am § 3 ch 52 SLA 2001; am § 46 ch 80 SLA 2006; am § 19 ch 60 SLA 2016)

Revisor's notes. —

Formerly AS 09.55.210. Renumbered in 1983. Subsection (e) was enacted as subsection (d). Relettered in 1998, at which time the reference to “ AS 34.77” was substituted for “ AS 34.75” to reflect the 1998 renumbering of the chapter.

Cross references. —

For legislative intent in connection with the 1990 amendments to (a)(2) and (4) of this section, see § 1, ch. 130, SLA 1990 in the Temporary and Special Acts; for effect of the enactment of subsection (c) on Rule 54(b), Alaska Rules of Civil Procedure, see § 5, ch. 76, SLA 1991 in the Temporary and Special Acts; for other provisions relating to court-ordered child support, see AS 25.27.060 25.27.070 ; for administratively-ordered child support, see AS 25.27; for court rule determining amount of child support, see Rule 90.3, Alaska Rules of Civil Procedure. For effect of amendments to this section made by ch. 87, SLA 1997 on court rules, see § 151, ch. 87, SLA 1997 in the 1997 Temporary and Special Acts; for purpose and findings provisions related to the amendments affecting this section made by ch. 132, SLA 1998, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 17, 2017, added (a)(5), and made a related change.

Notes to Decisions

Analysis

I.General Consideration

Applicability. —

Where the former wife sought enforcement of a property agreement, the former husband was not statutorily entitled to modification where the property rights of the parties had been adjudicated and incorporated into a final judgment. In the absence of a motion seeking relief from judgment, the superior court’s task was to interpret and enforce the agreement by reference to principles of contract law. McCarter v. McCarter, 303 P.3d 509 (Alaska 2013).

Necessary jurisdiction over parties and subject matter. —

This section and AS 09.55.220 (now AS 25.24.170 ) are predicated upon the court’s jurisdiction of the parties and the subject matter. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Where the plaintiff was a resident of Connecticut and the defendant a resident of Alaska, constructive service of summons being made on the defendant in Alaska, the court of the forum had jurisdiction of the marital status but did not have jurisdiction of the person of the defendant which is essential for the entry of a money judgment for alimony. Thornhill v. Houston, 13 Alaska 150 (D. Alaska 1951).

In a divorce proceeding, the trial court’s failure to grant the husband’s proposed amendment based on his allegation that the court lacked subject matter jurisdiction because the marriage was void was harmless error because the court properly exercised jurisdiction to divide the parties’ property under subsection (a), which allows the division of property acquired during a putative marriage which is found to be void. Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Prohibiting contact with former spouse. —

The superior court has jurisdiction, where appropriate, to enter a “no-contact” order prohibiting a party from making contact with his former spouse in the context of a final decree of divorce. Siggelkow v. State, 731 P.2d 57 (Alaska 1987).

Counseling expenses. —

There was no obvious mistake in the superior court’s consideration of the wife’s counseling expenses because the superior court did not award the wife counseling expenses as tort damages but rather as part of an equitable property division; the court could consider the conduct of the parties when making such a division, and a victim of domestic violence may recover counseling expenses from the responsible party. Shear v. Shear, — P.3d — (Alaska Dec. 3, 2014).

Parties' assets offset by debt. —

Where parties had acquired substantial marital assets but were also deeply in debt, case was remanded with instructions that the trial court make specific findings regarding the propriety of either a rehabilitative or reorientation alimony award and the proper amount thereof. Dixon v. Dixon, 747 P.2d 1169 (Alaska 1987).

Findings related to spousal support. —

Because the trial court did not make findings concerning a former wife’s needs or indicate how its award of spousal support would meet those needs, that issue was remanded to the trial court for reconsideration and additional findings. Barnett v. Barnett, 238 P.3d 594 (Alaska 2010).

Findings held insufficient for child custody determination. —

Trial court had sufficient grounds to determine that a husband and a wife in divorce proceedings were able to communicate effectively when necessary; however, the trial court did not make sufficient findings or conclusions of law to support award of joint legal custody of parties’ children. Dragseth v. Dragseth, 210 P.3d 1206 (Alaska 2009).

Grant of Rule 60(b)(4) motion was improper. —

Court erred in granting husband’s Rule 60(b)(4) motion where he based his decision on the sufficiency of the evidence and not the sufficiency of the procedures provided before or during trial. The conclusion did not implicate the process the husband received, but implicated alleged decisional error for which the remedy is a direct appeal, not a Rule 60(b)(4) motion. Blaufuss v. Ball, 305 P.3d 281 (Alaska 2013).

Student loans.—

For purposes of AS 25.24.160 , the husband failed to show that the superior court's factual findings were clearly erroneous or that he rebutted the presumption that the wife's student loans were marital debt, as the superior court credited the wife's testimony, and the evidence would not be reweighed on appeal. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

Loan from family member. —

Loan from husband’s mother was a marital debt where the wife used this money to pay off her student loans; because the loan was acquired during the parties’ marriage, it was presumptively martial debt, and it was the husband’s burden to prove that it was separate debt. The debt remained presumptively marital because the transaction occurred before the parties were separated. Richter v. Richter, 330 P.3d 934 (Alaska 2014).

Applied in

Murphy v. Murphy, 812 P.2d 960 (Alaska 1991); Chotiner v. Chotiner, 829 P.2d 829 (Alaska 1992); Cox v. Cox, 882 P.2d 909 (Alaska 1994); Foster v. Foster, 883 P.2d 397 (Alaska 1994); Davila v. Davila, 908 P.2d 1027 (Alaska 1995); Johns v. Johns, 945 P.2d 1222 (Alaska 1997); State Farm Auto. Ins. Co. v. Raymer, 977 P.2d 706 (Alaska 1999).

Quoted in

Balchen v. Balchen, 566 P.2d 1324 (Alaska 1977); Allen v. Allen, 645 P.2d 774 (Alaska 1982); Brooks v. Brooks, 677 P.2d 1230 (Alaska 1984); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984); Lawrence v. Lawrence, 718 P.2d 142 (Alaska 1986); Ogden v. Ogden, 39 P.3d 513 (Alaska 2001); Berry v. Berry, 277 P.3d 771 (Alaska 2012).

Stated in

Glover v. Ranney, 314 P.3d 535 (Alaska 2013); Ruppe v. Ruppe, 358 P.3d 1284 (Alaska 2015); Maxwell v. Sosnowski, 420 P.3d 1227 (Alaska 2018); Schikora v. Schikora, — P.3d — (Alaska Sept. 12, 2018) (memorandum decision).

Cited in

Otton v. Zaborac, 525 P.2d 537 (Alaska 1974); Gutterman v. First Nat'l Bank, 597 P.2d 969 (Alaska 1979); Batey v. Batey, 933 P.2d 551 (Alaska 1997); Dunn v. Dunn, 952 P.2d 268 (Alaska 1998); Monette v. Hoff, 958 P.2d 434 (Alaska 1998); Martin v. Martin, 52 P.3d 724 (Alaska 2002); Silvan v. Alcina, 105 P.3d 117 (Alaska 2005); Lawson v. Lawson, 108 P.3d 883 (Alaska 2005); Carr v. Carr, 152 P.3d 450 (Alaska 2007); Haines v. Cox, 182 P.3d 1140 (Alaska 2008); Ethelbah v. Walker, 225 P.3d 1082 (Alaska 2009); Morris v. Horn, 219 P.3d 198 (Alaska 2009); Pestrikoff v. Hoff, 278 P.3d 281 (Alaska 2012); Fernandez v. Fernandez, 312 P.3d 1098 (Alaska 2013); Dundas v. Dundas, 362 P.3d 468 (Alaska 2015); Thomson v. Thomson, 394 P.3d 604 (Alaska 2017).

II.Child Support

The trial court is given broad discretion in fashioning suitable visitation rights and support obligations. Curgus v. Curgus, 514 P.2d 647 (Alaska 1973).

“Just and proper” contribution. —

Civil Rule 90.3, regarding child support awards, does not modify or amend this section, but the rule interprets the code section and establishes guidelines to enable courts to detemine what is a “just and proper” contribution. Coghill v. Coghill, 836 P.2d 921 (Alaska 1992).

Determination of amount. —

Child support is to be equitably assessed based on both parents’ ability to meet the reasonable needs of the children. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Adjustment for inflation. —

Approving an adjustment of support obligations to keep pace with inflation enables the court to put the interests of the child first. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Linking the adjustment of support obligations to an accepted and reliable indicator such as the Cost of Living Index simply maintains the buying power of support payments at the same level as the original award; the father’s argument, that the built-in adjustment impermissibly shifts the burden of proving changed circumstances to the non-custodial parent was without merit; a built-in adjustment enables the court to put the interests of the child first. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Post-majority education. —

The court was not convinced that the legislature intended to provide for post-majority educational support in either an original decree or in a modification of the original decree, and to the extent Hinchey is inconsistent with this conclusion it was overruled. Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

The rule of Dowling v. Dowling, 679 P.2d 480 (Alaska 1984), is clear and cannot be ignored: When a husband and wife with children divorce the court cannot require either parent to pay for post-majority college education. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Handicapped adult child. —

The divorce court has the authority to award continuing support payments for a handicapped adult child. Streb v. Streb, 774 P.2d 798 (Alaska 1989).

The award for a handicapped adult should be reasonably calculated to reimburse the moving party for a fair percentage of funds actually spent on reasonable child care expenditures. Streb v. Streb, 774 P.2d 798 (Alaska 1989).

Stepchild. —

One exception to the rule that a stepparent has no duty to support a stepchild occurs where the stepparent has made an express written or oral agreement to support the stepchild, where such agreement is enforceable under that law. Dewey v. Dewey, 886 P.2d 623 (Alaska 1994).

Non-biological offspring. —

Where appellant claimed that the youngest child born during his marriage was not his biological son, but had voluntarily filed documents with the superior court listing the son as his child after paternity was disestablished, the court did not err by including the son in its calculation of his monthly child support obligation. Ray v. Ray, 115 P.3d 573 (Alaska 2005).

Maintenance of insurance. —

Because a divorce can raise special concerns about the financial support of children, the Alaska supreme court approved the use of insurance as security for a support obligation where appropriate; however, the provision in a trial court’s order requiring maintenance of an insurance policy until a child graduated from college or reached 25 years apparently was designed to insure payments for post-majority college costs and was modified to require maintenance of insurance until the child reached 18. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Payments voluntarily made to the children are not to be credited against child support obligations. The rationale is that such voluntary payments to the children quite often are intended for particular purposes whereas the manner in which child support payments are used to meet the children’s basic needs is left to the discretion of the parent or guardian with custody. Young v. Williams, 583 P.2d 201 (Alaska 1978).

When a defendant husband is required by a divorce decree to pay to the plaintiff money for the support of the children, and the unpaid and accrued installments become judgments in favor of the plaintiff he cannot, as a matter of law, claim credit on account of payments voluntarily made directly to the children, though special considerations of an equitable nature may justify a court in crediting such payments on his indebtedness to the plaintiff when that can be done without injustice to the plaintiff-wife. Young v. Williams, 583 P.2d 201 (Alaska 1978).

Agreement not enforceable. —

Husband’s agreement to pay child care expenses in addition to child support was conditioned on his not being assessed spousal support; because spousal support was awarded to the wife, the agreement regarding child care expenses was not enforceable. Novak v. Novak, — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Noncustodial parent's voluntary reduction of income. —

A noncustodial parent who voluntarily reduces his or her income should not automatically receive a corresponding reduction in his or her child support obligation. Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled, Nass v. Seaton, 904 P.2d 412 (Alaska 1995).

When a noncustodial parent voluntarily reduces his income, the judge should consider the nature of the changes and the reasons for the changes, and then determine the appropriate child support award. Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled, Nass v. Seaton, 904 P.2d 412 (Alaska 1995).

Credit. —

Husband was not entitled to credit against interim support payments for mortgage payments on the marital home, after the wife no longer lived there, because (1) the payments were no longer part of the wife's expenses, and, (2) once the husband occupied the home, granting him such a credit would inequitably allow him to live in the home for free. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Credit for wages paid to son. —

The superior court abused its discretion in denying credit against defendant’s support obligation for $800.00 in payment to his son as wages for services rendered in constructing a fence. Young v. Williams, 583 P.2d 201 (Alaska 1978).

Award excessive. —

Where the wife’s investment income was not as great as the husband’s income, it did not justify placing the entire burden for out-of-pocket child support expenses on him; he might have to carry a greater burden, but not the total burden. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Expenses beyond reasonable need were son’s summer hockey camp, daughter’s gymnastics class that daughter was not enrolled in, and yearly expense for three-year-old daughter’s psychotherapy sessions when the treatment would have only taken about six months. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Child support award held inadequate. —

Child support award to wife for two children was inadequate where the wife had no income, was required to pay $100 per month in child support to the husband, and would have to invade her equities to maintain the children’s accustomed standard of living. Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985).

Review of child support awards. —

As in other cases where discretionary authority is involved, the supreme court shall not reverse the trial court in the absence of the showing of an abuse of discretion, and it shall not find an abuse of discretion unless it is left with the definite and firm conviction on the whole record that the judge made a mistake in awarding the child support he did. Brenton v. Brenton, 564 P.2d 1225 (Alaska 1977); Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Trial court must disclose calculations. —

A trial court abused its discretion in failing to disclose the actual numbers it used to calculate a child support award. Terry v. Terry, 851 P.2d 837 (Alaska 1993).

Under former paragraph AS 9.55.210(5) concerning appointment of trustees , the burden of proof regarding defendant’s ability to comply with a court order of support should remain with the defendant. Johansen v. State, 491 P.2d 759 (Alaska 1971); Public Defender Agency v. Superior Court, Third Judicial Dist., 534 P.2d 947 (Alaska 1975); Johnson v. Johnson, 544 P.2d 65 (Alaska 1975).

Remand required. —

Where throughout the trial, wife argued that $350 per month child support was adequate, while husband maintained that it was excessive, award to wife for more than she asked required remand for a hearing in the absence of anything in the record explaining the award. Smith v. Smith, 673 P.2d 282 (Alaska 1983).

Trial court erred in considering the needs of a divorcing couple’s children when making an unequal distribution of property, where findings were required as to why the needs of the children could not be met with child support alone. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

Where husband lacked notice and an opportunity to be heard on the issue of premarital child support arrearage when the wife first raised the issue during final argument, the superior court’s order for premarital child support had to be remanded because it violated the husband’s due process rights. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

Mortgage payment as children's standard of living. —

The superior court properly treated the custodial parent’s monthly mortgage expenses as a constituent part of “the standard of living of the children” under Rule 90.3(c)(2) when awarding an adjustment to the base amount. Moore v. Moore, 893 P.2d 1268 (Alaska 1995).

Failure to consider value of equity accumulated in joint family residence during marriage as marital asset. —

Where parties contributed from their salaries to mortgage payments on the house owned by the husband prior to the marriage, and both actively participated in the management and maintenance of the property during the 11-year marriage, the trial court erred in characterizing the property as the husband’s separate asset. Burgess v. Burgess, 710 P.2d 417 (Alaska 1985).

III.Alimony

Property disposition favored over alimony. —

Courts should be encouraged to provide for the financial needs of spouses by a property disposition rather than by alimony. Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

This section authorizes an award of alimony after a divorce decree has been entered, even though the original decree is silent on the subject. Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Alimony defined. —

Alimony is an allowance a husband is required to pay his wife for her maintenance following or pending her divorce or legal separation from him. It may also include an award made for the support of minor children. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Alimony is in no way a property settlement, but is the provision made for the support of the wife. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

“Maintenance,” as that term is used in this section, is synonymous with “alimony.” Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Who may receive alimony. —

Permanent alimony may, in the discretion of the court, be allowed to either the husband or wife. Olsen v. Olsen, 5 Alaska 459 (D. Alaska 1916).

The duty to pay alimony, as well as support money for children, is public in nature. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

And allowance requires court action despite contract. —

Although parties may contract as between themselves concerning the amount of alimony, the allowance of alimony is incidental to the divorce procedure and requires the court’s intervention to give it validity. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

When a husband brings suit for divorce, granting alimony to the wife is almost a matter of course, for the presumption of the law is that she has no separate means, as the husband usually holds the purse strings. Van Atta v. Van Atta, 6 Alaska 266 (D. Alaska 1920).

The statutory standards for an alimony award are that it be “just and necessary.” Messina v. Messina, 583 P.2d 804 (Alaska 1978).

No alimony where property provides support. —

An award of permanent alimony should not be made where the court can provide for the reasonable needs of the spouse seeking alimony from the property available for division in a divorce proceeding. Where property can provide support, alimony is neither just nor necessary. Hilliker v. Hilliker, 755 P.2d 1111 (Alaska 1988).

Factors to be considered in award. —

The principal factors to be considered by the trial court in resolving property division and alimony issues are: The respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time, and its income producing capacity if any. Groff v. Groff, 408 P.2d 998 (Alaska 1965); Stroecker v. Stroecker, 428 P.2d 384 (Alaska 1967); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Schoning v. Schoning, 550 P.2d 373 (Alaska 1976); Hager v. Hager, 553 P.2d 919 (Alaska 1976); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

In determining whether separate property acquired before marriage should be invaded, the court should particularly consider factors such as the duration of the marriage, the conduct of the parties during the marriage, the manner of acquisition of the property, its value at the time of acquisition and at the time of the property division, and any other factors bearing on whether the equities dictate that the other spouse is entitled to share in that property. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975).

Courts making property divisions should consider each spouse’s relative contributions to the marriage, whether of a pecuniary or of a more intangible nature. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

A spousal support judgment in favor of the wife was not void due to lack of due process when the judgment was entered because the husband had notice that spousal support would be addressed, he knew the wife’s mental state and indigence would be relied on for an award, and a pretrial order explicitly included spousal support as a trial issue. The husband was not barred from discovering the wife’s finances or mental state, and his failure to conduct discovery did not mean his due process notice was insufficient. Blaufuss v. Ball, 305 P.3d 281 (Alaska 2013).

But such factors are not substitutes for statutory standard. —

The factors to be considered in an alimony award are the same as those that are relevant where the sole issue is the division of marital property but, while those factors, which the supreme court has set out in various cases, do supply some guidance as to when and to what extent alimony is “just and necessary,” they are not substitutes for the statutory standard, nor are they all that should be said about the standard. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

Failure to address any of the relevant statutory factors resulted in remand to consider subparagraph (a)(4)(A) through (I) with particular emphasis to the earning capacities and health of parties, and the income producing capacity of properties. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Considerations in determining whether to award alimony. —

Section 308 of the Uniform Marriage and Divorce Act and the comment pertaining thereto should be considered, together with the factors mentioned in such cases as Schoning v. Schoning, 550 P.2d 373 (Alaska 1976), in determining when it is necessary and just that alimony be awarded. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

Section 308 of the Uniform Marriage and Divorce Act, approved by the National Conference of Commissioners on Uniform State Laws and recommended for passage by the states by the American Bar Association, provides for alimony only if the spouse seeking maintenance: (1) lacks sufficient property to provide for his reasonable needs; and (2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian may not be required to seek employment outside the home. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

The comment pertaining to these provisions states that the intention of the provisions of the Uniform Marriage and Divorce Act relating to alimony is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered. Messina v. Messina, 583 P.2d 804 (Alaska 1978).

It was not an abuse of discretion to award the wife spousal support where the court properly considered a number of the statutory factors, including difference in annual gross income and the effect of the wife’s upcoming surgery on her income; there was no indication that the wife’s injuries from a car accident or her work-related injuries affected the award. Novak v. Novak, — P.3d — (Alaska Aug. 26, 2015)(memorandum decision).

Further findings were required as to an alimony award because (1) the court did not find if a greater allocation of the marital estate would meet a wife's needs, and (2) it was error to defer to the wife's preference to receive alimony instead of a larger share of the marital estate. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Significant health issue. —

It was no error to award a wife alimony without finding the wife's significant health issue because such a finding was not required. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Income of wife is a factor to be taken into account in finding the amount of alimony and maintenance. Olsen v. Olsen, 3 Alaska 616 (D. Alaska 1909).

Sizable award requires careful inquiry. —

When a spouse’s disabilities and lack of work experience make the alimony award sizable, it is imperative that the trial court inquire into the specific needs of the recipient spouse before making the award. Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

Improper basis for denial of award. —

If the superior court felt it could not award spousal support due to the denial of the ex-wife’s first motion for relief from judgment, this was error; the order denying the first motion for relief from judgment had nothing to do with whether the legal separation property division was fair and equitable. Bulger-Post v. Post, — P.3d — (Alaska Apr. 8, 2015)(memorandum decision).

Trial court is vested with broad discretion in making alimony determinations and where there is no clear abuse of that discretion the supreme court will not interfere. Faro v. Faro, 579 P.2d 1377 (Alaska 1978).

Temporary forms of alimony preferred. —

Either rehabilitative alimony or reorientation alimony where appropriate is, in general, to be preferred to permanent alimony because it is generally undesirable to require one person to support another on a long-term basis in the absence of an existing legal relationship. Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

Rehabilitative designation. —

Designation of alimony award as rehabilitative did not limit the award to rehabilitation. By awarding wife alimony to aid her in preparing for the job market and to help her organize her portion of the marital estate assets, the superior court effectively awarded wife both rehabilitative and reorientation alimony. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Rehabilitative alimony. —

Wife's rehabilitative alimony award was not required because it was no longer feasible for the wife to return to school. Hockema v. Hockema, 403 P.3d 1080 (Alaska 2017).

Reorientation and rehabilitative awards of alimony permissible. —

Although reorientation and rehabilitative alimony serve separate goals, require different findings, and are consequently distinct forms of temporary support, they are not necessarily mutually exclusive; in some instances, when supported by the record, both may be appropriate. Davila v. Davila, 876 P.2d 1089 (Alaska 1994).

Rehabilitative alimony award held abuse of discretion. —

Trial court’s award of rehabilitative alimony was an abuse of discretion where the wife had a college degree and was employed at the time of the trial, and she disclaimed any need for or intent to seek retraining. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Rehabilitative alimony award not clearly unjust. —

Wife was not required to improve her skills during the parties separation from 1975 to 1979 because the parties did not consider their marriage ended in 1975. Thus an award of rehabilitative alimony for one year was not unjust. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

No abuse of discretion in alimony award. —

Where the trial court included in its calculations of the effect of taxes or payments received by the parties from the sale of an asset, and that alimony would be a deduction from the husband’s income and taxable to the wife, the award of alimony was not clearly unjust. Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Superior court did not abuse its discretion in awarding the wife $600 per month for 31 months as temporary rehabilitative support, where the husband was a well paid city employee and the wife had few job skills and no assets with which to provide for herself and her children while she attended college. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

There was nothing inappropriate in the court considering the wife’s need to support her son from a former marriage in awarding reorientation alimony. Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

An award of $5,500 in cash for reorientation to be taken out of husband’s retirement account may violate the preference for property division over alimony. However, because this amount comes from the same source and is a one time payment, regardless of how it is labeled, any error is harmless. Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

An award that extended for nearly 7 years was too long to qualify as reorientation alimony, but it was supported by findings that wife’s earning capacity was greatly decreased and that she suffered from a number of health problems. Gallant v. Gallant, 945 P.2d 795 (Alaska 1997).

The court did not abuse its discretion in making an award of spousal support without accounting for the investment value of the marital home, and without characterizing a portion of the maintenance payments as rehabilitative alimony contingent upon the wife’s enrollment in vocational training. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

Where the court’s order of reorientation alimony mirrored the plaintiff’s request, and where the appellate court had directed the trial court to adjust its property distribution to further the goal articulated in its findings of awarding her the greater share of the marital assets, there was no abuse of discretion in setting the alimony award. Tollefsen v. Tollefsen, 981 P.2d 568 (Alaska 1999).

Since a court may award alimony of indefinite duration when it is just and necessary, there was no abuse of discretion where the court carefully considered the evidence in light of the statutory factors and justified a long-term award on the basis of the wife’s lack of work experience, her responsibilities as her child’s primary custodial parent, her deafness, her lack of job prospects, and her limited ability to retrain for employment. Hammer v. Hammer, 991 P.2d 195 (Alaska 1999).

Spousal support award was not an abuse of discretion because the court’s findings that the husband had surplus income and that the wife was accruing a deficit were not clearly erroneous; the award would provide both parties with a monthly income that would allow them to meet their anticipated monthly expenses. Urban v. Urban, 314 P.3d 513 (Alaska 2013).

Spousal support required to allocate economic effect. —

Economic effect of the legal separation property division unfairly favored the ex-husband, and as there was no litigation of the underlying property division issues in the legal separation proceeding because the ex-wife did not participate, the legal separation court’s conclusion that the property division was equitable should not have been given any preclusive effect; the superior court was bound to follow the statutory requirement to fairly allocate the economic effect of divorce, which required an award of spousal support in this case. Bulger-Post v. Post, — P.3d — (Alaska Apr. 8, 2015)(memorandum decision).

Substantial evidence to support award. —

Substantial evidence in support of the trial court’s finding that the spouse awarded alimony was not employable justified award of permanent alimony. Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

Rehabilitative alimony improperly denied. —

The trial court did not adequately explain its decision with specific findings to eliminate rehabilitative alimony in favor of an increased award of reorientation alimony, where spouse had expressly requested rehabilitative alimony to assist her in obtaining a college degree and had provided specific information to support her request. Davila v. Davila, 876 P.2d 1089 (Alaska 1994).

Bankruptcy will not relieve a husband of his obligation to make alimony payments. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Contempt proceedings will lie for the wilful refusal of a husband to pay alimony. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Conveyance by husband to prevent alimony is fraudulent. —

A conveyance made by the husband in anticipation of the wife’s libel for divorce, and to prevent her from recovering alimony, is fraudulent, and may be set aside unless the purchaser took without notice and for value. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

If grounds for divorce existed before conveyance. —

Where a wife can establish her right to a divorce, she is also entitled to have set aside any conveyance previously made by her husband with a fraudulent intention of depriving her of her right to alimony, but the cause of suit in her behalf, according to the authorities, must have arisen prior to the time of the alleged conveyance. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Divorce decreed to wife establishes wife's right to attach conveyance. —

The right of a woman to question a conveyance made by her husband can never arise until the decree of divorce, which establishes the fact that she had a cause of suit against her husband, and fixes the time when the cause of suit arose, is made; whenever that decree is made by a court of competent jurisdiction, it arms the injured wife with power to call in question the validity of any conveyance made by her husband after the cause of suit arose. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

And alimony decree makes wife creditor for such purpose. —

A judgment or decree awarding alimony to the wife is sufficient to establish her rights as a creditor of the husband to impeach a conveyance made by him with intent to defraud her of the alimony. Ellis v. Ellis, 8 Alaska 373 (D. Alaska 1933).

Retirement terminated agreement. —

A financial agreement entered into when parties petitioned to dissolve their marriage provided for permanent spousal support, terminable only on wife’s death or remarriage, terminated on husband’s voluntary retirement. Keffer v. Keffer, 852 P.2d 394 (Alaska 1993).

Husband’s retirement was not voluntary because his job was abolished and he was eligible for retirement and took it. Keffer v. Keffer, 852 P.2d 394 (Alaska 1993).

Spousal support based on retired obligor's usual salary. —

In a dispute over a property settlement agreement, the extrinsic evidence offered by the former wife showed that the proper interpretation of the word “income” was an amount comparable to the former husband’s usual dentistry salary; therefore, he was required to pay her spousal support for five years based on his dentist salary, even if he retired. Burns v. Burns, 157 P.3d 1037 (Alaska 2007).

Obligation to pay alimony terminates on death of obligor absent contrary provision. —

Absent a specific agreement or decree provision to the contrary, the obligation to pay alimony terminates upon the death of the obligor. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

But contract may create obligation binding on estate. —

Parties in a divorce proceeding may undertake by contract to create an obligation to pay alimony binding on the obligor’s estate and successors. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

Burden of establishing intention that obligation continue. —

In the absence of unequivocal terms, the burden should be upon the recipient of the alimony to establish the parties’ intention that the obligation continue after the death of the obligor. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

Obligation not enforceable against decedent's estate. —

Obligation of the decedent to make alimony payments pursuant to a property settlement agreement in which there was a failure to expressly provide for continuation of alimony payments after death was not enforceable against the decedent’s estate. Estate of Kuhns v. Kuhns, 550 P.2d 816 (Alaska 1976).

Alimony award reversed. —

Alimony award was reversed on the ground that a property division adequately satisfied the spouse’s financial needs; there is a preference for satisfying a spouse’s financial needs with a property division. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986).

IV.Division of Property
A.In General

Property division generally. —

Paragraph (a)(4) grants the trial court broad discretion in fashioning a property division in divorce actions, and empowers the trial court to divide all property acquired during the marriage and to invade separate property of either spouse if a balancing of the equities so requires. The supreme court will not disturb a division made within the parameters of the statute unless it is clearly unjust, but whether the trial court applied the appropriate legal standards in exercising its broad discretion is a question of law regarding which the supreme court may substitute its independent judgment on appeal. Laing v. Laing, 741 P.2d 649 (Alaska 1987).

Paragraph (a)(4) places all property acquired during the marriage, whether joint or separate, before the court for purposes of division, and also authorizes invasion of premarital holdings when the balancing of the equities between the parties requires it. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

All property acquired during the marriage is available for distribution, excepting only inherited property and property acquired with separate property which is kept as separate property. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

Alaska law provides that the divorce court has the power to reorder the pre-dissolution interests of the parties as required for an equitable result, even if this requires the court to invade the pre-marital property of one spouse for the benefit of the other. Yerrington v. Yerrington, 144 B.R. 96 (B.A.P. 9th Cir. Alaska 1992), aff'd, 19 F.3d 32 (9th Cir. 1994).

Trial court correctly classified certain property as gifts and, given the minor amount in controversy and the size of the estate, any error in classifying the disputed property would have had a negligible effect on equitable distribution. The case involved a total marital estate valued at over $2.8 million and the gifts in dispute represented less than .05 percent of the estate. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Home acquired prior to marriage not transmuted to marital property. —

Superior court erred in finding in its property division order that the condominium at issue had transmuted into the couple's marital property because the condominium was originally the husband's separate property and the evidence at trial did not demonstrate that the husband intended to donate the condominium to the marital estate where the wife's unexplained and unilateral belief that she was investing in the property by making other contributions to the marriage was not evidence of the husband's donative intent, and the couple's use of the property as the marital residence showed only that the condominium served an important marital purpose. Kessler v. Kessler, 411 P.3d 616 (Alaska 2018).

Property disposition favored over alimony. —

Courts should be encouraged to provide for the financial needs of spouses by a property disposition, rather than by alimony. Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

The rule establishing a preference for meeting the parties’ needs with the division of property, rather than alimony, where the marital assets are adequate to do so, does not apply to rehabilitative alimony or support of limited duration. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

Division without regard to fault. —

Tension between paragraph (a)(4), property to be divided without regard to fault, and subparagraph (E) thereof, conduct of parties to be considered, is resolved by construing “fault” in paragraph (a)(4) to refer to moral or legal misconduct which has led to the failure of the marriage, but not to economic misconduct which has unreasonably depleted marital assets. Jones v. Jones, 942 P.2d 1133 (Alaska 1997).

It was not error to consider a father's criminal conviction when dividing marital property because (1) the court was required to consider the parties' conduct, (2) the court properly found, when considering the circumstances and necessities of each party, that the father's conviction, which limited the father's earning capacity, was a “self-inflicted wound,” and (3) the court was only barred from considering moral or legal misconduct which led to the failure of the marriage. Jerry B. v. Sally B., 377 P.3d 916 (Alaska), modified, — P.3d — (Alaska 2016).

Presumption favoring equal division. —

In the absence of findings to warrant an unequal division, an equal division of the marital estate is presumptively the most equitable. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

An equal division of marital property is presumptively just. Berry v. Berry, 978 P.2d 93 (Alaska 1999).

In determining the equitable distribution of marital property, the court adequately considered the parties’ 12-year age difference. The trial court was aware of the difference and that the husband’s anticipated age of retirement was approaching; however, with the husband’s high salary he could readily make up for the unequal property division by increased savings over his remaining work life, or by working one additional year beyond his planned retirement. Cartee v. Cartee, 239 P.3d 707 (Alaska 2010).

Lump sum award to equalize property division held proper. —

Trial court did not abuse its discretion in a divorce proceeding by requiring a spouse to make a lump sum payment to equalize the property division because the divorce judgment statute did not require installment payments as part of the division of the marital estate. Rasmussen v. Rasmussen, — P.3d — (Alaska Mar. 18, 2015) (memorandum decision).

Superior court properly awarded, inter alia, a husband a fourplex and a mobile home park that he had owned before marriage and that were later included in the parties' revocable trust and awarded a large equalization payment to the wife because, despite the parties' arguments, the husband failed to overcome the evidentiary presumption that arose once he directed his separate income into the joint account, and the court considered the four statutory factors to achieve an equitable division of the property. Phillips v. Bremner-Phillips, 477 P.3d 626 (Alaska 2020).

Extraordinary circumstances inapplicable. —

Allegation of extraordinary circumstances under Civil Rule 60(b)(6) did not justify relief that effectively would have given former husband rent-free occupancy of the marital home for nine years; nor did delay in sale of the home and former wife’s alleged refusal to cooperate with a potentially beneficial refinancing appear to be extraordinary circumstances justifying relief under the rule. Knutson v. Knutson, 973 P.2d 596 (Alaska 1999).

Award facilitating career training. —

Property awards made with the purpose of facilitating career training are distinct from rehabilitative alimony awards, and should be analyzed by the trial court under the property division statute, not the rehabilitative alimony standard. Cartee v. Cartee, 239 P.3d 707 (Alaska 2010).

Presuming sufficient property to provide for needs. —

Policy of encouraging trial courts to provide for parties’ financial needs by property disposition rather than by alimony presumes that there is sufficient property to provide for the parties’ needs. Dixon v. Dixon, 747 P.2d 1169 (Alaska 1987).

Property rights may be adjudicated without prayer. —

The court has full power to adjudicate the property rights of the parties to a divorce action even though the plaintiff has not specifically prayed for such relief. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962).

All property of the parties, both separate and joint, is before the court for disposition in a divorce action. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962).

Reopening divorce decree to award individual fishing quotas. —

Where quota shares and inidividual fishing quotas were awarded after the decree of dissolution was entered, but were based on the couple’s vessel’s activity during the marriage, the quota shares were divisible marital property; thus the court did not err in granting the wife’s Rule 60(b) motion to modify the decree. McGee v. McGee, 974 P.2d 983 (Alaska 1999).

Valuation is factual determination. —

A trial court’s valuation of marital property is a factual determination. Rice v. Rice, 757 P.2d 60 (Alaska 1988).

Time of valuing property. —

Valuing property on the date of separation rather than the date of divorce was not error, as the parties had not comingled their financial affairs since their separation, which was thus a convenient and appropriate time at which to value the marital property for division. Nelson v. Nelson, 736 P.2d 1145 (Alaska 1987).

The date on which the trial court values marital property generally should be as close as practicable to the date of trial. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

In special situations, the trial court may value marital property as of the date of separation of the parties. However, in that event, there should be specific findings as to why the date of separation is the more appropriate choice for valuation. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

Property should be valued for division purposes at the date of trial rather than the date of separation. However, the separation date may be used when special circumstances of the case demonstrate that a truly fair and appropriate property evaluation and division of assets cannot otherwise be achieved. Thomas v. Thomas, 815 P.2d 374 (Alaska 1991).

The husband’s payment of the mortgage on the marital home between the date of separation of the parties and the trial date did not constitute a special circumstance warranting valuation of the property at the time of separation rather than the trial date. Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Ordinarily, the date of valuation of a home, which may be distinct from the date employed to distinguish marital from post-marital property, should be as close as practicable to the date of trial. This is to provide recent rather than stale financial valuations. The date for distinguishing marital from post-marital property, however, is the date of separation. Brown v. Brown, 914 P.2d 206 (Alaska 1996).

While the date for classification of property is that of separation, the proper date for valuation is one as close as practicable to that of trial, and the trial court’s valuation of the the husband’s 401(k) plan at the time of separation deprived the wife of the interest earned on the marital share of the plan. Leis v. Hustad, 22 P.3d 885 (Alaska 2001).

In a divorce action, the trial court abused its discretion under this section when it valued the couple’s marital house at the time of their separation rather than at the date of the trial because (1) the fact that the parties ceased operating as an economic unit merely marked the date of separation and was not a reason for valuing marital property at the date of separation; (2) the fact that an appraisal of the house was made at the date of separation was irrelevant both because a more recent appraisal was also made and because the first appraisal was just the sort of stale financial information that the time of trial rule was meant to eschew; and (3) the deceptive conduct of the husband in obtaining title to the house just prior to the separation did not justify defeasing a part of the husband’s interest in the house, including the husband’s interest in its appreciation. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

In a divorce proceeding, it was error to value the parties’ real property as of the date of the first day of trial when the second and final trial day occurred over one year later. By varying from the Ogard rule and choosing an earlier valuation date, the trial court assigned the parties’ Arizona home an artificially high value. Stevens v. Stevens, 265 P.3d 279 (Alaska 2011).

Trial court erred in valuing the mortgage on a marital home as of the time of separation rather than the time of trial; the husband’s post-separation mortgage payments did not justify an earlier valuation date. Beals v. Beals, 303 P.3d 453 (Alaska 2013).

Fair market value as valuation index. —

Fair market value, rather than purchase price values, was the appropriate index of valuation for the parties’ personal property. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

Valuation by parties. —

A trial court is not bound by a buy-sell agreement valuation, but may consider such a valuation, especially when it is supported by other valuation methods. Money v. Money, 852 P.2d 1158 (Alaska 1993).

The rescission approach to property division was not appropriate as the parties owned a home together and maintained joint bank accounts and credit cards; the parties had already stipulated to the value of the home and agreed that the stipulated value would be used in the property division; and the court was not required to consider the higher value suggested by the appraisal that was completed pursuant to the wife’s refinancing of the home. Novak v. Novak, — P.3d — (Alaska Aug. 26, 2015) (memorandum decision).

Valuation of post-retirement military medical benefits.—

For purposes of AS 25.24.160 , the superior court failed to value the husband's post-retirement medical benefits for purposes of an equitable division and distribution of the marital estate; the order that the husband pay the wife an amount to enable her to purchase an equivalent policy did not qualify as a valuation and could not substitute for an appropriate equitable distribution of the marital estate, and this amounted to reversible error. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

For purposes of AS 25.24.160 , the husband entered the military six months before the marriage, and on remand the superior court was to recalculate the portion of the husband's military medical benefits earned during the marriage; otherwise, the superior court correctly characterized the husband's post-retirement medical benefits as marital. Grove v. Grove, 400 P.3d 109 (Alaska 2017).

Evidence of valuation. —

Where a party identifies a significant marital asset but presents no evidence as to its value, the best practice is for the trial court to direct the parties, or the delinquent party having the best access to the proof, to fill the evidentiary void. Root v. Root, 851 P.2d 67 (Alaska 1993).

It was clear error for the court to rely on a possible but uncertain future stock valuation when very recent evidence of the stock’s actual value was available: approximately two weeks before trial, the company purchased another shareholder’s capital stock for $206,600, at $1,033 per share. That was essentially contemporaneous evidence of the validity of the existing share price in the husband’s stock agreement and the actual value of the capital stock. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).

Two property tracts were marital property because those tracts were acquired during premarital cohabitation and the parties’ actions showed an intent to develop and operate the properties jointly. However, the court’s valuation of the tracts was improper where it was based only on assessed value and application of an arbitrary formula to account for improvements. It is the duty of the court to require parties to provide evidence of actual value of their property. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Superior court's valuation of the husband's tools was well within the range supported by the evidence because the court was faced with conflicting evidence suggesting a value for the tools somewhere between $13,340 and $100,000; the evidence included testimony by an expert appraiser hired by the estate; tax returns showing write-offs for tool purchases; the husband's will; the testimony of the wife's son (a mechanic who worked with the husband); and the testimony of the husband's friends. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Valuation of damaged property. —

Supreme court agreed with a husband that in the face of undisputed testimony that certain items of his property were ruined, assigning any value to the ruined property was clearly erroneous. Pasley v. Pasley, 442 P.3d 738 (Alaska 2019).

Buying out spouse's interest in marital home. —

It was error for trial court to look to mortgage debt at the time of dissolution rather than at the time of sale, and to fail to divide an equity withdrawal, in calculating the amount one former spouse was required to pay the other to buy out interest in the marital home. Knutson v. Knutson, 973 P.2d 596 (Alaska 1999).

Division where assets unreasonably depleted. —

The proper method for dealing with an unreasonable depletion of marital assets would be for the trial court to recapture the proven losses by adding their value to the marital estate before making the equitable division and then crediting that part of the value to the account of the party responsible for the unreasonable depletion. Jones v. Jones, 942 P.2d 1133 (Alaska 1997).

A party must point to more than the fact that her spouse spent excess funds during marriage and cannot account for those funds to support a finding that marital assets were unreasonably depleted. Elliott v. James, 977 P.2d 727 (Alaska 1999).

It was not error for the trial court to value the marital account for purposes of dividing it between the parties at the time the parties separated, as opposed to the time of trial, because there was evidence that the husband had improperly used the account to purchase items that depreciated in value and had completely depleted the account at the time of trial. Miller v. Miller, 105 P.3d 1136 (Alaska 2005).

It was not error to impute continuing interest to former husband in a portion of marital property, in light of conduct that constituted intent to engage in economic misconduct, either fraud or massive waste, where evidence showed that he had executed a quitclaim deed on out-of-state investment property to his brother to protect his share in the real estate from the threat of division, and showed apparent willful waste of marital assets or a sham transaction designed to conceal a continuing interest in the property. Forshee v. Forshee, 145 P.3d 492 (Alaska 2006).

Superior court did not abuse its discretion in dividing the marital estate equally as the ex-husband did not unreasonably deplete the parties' marital assets because the loans taken out on the husband's 401(k) during the marriage were for legitimate marital purposes; and the proceeds derived from the sale of a home to the ex-wife's son were used for legitimate marital purposes. Gambini v. Hamilton, 440 P.3d 184 (Alaska 2019).

Recapture of marital assets. —

Superior court erred in classifying two vehicles as marital assets and in awarding them to the wife as the husband's daughter had title to the vehicles by the time of trial; the superior court did not produce an order of recapture including factual findings that the vehicles were actually converted to non-marital form; and, although the court made a finding that the husband's children (the beneficiaries of his estate) attempted to hide and sell marital assets prior, the court did not specify which particular assets were hidden and sold. On remand, the superior court would have to make specific factual findings regarding whether the assets were converted to non-marital form and, if so, whether it was recapturing them. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

The division of property in a divorce action involves a three-step process; the court 1) determines what property is available for distribution, 2) values the property, and 3) determines the most equitable allocation. Carlson v. Carlson, 722 P.2d 222 (Alaska 1986); Jones v. Jones, 835 P.2d 1173 (Alaska 1992).

When a marriage is of long duration or assets are commingled, the correct method of property division involves (1) identifying the specific property available for distribution, (2) determining the value of this property, and (3) determining the most equitable division of the property, beginning with the presumption that an equal division is most equitable. Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Trial courts must follow a three-step process in equitably dividing marital property: (1) the court determines what property is available for distribution; (2) the court values the property; and (3) the court equitably divides the property. If at the third step the court finds that an equitable division is not possible using the marital property alone, then the court must determine whether invasion of separate property is necessary to balance the equities. If invasion is necessary, then the court must determine what separate property the parties own, value it, and adjust the initial division as needed. Murray v. Murray, 856 P.2d 463 (Alaska 1993).

Classification of property. —

In a divorce proceeding, the husband failed to meet his burden of tracing $50,500 he had withdrawn from certificates of deposit back to a separate property source; therefore, the trial court did not err by characterizing the certificates of deposit as marital property. Bilbao v. Bilbao, 205 P.3d 311 (Alaska 2009).

Superior court properly concluded that a house was marital property where it was purchased during the marriage, and the husband failed to offer any evidence in support of his claim that the down payment on the home came from non-marital funds. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

It was error to classify the Missouri property as completely separate and the associated debt as marital because, although marital funds used to reduce the principal debt on the Missouri property created a marital interest in the property that was subject to equitable division in divorce, the evidence indicated the Missouri property decreased in value by over $3,000 between 2011, when the wife received the property from her parents, and the date of trial. On remand, the superior court had to determine how that depreciation affected the marital interest in the property. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Classification of property. —

In a divorce proceeding, the husband failed to meet his burden of tracing $50,500 he had withdrawn from certificates of deposit back to a separate property source; therefore, the trial court did not err by characterizing the certificates of deposit as marital property. Bilbao v. Bilbao, 205 P.3d 311 (Alaska 2009).

Superior court properly concluded that a house was marital property where it was purchased during the marriage, and the husband failed to offer any evidence in support of his claim that the down payment on the home came from non-marital funds. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018) (memorandum decision).

Classification of property constitutes tool for equitable distribution. —

Process of classifying marital property in a divorce is not an end in itself but simply serves to inform the trial court’s decision on the ultimate issue of what constitutes an equitable distribution of the marital estate. Because the trial court exercises broad discretion in making its final equitable determination, a classification error will result in prejudice only when it appears that the error probably had an appreciable effect on the ultimate determination of equitable distribution. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

“Source of funds” approach to classification. —

Under the “source of funds” approach, property is classified according to the classification of the funds used to purchase it. Property purchased on debt is classified according to the funds used to pay off the debt. The source of funds rule, although not adopted per se in this jurisdiction, is not inconsistent with this section. Zimin v. Zimin, 837 P.2d 118 (Alaska 1992).

Property purchased from inherited funds held separate. —

Court properly characterized gold coins as the wife’s separate property where the wife purchased the coins with her share of proceeds from the sale of her separate property, and the evidence failed to show any action by the wife indicating that she intended to transmute the disputed coins into marital property; the coins simply remained untouched and unused in the family’s vault. Thomas v. Thomas, 171 P.3d 98 (Alaska 2007).

Enforcement of prenuptial agreement. —

Prenuptial agreements legally procured and ostensibly fair in result are valid and can be enforced. Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987).

Where a prenuptial agreement had been executed to keep the parties’ premarital assets separate, if the wife consented to gifts to her husband’s sons from a previous marriage with full knowledge that they were being made out of marital property, then the gifts are to be held valid and the wife is not to be credited for one-half their value in distributing the property upon divorce. If, however, the wife consented to the gifts only because she believed they were being made out of her husband’s separate assets, then the gifts are voidable at the wife’s option and she is entitled to be reimbursed for one-half their value. Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987).

Determining status of premarital assets. —

The trial court retains discretion to decide whether a premarital asset remains separate property even where the asset has been treated as joint property. The trial court makes this determination in the context of an equitable division of marital assets and a balancing of the parties’ situation. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

Without a finding that the parties intended to convert a business established by the husband prior to the marriage into marital property, the trial court cannot properly consider the business a marital asset; in determining the existence of this intent, the court can look to the parties’ conduct. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

It was not error for the trial court to determine that the primary residence, given as a gift to the husband one week before the marriage, had transmuted into marital property when the parties used the home as their only residence during the 15-year marriage and the wife participated in the maintenance and management of the home. Miller v. Miller, 105 P.3d 1136 (Alaska 2005).

It was clear error for the superior court to find that the husband's boat, which it found to be his premarital property, was later transmuted into marital property because the fact that both the husband and wife used the boat and contributed to a new top was insufficient to show donative intent. Further, because the record did not provide any information on the effect of the new top on the boat's value, the superior court should make appropriate factual findings on remand for the active appreciation doctrine to apply. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Premarital assets. —

It is an abuse of discretion for the trial court to shield the property from equitable distribution merely by affixing to the property the label of “premarital asset.” Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Trial court did not err in concluding that no adjustment to the marital estate based on premarital contributions was appropriate given the length of the marriage and the negligible premarital financial investments of the parties. Green v. Green, 29 P.3d 854 (Alaska 2001).

When invasion of premarital property authorized. —

Trial court may invade the separate, premarital property of one spouse when necessary to balance the equities between the parties, or when the parties treated such properties as joint holdings in which each took an active interest in the ongoing maintenance, management, and control of the assets. Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

This section authorizes invasion of premarital holdings when the balancing of the equities between the parties requires it. Carlson v. Carlson, 722 P.2d 222 (Alaska 1986).

Nothing prevents a trial court from reaching either party’s separate premarital assets where the equities so require. So long as the parties do marry, the trial court is free to consider the parties’ entire relationship, including any period(s) of premarital cohabitation, in making its property division under paragraph (a)(4), so long as the court observes the distinction which that subsection draws between assets acquired prior to and during coverture. Murray v. Murray, 788 P.2d 41 (Alaska 1990).

When a couple began living together 10 years before their marriage, coverture commenced when the couple began living together, and properties acquired by the husband after cohabitation commenced but before the marriage were deemed marital by virtue of the fact that the parties lived together and later married. Chase v. Chase, 109 P.3d 942 (Alaska 2005).

As the trial court did not attempt to balance the equities, as required by paragraph (a)(4) of this section, and unequally divided the marital estate, awarding property to the wife and debt to the husband, its property division and invasion of separate property was vacated. Odom v. Odom, 141 P.3d 324 (Alaska 2006).

Awarding guns that were marital property to the wife in a divorce proceeding was proper where the husband was subject to 18 U.S.C.S. § 922(g) and not permitted to possess a gun; further, the trial court did not err in making a limited invasion of separate property, which consisted of four guns. Rodvik v. Rodvik, 151 P.3d 338 (Alaska 2006).

It was error to use a wife's eligibility for Indian Health Services (IHS) healthcare to offset a husband's eligibility for TRICARE healthcare, when dividing marital property, because the IHS benefit was the wife's separate property, as the wife was eligible for the benefit from birth, while the TRICARE benefit, to the extent the benefit was earned during the marriage, was marital property, and no equities justified invading the wife's separate property to offset the wife's interest in this marital property. Horning v. Horning, 389 P.3d 61 (Alaska 2017).

Even if the classification of the home equity line of credit (HELOC) as a marital obligation had been erroneous, having determined that the Washington cabin was the ex-wife's separate property, the superior court recognized that her possession of that asset would be threatened if the ex-husband failed to pay his share of the joint obligation for which the cabin was security; thus, the superior court's property division order offset an award of the entire HELCO to the wife by awarding her a portion of the husband's 401(k) equal to one-half the HELOC's principal balance. Gambini v. Hamilton, 440 P.3d 184 (Alaska 2019).

When invasion of premarital asset unauthorized. —

A whole life insurance policy taken out on behalf of husband when he was four years old, although the $13.83 quarterly premiums were paid out of a joint checking account, was not invaded as marital property because the policy paid dividends that offset the annual premiums. Money v. Money, 852 P.2d 1158 (Alaska 1993).

Contributions benefiting separate property of other spouse acquired before marriage. —

Where one spouse has made contributions to the marital community, whether of a pecuniary or of a more intangible nature, and where these contributions have benefited in any manner the separate property of the other spouse acquired before the marriage, the trial court may determine that all or a portion of that property should be included with the property acquired after marriage in effecting a just and equitable division of property. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Ross v. Ross, 496 P.2d 662 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

Wife’s efforts in handling insurance and roofing contracts relating to her husband’s premarital real property, and in cleaning the property between renters, were insufficient to require invading the property, where the parties did not reside on the property nor did they jointly incur liability on it. McDaniel v. McDaniel, 829 P.2d 303 (Alaska 1992).

Separate property transmuted into marital property. —

Where the parties had agreed to sell their separate property houses and to buy a home together, this agreement to combine the separate property in essence transmuted the separate property into marital property and should have been considered marital property for purposes of the decree of divorce and distribution. Leis v. Hustad, 22 P.3d 885 (Alaska 2001).

Trial court did not err in finding that husband intended his separate property, including log cabin and two airplanes, to be transmuted into marital property, and thus divisible as such, by virtue of marital use and effort. Green v. Green, 29 P.3d 854 (Alaska 2001).

In a divorce where the evidence showed the parties’ intent to treat a triplex as marital property, the triplex was properly found to have been transmuted from the husband’s separate property to marital property because the husband and wife used the triplex as a marital residence for the first two years of their union and the wife was actively involved in the management and maintenance of the property. Keturi v. Keturi, 84 P.3d 408 (Alaska 2004).

It was not error for the trial court to determine that a cash gift made to the husband during the marriage had transmuted into marital property where the husband had placed the money into a joint account and the wife testified that she considered the account to be marital property in part because the funds were used for ongoing household expenses. Miller v. Miller, 105 P.3d 1136 (Alaska 2005).

Trial court did not fail to grant sufficient weight to the wife’s $107,000 contribution towards a house where the court concluded that she intended to transmute the funds into marital property. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Equipment used or owned by the company the husband started before the marriage was marital property because the parties used the equipment for their business, used business funds to maintain the equipment, depreciated some of the equipment on the company tax returns, and treated the equipment as theirs; the absence of any major repair or alteration to the equipment did not render the findings they were transmuted into marital property erroneous. McCormick v. McCormick, — P.3d — (Alaska Sept. 16, 2015) (memorandum decision).

While under the statute, generally spouses were not liable for the debts of the other spouse incurred before marriage, the superior court did not clearly err in finding that the wife's premarital loan was transmuted into marital debt through loan consolidation; the consolidated loans were incurred during the marriage and were presumptively marital debt, the husband did not show the couple intended part of the consolidated loans to remain separate debt of the wife's, nor did the husband provide a basis on which the superior court could calculate what the separate amount might be. Wagner v. Wagner, 386 P.3d 1249 (Alaska 2017).

Home acquired prior to marriage transmuted to marital property. —

Under paragraph (a)(4) of this section, where a home was purchased by the husband prior to marriage, but the property was used as the couple’s home before and during the marriage and there was evidence of ongoing management and maintenance by both parties, the home was properly considered transmuted into marital property. Abood v. Abood, 119 P.3d 980 (Alaska 2005).

Determination that only one-third of the value of a house was transmuted to marital property and two-thirds remained the wife’s separate property was an abuse of discretion because (1) transmutation converted the entire property from the wife’s separate property to marital property; (2) it was the husband’s contributions and effort in maintaining and improving the house and the parties’ intent before refinancing the house that brought about the transmutation; and (3) with the exception of a small amount of the funds that the trial court found went to pay the husband’s pre-existing debt, all of the proceeds of the refinancing were used for marital purposes — mainly to pay debts on marital property. The husband’s alleged deception in obtaining title to the property just before the parties separated was not shown to be financially harmful and could not under any recognized legal theory justify a defeasance of two-thirds of the husband’s share of the house. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

The parties’ primary residence was transmuted from separate to marital property, although acquired by the husband before the parties’ relationship began, because the wife’s income went to basic living expenses benefiting both parties, and she contributed to improvements in the form of labor and purchasing supplies. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Transmutability of lease income from separate property. —

Where husband had received property from his parents, which was separate property, the trial court erred in determining that the income from the property was transmutable; where appellate review addressed only the issue of transmutation, the allocation of marital assets and the invasion of lease income required the trial court to decide whether the equity required invasion of separate property. State v. Herrmann, 140 P.3d 895 (Alaska Ct. App. 2006).

Wife was not entitled to share in the appreciation of an apartment complex under the doctrine of equitable distribution where husband purchased complex two years before marriage and wife did not participate in the active maintenance, management, or control of the complex during the marriage. Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987).

No debt owed on marital property. —

In a divorce, a duplex purchased by the husband with a work bonus was properly found to be marital property carrying no outstanding debt. Keturi v. Keturi, 84 P.3d 408 (Alaska 2004).

Superior court erred in reimbursing the husband for his efforts both before and during the marriage, while giving him the entire benefit of the wife’s efforts towards conduct of a car repair business during the marriage. Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Effect of commingling. —

The act of commingling, in itself, does not automatically establish intent to hold property jointly, and the court always should consider the property’s source when determining what assets are available for distribution. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

Effect of party's default on property division. —

Where marital property remained to be divided, a party’s default did not permit the trial court to have a limited ability to focus on liability issues in the property division, and the parties were entitled to present evidence. Hicks v. Pleasants, 158 P.3d 817 (Alaska 2007).

In marriage of short duration, where there has been no significant commingling of assets between the parties, the trial court may, without abusing its discretion, treat the property division as an action in the nature of rescission, aimed at placing the parties in, as closely as possible, the financial position they would have occupied had no marriage taken place. Rose v. Rose, 755 P.2d 1121 (Alaska 1988).

When the marriage is of short duration and the parties do not commingle assets, an alternative method is to treat property division as if it were contract rescission. Lowdermilk v. Lowdermilk, 825 P.2d 874 (Alaska 1992).

Rescission principles. —

Trial court’s decision to apply a modified version of case law, applying rescission principles to some property and then dividing other property equitably under other case law, might be problematic, and the court vacated the property division and remanded for further proceedings. Pfeil v. Lock, 311 P.3d 649 (Alaska 2013).

Rescission not required in marriage of short duration. —

The holding in Rose v. Rose, 755 P.2d 1121 (Alaska 1988) stands for the limited proposition that trial courts have discretion to apply rescission principles in certain circumstances but, since equitable division is the prevailing rule, a trial court is not required to adopt rescission. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

Consideration of premarital cohabitation in making property division. —

Where parties were legally married for only 34 months of an eight-year relationship, it was error for the trial court to find that they were married for eight years; the court could consider the entire relationship, including periods of premarital cohabitation, in making a property division, so long as it observed the distinction between assets acquired prior to and during coverture. Harrelson v. Harrelson, 932 P.2d 247 (Alaska 1997).

Where a husband and wife lived together for 10 years before marrying, retirement benefits that the wife acquired in the 10 years prior to the couple’s legal marriage could be included in the marital estate. McLaren v. McLaren, 268 P.3d 323 (Alaska 2012).

The parties’ primary residence was transmuted from separate to marital property, although acquired by the husband before the parties’ relationship began, because the wife’s income went to basic living expenses benefitting both parties, and she contributed to improvements in the form of labor and purchasing supplies. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013), (memorandum opinion).

Two property tracts were marital property because those tracts were acquired during premarital cohabitation and the parties’ actions showed an intent to develop and operate the properties jointly. However, the court’s valuation of the tracts was improper where it was based only on assessed value and application of an arbitrary formula to account for improvements. It is the duty of the court to require parties to provide evidence of actual value of their property. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Two property tracts were marital property because those tracts were acquired during premarital cohabitation and the parties’ actions showed an intent to develop and operate the properties jointly. However, the court’s valuation of the tracts was improper where it was based only on assessed value and application of an arbitrary formula to account for improvements. It is the duty of the court to require parties to provide evidence of actual value of their property. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Where a couple lived together without being married from 1960 through 1968, when they entered a putative marriage, utilization of a relation-back doctrine resulted in the “equitable considerations arising from the reasonable expectation of a continuation of benefits attending the status of marriage entered into in good faith” being applied to a period when the parties chose not to be married, and this result was erroneous. Hager v. Hager, 553 P.2d 919 (Alaska 1976).

Parties' intention to treat items as joint holdings. —

Where parties, by their actions during marriage, demonstrate their intention to treat specific items of property as joint holdings, even though the properties were separately held by one spouse prior to coverture, invasion of one spouse’s property acquired before coverture may be required as a matter of law; such intention is manifest when both spouses can be shown to have taken an active interest in the ongoing maintenance, management, and control of specific assets. Wanberg v. Wanberg, 664 P.2d 568 (Alaska 1983).

Prior award of marital home under domestic violence protective order. —

Because a wife was awarded possession of the marital residence under a domestic violence protective order, it was not an abuse of discretion for the superior court to consider that order in equitably dividing the marital estate. Shear v. Shear, — P.3d — (Alaska Dec. 3, 2014) (memorandum decision).

Property acquired during informal separation. —

Where the parties had reconciled after their informal separation, without ever filing for divorce, and lived together as husband and wife for a full three years after the separation, the trial court did not abuse its discretion in determining that property acquired during the period they lived apart was part of the marital estate. Rodriguez v. Rodriguez, 908 P.2d 1007 (Alaska 1995).

Property acquired after permanent separation but prior to final divorce should be included in the property settlement if it was acquired with property that would otherwise have been subject to division; if the later-acquired property was purchased with property that would not have been divided, then the new property should remain with the purchasing spouse. Hunt v. Hunt, 698 P.2d 1168 (Alaska 1985).

The property division that was essentially an equal division of property owned by the parties at the time of the divorce decree, although they had been separated for four years, was not clearly unjust. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

Spouse’s continuing economic dependence alone does not indicate the continuance of the marital economic unit for purposes of determining whether property accumulated with income earned after a final separation that is intended to, and does in fact, lead to a divorce is excluded from the category of marital property. Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992).

Credit card debt incurred after separation. —

The trial court erred in classifying credit card debt incurred by the wife after separation as a marital debt. Dodson v. Dodson, 955 P.2d 902 (Alaska 1998).

Payments made to preserve marital property. —

The fact that one party has made payments from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property; however, there is no absolute rule that the spouse who makes such payments must be credited for them in the final property division. Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).

Court did not err by failing to give a husband credit for post-separation payments made to preserve marital assets because there was evidence that the parties continued to live as a marital unit until the date of the divorce decree. Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Maintenance of marital property from post-separation income. —

The spouse who makes payments to maintain marital property from post-separation income need not necessarily be given credit for them in the final property division. The fact that one party has made payment from non-marital income to preserve marital property should be considered as one of the circumstances to be weighed by the trial court in dividing the marital property. Ramsey v. Ramsey, 834 P.2d 807 (Alaska 1992).

A court may properly consider post-separation payments made from separate income to preserve marital property and has the discretion to give the paying party credit for these payments. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

Insufficient evidence of unreasonable depletion. —

Superior court was entitled to determine there was insufficient evidence of unreasonable depletion; wife leaving town, with no one else being reasonably able to manage the bed and breakfast (B&B), occurred when the marriage was breaking down, but the record lacked any evidence that the wife either used the B&B for her own benefit or derived any tangible, personal benefit by leaving it unattended. Jordan v. Jordan, 480 P.3d 626 (Alaska 2021).

Valuation of property using active appreciation analysis. —

Determination that the husband’s business was transmuted to marital property was not supported by the record. Findings that the business was started before the cohabitation and marriage, that it grew during the marriage, and that the growth was due to the husband’s efforts at the business and to the wife’s efforts at home, appeared to fit an active appreciation analysis that would entitle the wife to an interest in the increase in the value of the business, rather than its entire value. Hughes v. Hughes, — P.3d — (Alaska May 1, 2013) (memorandum decision).

Credit for improvements to marital home. —

Where trial court had evidence that improvements could maintain or increase the existing value of a house, it was not clear error for the court to award a 20 percent credit for spouse’s expenses for improvements made to marital home after dissolution. Knutson v. Knutson, 973 P.2d 596 (Alaska 1999).

Award of family home to child's primary custodian held proper. —

Award of the family home to the wife was proper under subparagraph (a)(4)(F) of this section, in that the mother was awarded primary physical custody of the children and they had lived their entire lives in the home. Furthermore, the trial court awarded the husband the right of first refusal to purchase the home should the wife choose to sell it, or upon her death. Odom v. Odom, 141 P.3d 324 (Alaska 2006).

Superior court did not abuse its discretion by awarding the wife the marital home in a divorce because the court considered the parties' earning capacities, the parties' financial conditions, and the desirability of awarding the family home to the party who had primary physical custody of the children. The court believed that any potential benefit from selling the home was outweighed by the likely disruption of relocating the children, that the husband was unable to pay the monthly mortgage, and that the wife was able to pay the mortgage. Johnson v. Johnson, — P.3d — (Alaska July 22, 2020).

Conveyance of marital property in anticipation of divorce. —

Husband’s secret conveyance of his interest in a bar to his brother three days after receiving service of divorce papers was intended to defraud the wife of her fair share of a primary marital asset. Pattee v. Pattee, 744 P.2d 658 (Alaska 1987), overruled, Nass v. Seaton, 904 P.2d 412 (Alaska 1995); Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986).

Retirement plan. —

The court properly credited the husband with the actuarial present value of his retirement plan, notwithstanding that it included survivor benefits payable to “spousal dependents,” including his ex-wife, upon his untimely death. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

In a dissolution of marriage case, the court erred in its characterization of the husband’s IRA as separate property where, to the extent that a party earned retirement benefits during marriage, the benefits were marital assets and were subject to equitable division. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Court erred by classifying the husband’s individual retirement account (IRA) as marital property where there was no evidence that all of the funds deposited in the IRA were marital, there was no evidence of transmutation, and although $3,500 of marital property was used to fund the IRA, it was an abuse of discretion to treat the entire account as marital. Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Division of nonvested pension rights. —

Because a nonvested pension may, by definition, be forfeited in its entirety, it should not be considered when the trial court makes an initial property division at the time of a divorce. If and when the employee spouse’s pension rights vest, and if the parties are unable to reach an agreement on their own, the non-employee spouse may at any time thereafter seek an order dividing the pension. This is to be done in the same manner as if the pension had been vested at the time of the divorce. Laing v. Laing, 741 P.2d 649 (Alaska 1987) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

The trial court erred in awarding husband his nonvested retirement benefits at the time of divorce. Root v. Root, 851 P.2d 67 (Alaska 1993).

Division of vested pension. —

The proper division of a vested pension can be accomplished in either of two ways. The court can either award a lump sum discounted to present value to one party or both, or retain jurisdiction and have payments made to the parties as retirement benefits come due. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).

Nonretirement option for employee spouse. —

An employee spouse should have the option of not retiring and periodically paying the non-employee spouse sums equal to the pension benefits that otherwise would have been received. Morlan v. Morlan, 720 P.2d 497 (Alaska 1986).

Discounting 401k plan by projected tax liability. —

The trial court did not abuse its discretion in discounting by a projected tax liability the husband’s 401k plan that was awarded to the wife. Dodson v. Dodson, 955 P.2d 902 (Alaska 1998).

Award of military retirement. —

Trial court did not err in denying the wife’s motions for reconsideration of her share of her former husband’s military retirement because the trial court’s award of 35 percent was consistent with the requirements of the Uniformed Services Former Spouses’ Protection Act and was not unjust under Alaska law. Williams v. Williams, 252 P.3d 998 (Alaska 2011).

Wife’s action for post-judgment division of property was not barred by the statute of limitations because she filed a motion to further adjudicate an already existing action, consistent with this section, which allows post-decree divisions of property any time after judgment. Schaub v. Schaub, 305 P.3d 337 (Alaska 2013).

Military disability benefits. —

Superior court erred in awarding the wife the equivalent of half of a putative marital portion of the husband's VA disability benefits; while an unequal distribution based upon the husband's expected future working income compared to the wife's was justified, by directly offsetting nondivisible disability pay to the dollar and to the penny, the figure was clearly applied as a dollar for dollar distribution prohibited by case law. Jordan v. Jordan, 480 P.3d 626 (Alaska 2021).

Waiver of military retirement pay in order to collect disability benefits. —

Since the waiver of former husband’s military retirement pay in order to collect disability benefits clearly affected the relative financial positions of the parties, former wife was entitled to a redistribution of the marital estate under these new circumstances. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Where former husband waived his military retirement benefits in order to collect disability benefits, and where the trial judge simply ordered him to pay an amount equivalent to former wife’s share of the waived retirement pension as if the waiver had never occurred, the effect of the modification order was to award her a portion of former husband’s disability benefits, and the order, therefore, ran afoul of the supremacy clause of the federal constitution. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Stock options. —

The court was not required to consider tax consequences in its valuation of stock options belonging to the husband that were marital assets. Broadribb v. Broadribb, 956 P.2d 1222 (Alaska 1998).

Health insurance benefits. —

In a property division following divorce where the wife was a state employee, the trial court correctly held the wife’s lifetime health insurance benefits that vested before the marriage were her separate property. The trial court did not err in applying the factors listed in this section in its consideration of the husband’s health problems and the costs of him obtaining insurance; because he was awarded a coverture portion of his wife’s Public Employee Retirement System account, he was entitled to obtain health insurance coverage under AS 39.35.535(d) . Sparks v. Sparks, 233 P.3d 1091 (Alaska 2010), overruled in part, Engstrom v. Engstrom, 350 P.3d 766 (Alaska 2015).

Because a husband and wife both had similar economic potential and both faced health conditions that would likely require private medical spending, determination that the health insurance issue did not require a departure from the presumptively valid equal division of marital assets was not an abuse of discretion. McCormick v. McCormick, — P.3d — (Alaska Sept. 16, 2015) (memorandum decision).

Disposal of spouse's health insurance. —

Husband’s unilateral removal of his wife from his health insurance policy before entry of the divorce decree constituted dissipation of a marital asset in violation of the trial court’s standing order. Thus, trial court’s order that husband either reinstate wife’s coverage or pay her medical bill incurred both before and after the decree was entered was within its broad discretion. Kinnard v. Kinnard, 43 P.3d 150 (Alaska 2002).

Court erred by finding that wife’s post-retirement health benefits were nonmarital property because, by using marital funds during the marriage, the wife reacquired the post-retirement health insurance benefits she earned before the marriage; the benefit was, therefore, at least in part a marital asset. Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Set net fishing permit separate property. —

Although the proceeds from the couple’s joint fishing enterprise were marital, having consistently been shared by the parties during their marriage, the record did not show that the wife ever took any action to maintain, manage, or control the fishing permit itself; therefore, the superior court’s finding that the set net permit was husband’s separate property and not part of the marital estate was not clearly erroneous. Edelman v. Edelman, 3 P.3d 348 (Alaska 2000).

Presumption of debt as marital. —

Absent a showing that the parties intended the debt to be separate, the trial court must presume that a debt incurred during the marriage is marital and should consider it when dividing the marital estate; therefore, where the loan was evidenced by a promissory note signed by both parties, even though the loan came from the wife’s parents and a portion of the loan money was placed in the wife’s retirement account, this did not overcome the marital presumption. Leis v. Hustad, 22 P.3d 885 (Alaska 2001).

Court did not err in its division of marital property and debt where the wife’s student loan was obtained during the marriage; it was proper for the trial court to award the wife approximately $3,352 more than a fifty percent share of the marital property, based on her circumstances as an unemployed graduate student, despite her full-time earning capacity. Veselsky v. Veselsky, 113 P.3d 629 (Alaska 2005).

Equal allocation of marital debt. —

Superior court did not abuse its discretion in equally allocating responsibility for the marital debt; the husband bore the burden of proving that the wife wasted marital assets by gambling, and the superior court found that the wife's testimony about how the money was used was more credible, especially in light of the parties' tax returns and receipt of public assistance. Wagner v. Wagner, 386 P.3d 1249 (Alaska 2017).

Wife did not overcome the presumption that the entire debt on the credit card account was marital, and it was clear error to hold otherwise because the husband's daughter testified that she gave the dog to the husband and wife as a gift; the debt for the dog's veterinary care was incurred during the marriage; and the wife did not provide any trial evidence showing that the parties intended the debt to be separate. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Payment by wife held not clearly repayment of valid marital debt. —

Trial court did not err in failing to grant sufficient weight to the wife’s payment of roughly $240,000 to her parents to repay a loan because the wife had not established by a preponderance of the evidence that those payments created any legal obligation of repayment; accordingly, it concluded that no adjustment was required based on the payments. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Effect of debt in determining value. —

Generally, the debt owed on any particular item of property will factor into the trial court’s determination of its value. Mack v. Mack, 816 P.2d 197 (Alaska 1991).

Trial court did not clearly err by assigning a value of zero to business realty for the purposes of a marital property division where nonrecourse languge in the contract for purchase of the property left the wife free to default on the realty debt without liability. Mack v. Mack, 816 P.2d 197 (Alaska 1991).

Factors in (a)(4) properly considered. —

A property division must fairly allocate the economic effects of divorce by considering the factors set out in Merrill v. Merrill, 368 P.2d 546 (Alaska 1962), as codified at paragraph (a)(4), and the court properly considered those factors, particularly the factor of the station in life of the parties during the marriage, as well as the age and health of the parties. Sloane v. Sloane, 18 P.3d 60 (Alaska 2001).

Regarding property division in a marital dissolution, appellate court found no abuse of trial court’s discretion in evaluating the property division factors in paragraph (a)(4); wife’s actual income, not her potential income, was properly considered because of her obligations to the children. Tillmon v. Tillmon, 189 P.3d 1022 (Alaska 2008).

Factors set out in paragraph (a)(4) were properly considered by the court, showing the factual basis for its decision to divide property equally; the court considered the length of the marriage, the husband’s receipt of disability benefits, the wife’s modest earning capacity, and the husband’s anticipated inheritance. Stanhope v. Stanhope, 305 P.3d 1282 (Alaska 2013).

Superior court’s equal division of the marital estate was not an abuse of discretion because the order identified the factors set forth in the statute as the basis for dividing marital property, and the court’s explanation of its decision to divide the marital estate evenly touched on all of the required factors. McCormick v. McCormick, — P.3d — (Alaska Sept. 16, 2015) (memorandum decision).

The distribution of the marital estate was equitable even though the court assigned whole, discrete debt accounts to one party or the other; the wife failed to engage or weigh any statutory factors permitting an uneven allocation, and, while the parties arguably benefitted from the wife's education during the marriage, only the wife would directly benefit thereafter. Melillo v. Szymanski, — P.3d — (Alaska Aug. 10, 2016) (memorandum decision).

The principal factors that should be considered by the trial court in resolving property division and alimony issues are: The respective ages of the parties; their earning ability; the duration and conduct of each during the marriage; their station in life; the circumstances and necessities of each; their health and physical condition; their financial circumstances, including the time and manner of acquisition of the property in question, its value at the time and its income producing capacity if any. Groff v. Groff, 408 P.2d 998 (Alaska 1965); Stroecker v. Stroecker, 428 P.2d 384 (Alaska 1967); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Schoning v. Schoning, 550 P.2d 373 (Alaska 1976); Hager v. Hager, 553 P.2d 919 (Alaska 1976); Faro v. Faro, 579 P.2d 1377 (Alaska 1978); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

In determining whether separate property acquired before marriage should be invaded, the court should particularly consider factors such as the duration of the marriage, the conduct of the parties during the marriage, the manner of acquisition of the property, its value at the time of acquisition and at the time of the property division, and any other factors bearing on whether the equities dictate that the other spouse is entitled to share in that property. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975).

Courts making property divisions should consider each spouse’s relative contributions to the marriage, whether of a pecuniary or of a more intangible nature. Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981).

Consideration of tax consequences. —

The superior court shall consider the immediate and specific tax consequences of its division of property. However, it is the parties’ responsibility to advocate how they believe the tax code and regulations apply to the disposition of property so the court can make a reasoned decision. Oberhansly v. Oberhansly, 798 P.2d 883 (Alaska 1990).

The court did not err in ignoring a verbal stipulation by the parties that the husband would accept payment of the second deed of trust on the family home in exchange for receipt of two notes owing to the couple, where the language targeted by the husband was one small portion of a general proposal by the wife’s counsel, this proposal was made in response to the court’s request for argument by each counsel on suggested property divisions based on need and utilization, and the comments were indefinitely phrased at best and were couched in terms of one suggestion among many put forth by counsel. Rostel v. Rostel, 622 P.2d 429 (Alaska 1981), overruled, Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Personal jurisdiction. —

Order dividing property was void because the court that issued the order did so without having personal jurisdiction over the wife; and the state supreme court affirmed the trial court’s judgment vacating the order even though it was 17 years old, and also affirmed the trial court’s subsequent judgment awarding the wife half of the marital portion of her ex-husband’s pension, but only from the date she filed an action seeking an interest in the pension, not from the date the husband began receiving it. Inman v. Inman, 67 P.3d 655 (Alaska 2003).

Discretion of court. —

The trial court has broad discretion in property division cases. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991); Mack v. Mack, 816 P.2d 197 (Alaska 1991).

The trial court has broad discretion in fashioning an equitable property distribution. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

Standards regarding trial court's discretion. —

The standards regarding the trial court’s discretion articulated in Crume v. Crume, 378 P.2d 183 (Alaska 1963) are applicable both to the trial court’s exercise of its discretion in deciding whether or not the balancing of the equities between the parties requires invasion of the separate property of a spouse acquired prior to coverture and to the trial court’s decision in making the actual property division. Vanover v. Vanover, 496 P.2d 644 (Alaska 1972).

The enumeration of factors in subsection (a) is not exhaustive, and the trial court need not make findings pertaining to each factor, but its findings must be sufficient to indicate the factual basis for the conclusion reached. Nicholson v. Wolfe, 974 P.2d 417 (Alaska 1999).

The trial court’s discretion to invade property of a spouse acquired prior to coverture will not be disturbed absent a clear abuse of discretion. Moore v. Moore, 499 P.2d 300 (Alaska 1972).

Court's disposition should not be disturbed unless unjust. —

Under the wording of this section, the division of property between the parties in a divorce action rests in the discretion of the trial judge, and should not be disturbed on appeal unless such division is clearly unjust. Merrill v. Merrill, 368 P.2d 546 (Alaska 1962); Ross v. Ross, 496 P.2d 662 (Alaska 1972); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Schoning v. Schoning, 550 P.2d 373 (Alaska 1976); Burks v. Burks, 564 P.2d 71 (Alaska 1977); Malone v. Malone, 587 P.2d 1167 (Alaska 1978); Bussell v. Bussell, 623 P.2d 1221 (Alaska 1981); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Trial court’s valuation of a commercial fishing boat at $195,000 was not clearly erroneous where the husband presented substantial evidence on the point; the husband was personally familiar with the vessel, his expert was knowledgeable about the overall market for such vessels, and both reached a similar conclusion, and the husband had notice about the need to present valuation evidence. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

The division of property is left to the broad discretion of the court, and the supreme court will not reverse except upon a showing of abuse of discretion. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962); Crume v. Crume, 378 P.2d 183 (Alaska 1963); McSmith v. McSmith, 387 P.2d 454 (Alaska 1963); Groff v. Groff, 408 P.2d 998 (Alaska 1965); Stroecker v. Stroecker, 428 P.2d 384 (Alaska 1967); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Ross v. Ross, 496 P.2d 662 (Alaska 1972); Hurn v. Hurn, 541 P.2d 360 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Allen v. Allen, 554 P.2d 393 (Alaska 1976); Malone v. Malone, 587 P.2d 1167 (Alaska 1978).

Trial court has broad discretion in determining a just disposition of property based upon the facts in the particular case before it, and its determination will be reversed only where it is clearly unjust. Rose v. Rose, 755 P.2d 1121 (Alaska 1988).

The supreme court will disturb the trial court’s valuation of marital property only if it is clearly unjust. Hartland v. Hartland, 777 P.2d 636 (Alaska 1989).

The superior court has broad latitude in making its property division, and the supreme court will not disturb a property division absent a showing of abuse of discretion, i.e., clear injustice. Whether the trial court applied the appropriate legal standard in exercising its broad discretion is a question of law. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

Abuse of discretion. —

Superior court abused its discretion in awarding the wife an additional $175,000 from the marital estate based on asserted differences in the parties' future earning capacities; while the superior court did not fail to consider the husband's intent to retire or the wife's financial needs and was not required to reduce its award to present value, remand was required for the superior court to adjust its calculations to account for the 10-month difference in the husband's remaining working career and to consider the tax consequences. Jordan v. Jordan, 480 P.3d 626 (Alaska 2021).

Trial court should indicate ultimate facts found as basis for division. —

When called upon to review the justness of the division of property in a divorce action, the supreme court needs to be informed by the trial court what it found to be the ultimate facts upon which it based its conclusion that the property should be divided as it has decreed. Merrill v. Merrill, 368 P.2d 546 (Alaska 1962).

Trial court’s failure to properly consider wife’s health problems, manner of crediting wife’s use of marital assets post-separation, and its failure to set out the basis for its decision to divide the property equally by citing factors required to be considered in making property division awards did not meet the requirements of this section. Day v. Williams, 285 P.3d 256 (Alaska 2012).

Absence of findings warranted remand. —

Award of almost 60 percent of the marital estate to the wife in the parties’ divorce action was inappropriate based upon lack of findings to support the unequal property division; thus, remand was proper for the superior court to consider the factors in Merrill v. Merrill, 368 P.2d 546 (Alaska 1962) codified in this section. Walker v. Walker, 151 P.3d 444 (Alaska 2007).

Without findings sufficient to indicate a factual basis for the conclusion the trial court reached, it was impossible for the court to evaluate whether the trial court properly applied case law dealing with property division in a marriage of short duration. Pfeil v. Lock, 311 P.3d 649 (Alaska 2013).

Remand required for specific findings. —

Because the property division was vacated on the ground that a fishing vessel should not have been treated differently than the other marital assets, the value of the equalization payment would necessarily change on remand. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Findings of fact. —

Based on a consideration of its findings regarding the parties' individual needs, the superior court awarded the wife a greater portion of the marital estate. Because these findings were not clearly erroneous, the superior court did not abuse its discretion. Downs v. Downs, 440 P.3d 294 (Alaska 2019).

Superior court’s decision to use the date of trial for division of the husband’s pension was not an abuse of discretion, where the husband considered the entire pension accrued during the parties’ cohabitation and marriage to be part of the marital estate and never differentiated the pension contributions he made before the parties’ marriage or those made after the parties’ separation. Bays v. Bays, 807 P.2d 482 (Alaska 1991).

Discretion not abused in disposition of down payment. —

Trial court properly applied its discretion when it determined that the husband’s down payment on a Florida condominium remained a premarital asset and excluded it from the marital equity in the condominium. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

Prejudgment interest. —

Given the highly discretionary nature of property division cases, the trial court may award prejudgment interest in divorce proceedings; it is not required, however, and interest should not be awarded where it “would do an injustice.” Morris v. Morris, 724 P.2d 527 (Alaska 1986).

Trial court did not abuse its discretion in giving wife six months interest-free time in which to liquidate the equity in a house to provide funds to satisfy husband’s judgment. Dixon v. Dixon, 747 P.2d 1169 (Alaska 1987).

Abuse of discretion. —

Failure to award the wife any portion of her husband’s interest in California property constituted an abuse of discretion. In light of the wife’s age, existing and future health problems, her limited earning capacity, the 25 years duration of the marriage, and the fact that a substantial amount of the properties awarded to her were purchased with her separate inheritance funds, a just division of the property of the parties required invasion of the husband’s separate property, i.e., his California property, and the award of some portion of the husband’s interest in this property to his wife. Burrell v. Burrell, 537 P.2d 1 (Alaska 1975).

In a divorce action, a trial court erred under this section when it distributed to the wife 60 percent of the parties’ marital property because, although the husband was healthier and had greater earning capacity than the wife, whose injuries would probably require more medical care and limit her future employment options, it was error to find that the refinancing of the house was a source of financial detriment when the proceeds paid marital debts and the trial court did not consider the rental value of an apartment contained within the house. Additionally, finding a vehicle had a negative value, when in fact nothing was owed on it at the time that it was traded in, was error, as was deducting that value from the wife’s vehicle account, but the marital funds the wife retained at the time of separation were later reasonably expended by the wife to support herself and her children, and the wife’s anticipated receipt of child support arrearages did not amount to a double recovery. Heustess v. Kelley-Heustess, 158 P.3d 827 (Alaska 2007).

Trial court abused its discretion in dividing the marital estate 50/50 because the husband's income was substantially less than the wife's income, the wife was 10 years younger, in better health, had better earning capacity, and had better health and retirement benefits, and the post-division equalization did not justify an equal division of the parties' estate. Fletcher v. Fletcher, 433 P.3d 1148 (Alaska 2018).

Division must be clearly unjust to establish abuse of discretion. —

To establish an abuse of discretion the aggrieved party must show that the property division was clearly unjust. Crume v. Crume, 378 P.2d 183 (Alaska 1963); McSmith v. McSmith, 387 P.2d 454 (Alaska 1963); Groff v. Groff, 408 P.2d 998 (Alaska 1965); Sheridan v. Sheridan, 466 P.2d 821 (Alaska 1970); Vanover v. Vanover, 496 P.2d 644 (Alaska 1972); Burrell v. Burrell, 537 P.2d 1 (Alaska 1975); Hurn v. Hurn, 541 P.2d 360 (Alaska 1975); Courtney v. Courtney, 542 P.2d 164 (Alaska 1975); Allen v. Allen, 554 P.2d 393 (Alaska 1976); Malone v. Malone, 587 P.2d 1167 (Alaska 1978).

Superior court did not clearly abuse its discretion by awarding the wife a larger share of the marital estate, but because the Alaska supreme court could not determine whether the husband’s vexatious litigation conduct was double-counted, the judgment was remanded for additional findings. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

The mere possibility of future dispute is not sufficient reason to disturb the superior court’s exercise of its discretion. Allen v. Allen, 554 P.2d 393 (Alaska 1976).

This section does not equate a “just” division of property with an equal division in all cases. Hurn v. Hurn, 541 P.2d 360 (Alaska 1975).

The requirement that the property division be an equitable one does not require a perfectly even division. Rostel v. Rostel, 622 P.2d 429 (Alaska 1981), overruled, Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

No affirmative duty to examine every property settlement by parties. —

Although this section grants broad authority to a trial court to fashion property settlements absent an agreement, it does not impose an affirmative duty on a trial court to examine every property settlement reached by the parties to determine if it is just. Kerslake v. Kerslake, 609 P.2d 559 (Alaska 1980).

Allocation of different types of assets. —

Trial court’s allocation of marital assets was not an abuse of discretion where the husband waived his argument challenging the valuation of one of the properties. Awarding the wife the sole income-producing asset was proper where the husband was awarded the vast majority of the marital estate’s liquid assets, and the trial court clearly had considered the husband’s separate property contributions. Partridge v. Partridge, 239 P.3d 680 (Alaska 2010).

Property division not clearly unjust. —

Where the couple lived together for several years before participating in a marriage ceremony in Mexico, and during that time acquired property in the husband’s name by homestead, that the marriage was invalid did not negate the trial court’s authority to award the putative wife a portion of the value of the homestead. Hager v. Hager, 553 P.2d 919 (Alaska 1976); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984); Smith v. Smith, 673 P.2d 282 (Alaska 1983).

Where a party to a divorce is claiming that the trial judge abused his discretion in dividing marital property by imposing a financial burden that is “clearly unjust,” the party must demonstrate such injustice to cause the supreme court to reverse the trial court’s decision, but where the party is in a position to alleviate his monthly payments by refinancing or liquidating assets, or by trading down to a less expensive automobile, and since it is not unreasonable to expect a party to a divorce to have to reorganize financially, at least on a short term basis, the result may be harsh, but as between the parties it is not clearly unjust. Monsma v. Monsma, 618 P.2d 559 (Alaska 1980).

Superior court’s unequal division of property was not clearly unjust where the court properly considered the husband’s fault in allowing most of the household debts to fall in default and in paying personal debts out of marital assets, and the husband had unfairly appropriated marital property after separation. Oberhansly v. Oberhansly, 798 P.2d 883 (Alaska 1990).

Trial court did not err in finding that residential properties were the husband’s separate property, where the evidence did not establish intent to hold the properties jointly, the wife did not contribute to mortgage payments or reside on the properties, and she did not assume any financial risk or work extensively to maintain or manage them. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

Trial court’s justification for the unequal division of property was the wife’s need to secure additional retirement and health benefits or equivalent financial security, and the order adequately explained the factual basis for the property division; because the court may properly consider each party’s financial condition, it did not err in considering the husband’s disability pay, and awarding the wife a greater share of money originally intended to compensate her for the loss of her sons was not clearly unjust. Young v. Lowery, 221 P.3d 1006 (Alaska 2009).

Property division not inconsistent with default judgment. —

Where the court entered a default judgment of divorce that included a provision that the parties divide their property equally, but made no item-by-item disposition, it was not error to subsequently, on motion of the defaulting party, enter an order specifically assigning items of property to each spouse. Hines v. Hines, 622 P.2d 982 (Alaska 1981).

Property award upheld. —

Where the wife made a substantially greater contribution to the marriage and the acquisition of property, the court did not err in awarding her the equity in an apartment building and a house. Cooke v. Cooke, 625 P.2d 291 (Alaska 1981).

Trial court considered whether costs related to financing a large lump sum payment to the husband would impose an undue hardship on the wife where the court considered the wife’s health and granted her the right to alter the payment schedule if she could not comply due to changes in her health or employment. Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Property division upheld. —

Where the trial court made extensive findings on the parties’ relative economic status and the economic effects of the divorce, it was not an abuse of discretion for the court to determine that a 50/50 split in property was equitable. Carstens v. Carstens, 867 P.2d 805 (Alaska 1994).

Trial court did not err by awarding the wife 67 percent of marital estate because it entered thoughtful and detailed findings of fact discussing the factors set out in paragraph (a)(4) and the reasons for deviation from the 50/50 norm for property division were sufficient; trial court’s findings discussed the parties’ significant income disparity and the wife’s need to keep the family home for the parties’ children, and court rejected the husband’s contention that the wife had unilaterally chosen not to return to full-time employment and found that she had no financial reserves after the husband failed to make mortgage payments on the marital home. Hooper v. Hooper, 188 P.3d 681 (Alaska 2008).

Court did not err when it divided the parties’ property equally because the court noted that both parties were gainfully employed, both parties had excellent benefits available to them through their employers, both parties were in reasonably good health, the wife was six years younger than the husband and therefore had a longer work expectancy, and both parties were leaving the marriage with significant assets and very little consumer debt. Helen S. K. v. Samuel M. K., 288 P.3d 463 (Alaska 2012).

Under a clear error standard, the supreme court deferred to the superior court's ruling that the date a wife filed her complaint for divorce was automatically the date of separation; the superior court found that the wife's car and her deposit were property acquired after the date of separation. Jackson v. Sey, — P.3d — (Alaska June 15, 2016) (memorandum decision).

Superior court did not abuse its discretion in failing to consider the wife's alleged misconduct in its equitable division of the marital estate where the husband did not offer any evidence of the alleged misconduct and did not attempt to quantify its financial impact, and the only support in the record for the husband's claims were the bare assertions in his own testimony. Greene v. Greene, — P.3d — (Alaska Oct. 24, 2018).

Property division and valuation affirmed. —

Where husband refused to follow a court order to dissolve a family trust into which he had moved his assets, and where the court awarded the wife a one-third interest in the property, the court did not err in valuing the property at the highest figure supported by the testimony. Gabaig v. Gabaig, 717 P.2d 835 (Alaska 1986); Zimin v. Zimin, 837 P.2d 118 (Alaska 1992).

Unequal property division upheld. —

There was no error where the trial court discussed each applicable statutory factor and stated that it based its decision to distribute the marital assets unequally primarily on the parties’ unequal earning power, stations in life, and conduct during the marriage, specifically focusing on its factual finding that the wife’s earning power was less than half of the husband’s. Tybus v. Holland, 990 P.2d 1281 (Alaska 1999).

Where a husband had a reasonable earning capacity and had received a portion of the marital estate large enough to help him make the transition into post-marital life, while the wife faced substantial future health care costs and other challenges to her ability to earn an income, the 60/40 property division in favor of the wife was within the trial court’s discretion Fortson v. Fortson, 131 P.3d 451 (Alaska 2006).

Superior court did not abuse its discretion in awarding a disproportionately high share of the marital estate to the wife in light of the husband's death as the husband's death could be properly considered as an element of the circumstances and necessities of each party; and the wife's relative financial needs were far greater because the husband was deceased. Aubert v. Wilson, 483 P.3d 179 (Alaska 2021).

Unequal division not justified. —

An equitable property division is presumptively fifty-fifty, absent any statutory or equitable factors justifying a different division, and the factors discussed in sub-paragraphs (a)(4)(A)-(I) did not justify awarding the wife less than fifty percent of the marital wealth. McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000).

In awarding the wife a larger share of the marital property the court double charged the husband by placing the value of the income-producing businesses as an asset in the property chart and to support an unequal division of property where all other factors were not equal. In the absence of findings about whether child support was inadequate to meet the child’s needs, an unequal property division that rested in part on the wife’s child-care responsibilities was error. Engstrom v. Engstrom, 350 P.3d 766 (Alaska 2015).

Property division clearly unjust. —

A property division that failed to mention various debts and some litigation settlement money, did not indicate consideration of the husband’s salary contribution to the marriage, and failed to mention several relevant factors, including the parties’ ages, their health, their financial circumstances, and their future needs, was clearly unjust. Burcell v. Burcell, 713 P.2d 802 (Alaska 1986).

Characterization of business as separate property. —

In a dissolution of marriage case, the court erred in its characterization of a business as separate property because the proof of the husband’s increased income that the wife was able to present suggested that the value of the business might have increased during the marriage. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

In a dissolution of marriage case, the court did not err in its characterization of a business as separate property where the record showed that the husband’s involvement with the store was quite limited; he only performed some accounting and tax returns for the store and attended its annual meeting. Therefore, the wife did not meet her burden of proof on the element of marital contribution for the business. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Bank accounts as separate property. —

In a dissolution of marriage case, the court erred in its characterization of bank accounts as the husband’s separate property because the record suggested that the accounts consisted of both marital and separate property. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Stock account as separate property. —

In a dissolution of marriage case, the court did not err in its characterization of a stock account as the husband’s separate property where the husband did not commingle funds and, to the extent that separate money was placed in joint accounts, the evidence was strong that it was only temporary and not to make it into joint property. Schmitz v. Schmitz, 88 P.3d 1116 (Alaska 2004).

Distribution just. —

Based on the statutory factors enumerated under this section, trial court’s allocation of marital property by way of one-third to husband and two-thirds to wife was not clearly unjust and should not be disturbed. Ulsher v. Ulsher, 867 P.2d 819 (Alaska 1994).

Separate property not transmuted into marital property. —

Because the superior court's transmutation finding was reversed, the court's orders granting the ex-wife half the proceeds of the sales of the individual fishing quotas (IFQs) could not stand because, without a valid transmutation finding or other basis for concluding that the IFQs were marital property, the IFQs were the ex-husband's separate property, and, as such, the IFQs and the proceeds from their sale were not subject to division. Brennan v. Brennan, 425 P.3d 99 (Alaska 2018).

In a divorce case, the superior court erred in determining that the individual fishing quotas (IFQs) had all been transmuted from separate property to marital property and were subject to division because the sale of separate property IFQs to fund the construction of a marital home titled in the wife's name was not relevant to determining whether the husband had the intent to convey the remaining IFQs to the marital estate; and the court did not appear to consider whether the wife's contribution to the fishing business specifically evidenced an intent on the husband's part to operate the business jointly and to convey to the marital unit either the IFQs or the corporation that held them. Brennan v. Brennan, 425 P.3d 99 (Alaska 2018).

Independent action not barred. —

A divorce decree silent as to property issues is not a bar to the maintenance of an independent action involving the parties’ property rights. Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Contempt proceedings may not be used to enforce decree based on property settlement. —

If the divorce decree is based upon a property settlement and not an alimony agreement, contempt proceedings may not be used to enforce the decree or to enforce any subsequent order that may be issued requiring the husband to make the payments specified in the property settlement agreement or in the decree itself. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

Post-judgment piecemeal disposition. —

Subsection (a) provides the statutory authority for a court to adjudicate property rights. However, it does not authorize a court to dispose of assets on a piecemeal basis where the parties’ property rights have been purportedly adjudicated and incorporated into a final judgment. Lowe v. Lowe, 817 P.2d 453 (Alaska 1991).

Although subsection (a) allows a court to adjudicate property rights, it does not authorize a court to dispose of assets on a piecemeal basis where the parties’ property rights have been purportedly adjudicated and incorporated into a final judgment. Thus, relief may be granted only within the parameters of Alaska R. Civ. P. 60(b). Juelfs v. Gough, 41 P.3d 593 (Alaska 2002).

Remand for additional evidence to prevent miscarriage of justice. —

Where a miscarriage of justice seemed apparent, the supreme court concluded that portion of a decree dividing the property of the parties to a divorce action should be set aside and the case remanded with directions to the trial court to receive such additional competent evidence as either party might wish to present on the property division issue and then enter new findings of fact, conclusions of law, and judgment on the issue in question. Rhodes v. Rhodes, 370 P.2d 902 (Alaska 1962).

Remand for property disposition modification because of extraordinary circumstances. —

Where the parties intended, at the time of divorce, to continue living in the marital home with the parties’ children, a subsequent change in circumstances warranted the trial court’s grant of the wife’s motion under Civ. R. 60(b) to modify the property disposition provisions of the decree. Foster v. Foster, 684 P.2d 869 (Alaska 1984).

Remand required given ambiguous basis for property division. —

Where the court could not determine the factual basis for the superior court’s property division from its findings, the case was remanded for adequate findings on whether certain fishing equipment was marital or separate property. Rhodes v. Rhodes, 867 P.2d 802 (Alaska 1994).

Remand required for specific findings. —

Because the trial court did not explain its reasons for preferring spousal support over property distribution, failed to disclose the basis for the amount of spousal support it awarded, and made no specific findings determining the earning power and financial needs of the parties, it was not possible to determine whether the court abused its discretion, requiring remand for additional findings on those issues. Hanlon v. Hanlon, 871 P.2d 229 (Alaska 1994).

Where the trial court briefly discussed spouse’s lack of job skills and need for reorientation assistance, this provided adequate support for the decision itself to award reorientation alimony, but did not assist the court in reviewing the correctness of the amount or duration of alimony, requiring remand for specific findings to support the amount and duration of reorientation alimony. Gallant v. Gallant, 882 P.2d 1252 (Alaska 1994).

A factor listed in paragraph (a)(4) should be referred to by the trial court in dividing the property of the parties; thus, where it was a factor, on remand the court should consider the time and manner of acquisition of property by the husband. Bellanich v. Bellanich, 936 P.2d 141 (Alaska 1997).

The absence of fact findings on the issue of whether spouse was entitled to credit for repairs to marital home, made with non-marital assets, required remand for consideration of credit claim. Berry v. Berry, 978 P.2d 93 (Alaska 1999).

Error by trial court. —

The trial court erred in requiring the husband to pay promissory notes executed in connection with certain stock transfers to the husband and wife that were not consideration for the transfers. Dodson v. Dodson, 955 P.2d 902 (Alaska 1998).

Where the superior court expressly found that a wife was the economically disadvantaged party, the court’s failure to make provision for the costs of repairs and sale of the real property awarded to her defeated its stated goal of awarding her the greater share of the marital assets. Tollefsen v. Tollefsen, 981 P.2d 568 (Alaska 1999).

Unpaid student loans the wife accumulated while attending college, and incurred before separation, should have been treated as marital debt subject to division under subsection (a). McDougall v. Lumpkin, 11 P.3d 990 (Alaska 2000).

Superior court improperly separated a fishing vessel from the rest of the marital estate because it was a tangible asset acquired during the marriage and was, therefore, subject to division; the father did not demonstrate that the statutory factors favored him, and the mother contributed to the father's earning capacity by caring for the children and providing shore support while he fished, which could have helped make possible the purchase of the fishing vessel in the first place. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Attorney's fees. —

Where significant economic disparity exists between spouses, and the property division may not be effectuated for a significant period of time, relying solely on the property division to address attorney's fees unfairly burdens the spouse with lower earning capacity and fewer assets and thwarts the purposes of the exceptions; failure to consider the practical effect of neither awarding separate attorney's fees nor requiring a payment schedule for equalization payment is an abuse of discretion. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

Because the superior court addressed attorney's fees through the property division, and because the supreme court vacated and remanded the property division, the superior court had to also reconsider attorney's fees on remand; the structure of the attorney's fees decision issued by the superior court left the mother, in practice, unable to litigate on an equal footing. Thompson v. Thompson, 454 P.3d 981 (Alaska 2019).

B.What Constitutes Property

Courtship expenses. —

It was error to include courtship expenses in a marital estate, absent specific findings explaining why the balancing of the equities required inclusion. Barnett v. Barnett, 238 P.3d 594 (Alaska 2010).

Impact of inheritance received by one spouse. —

For the purposes of equitable division, an inheritance received by one spouse during marriage is not property acquired during coverture within the meaning of paragraph (a)(4), but constitutes a nonmarital asset of the inheriting spouse. As such, an inheritance will not be subject to distribution unless a balancing of the equities requires it. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

Jointly inherited property. —

Property inherited by spouses jointly constitutes marital property subject to division. Julsen v. Julsen, 741 P.2d 642 (Alaska 1987).

Inheritance held not marital property. —

Because husband made no promises to wife upon which she relied, and because the decision to cash in her retirement was made by her alone, the finding that husband intended to transmute his inheritance into marital property was clearly erroneous. Sampson v. Sampson, 14 P.3d 272 (Alaska 2000).

Equity accumulated during marriage. —

Equity in a marital asset that accumulates during a marriage is marital property. Thomas v. Thomas, 815 P.2d 374 (Alaska 1991).

Business goodwill. —

In determining value of business good will, if the trial court determines either that no good will exists or that the good will is unmarketable, then no value for good will should be considered in dividing the marital assets. Conversely, the good will should be considered if the evidence suggests that it has value and is marketable. Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Choosing a compromise figure somewhere between figures suggested by husband and wife is not a valid method for valuing business good will for purposes of property division in a divorce proceeding. Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Where uncontroverted evidence established that goodwill in the husband’s law practice could not be sold, he had no marketable professional goodwill in the practice, and the trial court therefore erred by including his professional goodwill in the marital estate. Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989), overruled in part, Hansen v. Hansen, 119 P.3d 1005 (Alaska 2005).

Trial court’s implicit factual finding that there was a compensable interest for wife’s contribution to the goodwill in a hotel business operated by the spouses was clearly erroneous where, at the date of valuation, the hotel had been defunct for about three years and all the proceeds from its sale had been spent on living expenses. Gilboe v. Gilboe, 789 P.2d 343 (Alaska 1990).

Trial court did not abuse its discretion in finding, after hearing the testimony of an expert witness, that the husband’s lobbying practice possessed no goodwill value. Miles v. Miles, 816 P.2d 129 (Alaska 1991).

The income-earning capacity of a sole corporation is divisible property. Rostel v. Rostel, 622 P.2d 429 (Alaska 1981), overruled, Moffitt v. Moffitt, 749 P.2d 343 (Alaska 1988).

Bachelor's degree. —

Supporting the husband for two years at the outset of a 17-year marriage during which the wife worked and the husband went to school does not compel an unequal property division, as both have benefited from the increased earning capacity gained during those two years. Nelson v. Nelson, 736 P.2d 1145 (Alaska 1987).

Pensions generally. —

Despite the fact that retirement pensions, military or otherwise, are paid out on a monthly, prospective basis, pensions are property and decrees resolving rights to property are modifiable only to the extent that relief may be obtained from any other final judgment. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Coverture fractions and retirement benefits. —

Coverture fraction is used to determine what part of a retirement benefit is marital property and what part is separate property, and it should not be used to discount the value of marital property or as a guideline for equitably dividing marital property. Gordon v. Gordon, 425 P.3d 142 (Alaska 2018).

Superior court should have characterized the retirement medical benefit as marital or separate in accordance with the actual coverture fraction, valued the benefit at its full value, and divided the marital estate, including the retirement medical benefit, between the parties according to the equitable factors; it was error for the superior court to apply the adjusted coverture fraction during the division stage, as it had no legitimate relation to the factors that the superior court considered. Gordon v. Gordon, 425 P.3d 142 (Alaska 2018).

Retirement benefits earned during marriage. —

To the extent retirement benefits have been earned during the marriage, they constitute marital assets and are subject to equitable division. Rice v. Rice, 757 P.2d 60 (Alaska 1988) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Nonvested retirement benefits. —

Trial court’s valuation of the wife’s nonvested retirement benefits at the amount of her contributions warranted a remand, where there was no finding that the pension would not vest nor was there any basis in the record upon which to determine whether the wife’s contributions would be refunded to her. Thomas v. Thomas, 815 P.2d 374 (Alaska 1991).

Retroactive application of retirement benefits amendment. —

The 1986 amendment to AS 39.35.500 , permitting retirement benefits to be assigned pursuant to a qualified domestic relations order, merely codified the means by which to distribute an asset and, as such, the amendment was procedural and could be applied retroactively. Rice v. Rice, 757 P.2d 60 (Alaska 1988) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Consideration of social security benefits permitted. —

While the court could not divide Social Security benefits, the parties' Social Security benefits could be considered in the division of their marital property as evidence of their financial condition and as one of the factors that was relevant to a fair allocation of the marital estate. Dunmore v. Dunmore, 420 P.3d 1187 (Alaska 2018).

Armed forces retired pay is not property which is divisible upon divorce, but is future income to the retiree. Cose v. Cose, 592 P.2d 1230 (Alaska 1979), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004 (U.S. 1981) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

The federal supremacy clause, U.S. Const. art. VI, cl. 2, prohibits application of state property settlement concepts relating to divorce proceedings to military retirement benefits. Cose v. Cose, 592 P.2d 1230 (Alaska 1979), cert. denied, 453 U.S. 922, 101 S. Ct. 3158, 69 L. Ed. 2d 1004 (U.S. 1981) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Military pensions are divisible marital property upon dissolution of marriage. Doyle v. Doyle, 815 P.2d 366 (Alaska 1991).

Military disability benefits. —

In arriving at an equitable distribution of marital assets, courts should only consider a party’s military disability benefits as they affect the financial circumstances of both parties; disability benefits should not, either in form or substance, be treated as marital property subject to division upon the dissolution of marriage. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Federal civil service retirement benefits. —

In contrast to military retirement and railroad retirement pay, Congress in 1978 specifically added a provision to the civil service retirement laws concerning retirement payments as marital property and, since there is no conflict between Alaska marital property rules and the federal statute (5 U.S.C. § 8345(j)(1)), there is no reason to overrule the superior court’s classification of the husband’s federal civil service retirement benefits as a marital asset. Monsma v. Monsma, 618 P.2d 559 (Alaska 1980) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Where a provision in a property settlement agreement elected survivorship benefits as a means of dividing the former husband’s civil service pension, but where the former wife remarried before age fifty-five and federal regulations therefore rendered enforcement of the agreement impossible, the superior court had no jurisdiction to enforce that provision, and the agreement was subject to modification. Williams v. Crawford, 982 P.2d 250 (Alaska 1999).

Employer's pension plan contributions. —

Awarding a non-employee spouse a percentage of an employee spouse’s contribution to a pension plan plus interest would ignore employer contributions which, to the extent they were made during the marriage, ought to be considered a marital asset. Laing v. Laing, 741 P.2d 649 (Alaska 1987) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

Unused personal leave, which may be used or converted to cash by the person accruing it, is a marital asset for purposes of the court’s division of the parties’ property in an action for divorce. Schober v. Schober, 692 P.2d 267 (Alaska 1984).

Interest on contributions to thrift plan and retirement fund made subsequent to filing for divorce should be excluded in marital assets for purposes of dividing property. Schanck v. Schanck, 717 P.2d 1 (Alaska 1986) (decided prior to 1990 amendment specifically providing for division of retirement benefits).

State supplemental employee benefits in lieu of social security are marital property subject to equitable division at divorce. Mann v. Mann, 778 P.2d 590 (Alaska 1989).

Stock shares purchased by the husband with premarital funds were marital property, where the shares were held in both spouses’ names and represented the husband’s efforts to establish a corporation to which the wife had contributed significantly by co-signing a promissory note. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

Contingent stock interest. —

In the case of a husband’s contingent stock interest, based on stock that had not been issued at the time of the divorce proceedings due to disputes over the interpretation of an employee agreement, that portion of the stock earned during the marriage constituted marital property. Lewis v. Lewis, 785 P.2d 550 (Alaska 1990).

Personal injury proceeds. —

Where a couple remained married but lived separately, divorced briefly and then remarried, proceeds related to compensation to husband for injuries suffered in a motorcycle accident prior to the separation were joint property. Husband did not meet his burden to provide evidence as to the date or financial circumstances surrounding the separation that would warrant treating some or all of the compensation as his separate property. Grace v. Peterson, 269 P.3d 663 (Alaska 2012).

Medical malpractice settlement. —

A medical malpractice settlement received prior to divorce and that includes an annuity providing for a monthly payment may be classified as marital property. However, for an equitable distribution, both spouses must prove by a preponderance of the evidence what amount or proportion of the annuity represents compensation for the loss of their separate property; i.e., compensation for the injured spouse’s post-divorce economic and noneconomic losses, on the one hand, and compensation for the other spouse’s loss of consortium, on the other hand. Bandow v. Bandow, 794 P.2d 1346 (Alaska 1990).

Fishing permit. —

Wife failed to prove that the husband's fishing permit, which was his separate premarital property, had transmuted into marital property, because both parties' testimony provided clear support for the court's finding that the wife was a crew member. Francesca S. v. Shawn K., — P.3d — (Alaska Sept. 8, 2021) (memorandum decision).

Individual fishing quota shares. —

Individual fishing quota shares are marital property even when the quota share program did not exist at the time the dissolution decree was entered; quota shares were based on the parties’ joint efforts during the marriage, and are thus analogous to income or assets received for activities during the marriage. McGee v. McGee, 974 P.2d 983 (Alaska 1999).

Collateral references. —

Community property system: status of property as separate, 20 Am. Jur. POF2d, pp. 321-370.

Abandonment of marriage without cause — defense in alimony, spousal support or separate maintenance proceedings, 27 Am. Jur. POF2d, pp. 737-776.

Validity of separation agreement as affected by provision for post-mortem payment or performance, 1 ALR2d 1178.

Provision for cessation or diminution of payments for wife’s support upon specified event, 4 ALR2d 732.

Restitution of property conveyed in consideration of previous reconciliation as condition of entertaining divorce action, 4 ALR2d 1210.

Granting relief not specifically demanded in pleading or notice in rendering default judgment in divorce or separation action, 12 ALR2d 340; 5 ALR5th 863.

Conflict of laws as to validity, effect, and construction of separation or property settlement agreements, 18 ALR2d 760.

Divorce decree as res judicata or estoppel as to previous marital status, against or in favor of third persons, 20 ALR2d 1163.

Valid foreign divorce granted upon constructive service as precluding action by spouse for alimony, support, or maintenance, 28 ALR2d 1378.

Allowance of permanent alimony to wife against whom divorce is granted, 34 ALR2d 313.

Reconciliation as affecting separation decree or agreement, 35 ALR2d 707; 36 ALR4th 502.

Death of husband as affecting alimony, 39 ALR2d 1406.

Alimony as affected by remarriage, 48 ALR2d 270; 45 ALR3d 1033.

Spouse’s right to take under other spouse’s will as affected by antenuptial or postnuptial agreement or property settlement, 53 ALR2d 475.

Right to allowance of permanent alimony in connection with decree of annulment, 54 ALR2d 1410.

Amount of compensation of attorney for services in annulment proceedings in absence of contract or statute fixing amount, 56 ALR2d 13; 57 ALR3d 475; 57 ALR3d 550; 57 ALR3d 584; 58 ALR3d 201; 58 ALR3d 235; 58 ALR3d 317; 59 ALR3d 152; 10 ALR5th 448; 17 ALR5th 366; 23 ALR5th 241; 86 ALR Fed. 866.

“Cooling off period” or lapse of time prior to entry of decree in divorce suit, 62 ALR2d 1262.

Court’s power as to support and maintenance of children in marriage annulment proceedings, 63 ALR2d 1029.

Construction and effect of clause in divorce decree providing for payment of former wife’s future medical expenses, 71 ALR2d 1236.

Property rights of spouses adjudicated in action for separate maintenance without divorce, 74 ALR2d 316.

Obligation under property settlement agreement between spouses as dischargeable in bankruptcy, 74 ALR2d 758.

Determination of property rights in wedding presents in action for annulment, 75 ALR2d 1365.

Construction and effect of provision in separation agreement that wife is to have portion of “income,” “total income,” “net income,” and the like, 79 ALR2d 609.

Decree in suit for “separation” as res judicata in subsequent suit for divorce or annulment, 90 ALR2d 745.

Divorce or separation decree as res judicata or estoppel, or as evidence, in alienation of affections or criminal conversation action, 96 ALR2d 903.

Propriety and effect of undivided award for support of more than one person, 2 ALR3d 596.

Provision or stipulation waiving wife’s right to counsel fees in event of divorce or separation action, 3 ALR3d 716.

Power of court to award absolute divorce in favor of party who desires only limited decree, or vice versa, 14 ALR3d 703.

Entering judgment or decree of divorce nunc pro tunc, 19 ALR3d 648.

Spouse’s acceptance of payments under alimony or property settlement or child support provisions of divorce judgment as precluding appeal therefrom, 29 ALR3d 1184.

Divorce, wife’s right to award of counsel fees in final judgment of trial or appellate court as affected by the fact that judgment was rendered against her, 32 ALR3d 1227.

Power of divorce court to deal with real property located in another state, 34 ALR3d 962.

Right of child to enforce provisions for his benefit in parents’ separation or property settlement agreement, 34 ALR3d 1357.

Income of child from another source as excusing parent’s compliance with support provisions of divorce decree, 39 ALR3d 1292.

Mutual mistake as to tax consequences as ground for relief against property settlement, 39 ALR3d 1376.

Annulment of later marriage as reviving prior husband’s obligation under alimony decree or separation agreement, 45 ALR3d 1033.

Consideration of tax liability or consequences in determining alimony or property settlement provisions, 51 ALR3d 461; 9 ALR5th 568.

Retrospective increase in allowance for alimony, separate maintenance, or support, 52 ALR3d 156.

Provision in divorce decree that one party obtain or maintain life insurance for benefit of other party or child, 59 ALR3d 9.

Propriety of consideration of, and disposition as to, third persons’ property claims in divorce litigation, 63 ALR3d 373.

Divorce decree purporting to award life insurance to husband as terminating wife-beneficiary’s rights notwithstanding failure to formally change beneficiary, 70 ALR3d 348.

Evaluation of interest in law firm or medical partnership for purposes of division of property in divorce proceedings, 74 ALR3d 621.

Right to allowance of permanent alimony in connection with decree of annulment, 81 ALR3d 281.

Statute expressly allowing alimony to wife, but not expressly allowing alimony to husband, as unconstitutional sex discrimination, 85 ALR3d 940.

Adulterous wife’s right to permanent alimony, 86 ALR3d 97.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no fault divorce, 86 ALR3d 1116.

Father’s liability for support of child furnished after divorce decree which awarded custody to mother but made no provision for support, 91 ALR3d 530.

Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses, 94 A.L.R.3d 176.

Propriety in divorce proceedings of awarding rehabilitative alimony, 97 ALR3d 740.

Propriety of decree in proceeding between divorced parents to determine mother’s duty to pay support for children in custody of father, 98 ALR3d 1146.

Responsibility of noncustodial divorced parent to pay for, or contribute to, costs of child’s college education, 99 ALR3d 322.

Validity and effect, as between former spouses, of agreement releasing parent from payment of child support provided for in an earlier divorce decree, 100 ALR3d 1129.

Spouse’s professional degree or license as marital property for purposes of alimony, support, or property settlement, 4 ALR4th 1294.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 A.L.R.4th 1015.

Husband’s death as affecting periodic payment provision of separation agreement, 5 ALR4th 1153.

Removal by custodial parents of child from jurisdiction in violation of court order as justifying termination, suspension, or reduction of child support payments, 8 ALR4th 1231.

Appointment or discharge of receiver for marital or community property necessitated by suit for divorce or separation, 15 ALR4th 224.

Effect of trial court giving consideration to needs of children in making property division — modern status, 19 ALR4th 239.

Validity and enforceability of escalation clause in divorce decree relating to alimony and child support, 19 ALR4th 830.

Spouse’s liability, after divorce, for community debt contracted by other spouse during marriage, 20 ALR4th 211.

Divorce and separation: Appreciation in value of separate property during marriage without contribution by either spouse as separate or community property, 24 ALR4th 453.

Excessiveness or adequacy of amount of money awarded for alimony and child support combined, 27 ALR4th 1038.

Necessity that divorce court value property before distributing it, 51 ALR4th 11.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by circumstances surrounding execution—modern status, 53 ALR4th 85.

Enforceability of premarital agreements governing support or property rights upon divorce or separation as affected by fairness or adequacy of those terms—modern status, 53 ALR4th 161.

Propriety of distribution leaving both parties with substantial ownership interest in same business, 56 ALR4th 862.

Divorce order requiring that party not compete with former marital business, 59 ALR4th 1075.

Prejudgment interest awards in divorce cases, 62 ALR4th 156.

Voluntary contributions to child’s education expenses as factor justifying modification of spousal support award, 63 ALR4th 436.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Effect of court order prohibiting sale or transfer of property on party’s right to change beneficiary of insurance policy, 68 ALR4th 929.

Attributing undisclosed income to parent or spouse for purposes of making child or spousal support award, 70 ALR4th 173.

Goodwill in medical or dental practice as property subject to distribution on dissolution of marriage, 76 ALR4th 1025.

Accrued vacation, holiday time, and sick leave as marital or separate property, 78 ALR4th 1107.

Divorce and separation: goodwill in law practice as property subject to distribution on dissolution of marriage, 79 ALR4th 171.

Authority of court, upon entering default, to make order for child custody or support which were not specifically requested in pleadings of prevailing party, 5 ALR5th 863.

Consideration of tax consequences in distribution of marital property, 9 ALR5th 568.

Award of interest on deferred installment payments of marital asset distribution, 10 ALR5th 191.

Recovery under state law of attorney’s fees by lay pro se litigant, 14 ALR5th 947.

Consideration of obligated spouse’s earnings from overtime or “second-job” held in addition to regular full-time employment in fixing alimony or child support awards, 17 ALR5th 143.

Excessiveness or adequacy of attorneys’ fees in domestic relations cases, 17 ALR5th 366.

Loss of income due to incarceration as affecting child support obligation, 27 ALR5th 540.

Treatment of depreciation expenses claimed for tax or accounting purposes in determining ability to pay child or spousal support, 28 A.L.R.5th 46.

Copyright, patent, or other intellectual property as marital property for purposes of alimony, support, or divorce settlement, 80 ALR5th 487.

Divorce decree or settlement agreement as affecting divorced spouse’s right to recover as named beneficiary on former spouse’s individual retirement account, 99 ALR5th 637.

Propriety of equalizing income of spouses through alimony awards, 102 ALR5th 395.

Right to credit on child support arrearages for time parties resided together after separation or divorce, 104 ALR5th 605.

Right to credit against child support arrearages for time child spent in custody of noncustodial parent, other than for visitation or under court order, without custodial parent’s approval, 108 ALR5th 359.

Divorce and separation: Determination of whether proceeds from personal injury settlement or recovery constitute marital property, 109 ALR5th 1.

Division of lottery proceeds in divorce proceedings, 124 ALR5th 537.

Propriety of “hindsight” charge in medical malpractice actions, 124 ALR5th 623.

Pre-emptive effect of Employee Retirement Income Security Act (ERISA) provisions (29 USCS §§ 1056(d)(3), 1164(a), 1144(b)(7)) with respect to orders entered in domestic relations proceedings, 116 ALR Fed. 503.

Sec. 25.24.165. Change of name in divorce or annulment.

  1. In a judgment in an action for divorce or action declaring a marriage void, the court may change the name of either of the parties.
  2. If a party seeks a change of name to a name other than a prior name, the court shall set a date for hearing not less than 40 days after filing of the action. Notice of the application for a change of name to a name other than a prior name and the date of the hearing shall be published once each week for four consecutive calendar weeks before the hearing in a newspaper of general circulation in the judicial district. The court may also require posting of the notice at locations it considers appropriate. The court shall by judgment authorize the party to assume the new name not less than 30 days after issuance of the judgment, if the court is satisfied that no reasonable objection exists to assumption of the new name. Within 10 days after issuance of the judgment the party shall publish notice of the approval of the name change in a newspaper of general circulation in the judicial district. The court may also require the posting of a copy of the judgment.

History. (§ 7 ch 130 SLA 1990)

Cross references. —

For effect of the enactment of this section on Alaska Rule of Civil Procedure 84(a), see § 20, ch. 130, SLA 1990 in the Temporary and Special Acts.

Notes to Decisions

A child is not a party to a divorce action within the meaning of the name-change provision. Lone Wolf v. Lone Wolf, 741 P.2d 1187 (Alaska 1987) (decided under former AS 25.24.160(a)(5) ).

Sec. 25.24.170. Modification of judgment.

  1. Subject to AS 25.20.110 , any time after judgment the court, upon the motion of either party, may set aside, alter, or modify so much of the judgment as may provide for alimony, for the appointment of trustees for the care and custody of the minor children or for their nurture and education, for the care, nurture, and education of unmarried 18-year-old children of the marriage while they are actively pursuing a high school diploma or an equivalent level of technical or vocational training and living as dependents with a parent, guardian, or designee of the parent or guardian, or for the maintenance of either party to the action.
  2. For the purposes of a motion to modify or terminate child support, the adoption or enactment of guidelines or a significant amendment to guidelines for determining support is a material change in circumstances if the guidelines are relevant to the motion. As necessary to comply with 42 U.S.C. 666, a periodic modification of child support may be made without a showing of a material change in circumstances if the child support order being modified on the periodic basis has not been modified or adjusted during the three years preceding the periodic modification.

History. (§ 12.15 ch 101 SLA 1962; am § 4 ch 88 SLA 1982; am § 2 ch 68 SLA 1988; am § 3 ch 117 SLA 1992; am § 44 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 09.55.220. Renumbered in 1983.

In 1988 the word “terminate” was substituted for “revoke” in (b) of this section to correct a manifest error in sec. 2, ch. 68, SLA 1988.

Cross references. —

For court rule on modifications of child support orders, see Rule 90.3(h), Alaska Rules of Civil Procedure. For effect of amendments to this section made by ch. 87, SLA 1997 on court rules, see § 152, ch. 87, SLA 1997 in the 1997 Temporary and Special Acts.

Notes to Decisions

Analysis

I.General Consideration

This section and former AS 09.55.210 (now AS 25.24.160 ) are predicated upon the court’s jurisdiction of the parties and the subject matter. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Effect of 1992 amendment. —

The 1992 amendment to this section was a material change in circumstances for any custodial parent who had an unmarried child over eighteen, living at home, who was still attending high school. Scully v. Scully, 987 P.2d 743, 988 P.2d 743 (Alaska 1999).

Because the 1992 amendment to this section extends the time during which a parent may be required to pay child support, it qualifies as a change in the law governing child support guidelines. Scully v. Scully, 987 P.2d 743, 988 P.2d 743 (Alaska 1999).

Alimony decree may be modified. —

Alimony payments may be set aside, altered, or modified under this section any time after judgment. Hinchey v. Hinchey, 722 P.2d 949 (Alaska 1986).

A decree providing for alimony, whether or not based upon a contract, may be modified or terminated upon the death of the husband, the remarriage of the wife, or a change in the financial condition of the parties. Goggans v. Osborn, 237 F.2d 186, 16 Alaska 451 (9th Cir. Alaska 1956).

But where the judgment in a divorce action makes no provision for maintenance, there is nothing to modify under this section. Green v. Green, 113 F. Supp. 697, 14 Alaska 395 (D. Alaska 1953).

Challenge of an order of support as unconstitutional is not a request for modification under this section, but is a request for relief from a prior order of judgment under Alaska Civ. R. 60. Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).

Section is inapplicable to interlocutory decrees. —

This section does not give the court power to modify provision of an interlocutory decree requiring the husband to pay his wife sums for attorney’s fees for disbursements. Scudder v. Scudder, 11 Alaska 303 (D. Alaska 1947).

Modification of divorce decrees in respect to accumulated payments past due is not allowed. Robbins v. Robbins, 647 P.2d 589 (Alaska 1982).

A property division incorporated within a divorce decree is a final judgment and is modifiable to the same extent as any equitable decree of the court. However, because the parties did not file their respective motions within one year of the decree, the trial court erred in modifying the decree. O'Link v. O'Link, 632 P.2d 225 (Alaska 1981); Stone v. Stone, 647 P.2d 582 (Alaska 1982); Allen v. Allen, 645 P.2d 774 (Alaska 1982).

Despite the fact that retirement pensions, military or otherwise, are paid out on a monthly, prospective basis, pensions are property and decrees resolving rights to property are modifiable only to the extent that relief may be obtained from any other final judgment. Clauson v. Clauson, 831 P.2d 1257 (Alaska 1992).

Property settlement not modifiable. —

Statutory provisions for divorce do not authorize a court to modify the terms of a property settlement. Stone v. Stone, 647 P.2d 582 (Alaska 1982).

This section does not authorize a court to modify a decree as it relates to property rights. Allen v. Allen, 645 P.2d 774 (Alaska 1982).

This section does not give the superior court the authority to modify an agreement incorporated into a property award with regard to the marital portion of benefits, such as military pension benefits. Husband’s motion to modify the agreement on the basis of changed financial circumstances was denied except as to the non-marital portion of his military pension. Wirtz v. Wirtz, — P.3d — (Alaska Mar. 24, 2010) (memorandum decision).

Court may not be deprived of jurisdiction retained over custody of children. —

Where the court retained jurisdiction over the custody of the children, any action to divest the court of that jurisdiction would be void, and could not in any way divest the court of authority to award the custody of the children to a proper person. In re Brown's Children, 7 Alaska 411 (D. Alaska 1926).

Removal of children from state does not affect right to modify decree. —

The power of the court to modify a divorce decree as to care and custody of a minor child is not affected by the removal of the child from the jurisdiction by the parent to whom he was awarded. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Since subject matter is still before court. —

Where children are removed beyond the limits of the state after the decree has been rendered, the subject matter remains within the jurisdiction of the court, so that its judgment in an application for modification is valid and binding upon the parent to whom the custody has been decreed, and is enforceable in another state. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

But custody decrees are necessarily provisional and temporary in character and are ordinarily not res adjudicata either in the same court or that of a foreign jurisdiction, except as to the facts before the court at the time of the decree. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

And state to which child is removed need not respect decree. —

Where both of the parents were resident in Alaska and subject to the jurisdiction of the Alaska courts, and one asked for the modification of the original decree of the court awarding the custody of their child to the father, but it appeared that since the rendition of that decree the child had been taken out of Alaska and was then living in Minnesota with the brother of the father of the child, the court held that it had the power to modify the decree as to the custody of the child in any way it saw fit, and might even punish the father for contempt for failure to obey its decree, but that the state of Minnesota would not be bound to respect the decree. Weber v. Weber, 10 Alaska 214 (D. Alaska 1942).

Extension of support past majority not a modification. —

Barring an affirmative provision in the original support order or in an incorporated agreement establishing that the issue of post-majority support was expressly considered and decided, a subsequent motion to extend the duration of support is not a motion to modify the original order and need not allege a change of circumstances. Department of Revenue, Child Support Enforcement Div. v. McCormick, 3 P.3d 930 (Alaska 2000).

In determining that a former wife should receive 60 percent of the marital property, the trial court did not allocate property to the wife to account for a child’s future college expenses, even though it noted that the child would have to look to her mother as the only 100 percent reliable underwriter of a future college expense. Cartee v. Cartee, 239 P.3d 707 (Alaska 2010).

Retroactive modification of child support. —

The superior court abused its discretion when it retroactively modified the interim child support order in the absence of extraordinary circumstances. Jones v. Jones, 666 P.2d 1031 (Alaska 1983).

Standard for certain modifications of support orders was altered by this section, amending Alaska R. Civ. P. 90.3; support may be modified without a showing of changed circumstances when necessary to comply with federal law. Lawson v. Lawson, 108 P.3d 883 (Alaska 2005).

Applicability of provision regarding post-majority child support. —

While a father claimed that this section did not apply because his son’s aunt and uncle, with whom the son was living temporarily, did not meet the statutory requirement of parent, guardian, or designee of the parent or guardian, those definitions were premised on the existence of legal custody, which did not exist after the son turned 18. Brotherton v. Warner, 240 P.3d 1225 (Alaska 2010).

Post-majority child educational support. —

In light of former AS 09.55.210 and 09.55.220 (now AS 25.24.160 and this section, respectively) it does not appear that the legislature intended to provide for post-majority educational support in either an original decree, or in a modification of the original decree, and to the extent Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Appellate court presumed that the superior court intended a support order to continue for any 18-year-olds actively pursuing a high school diploma. Ruppe v. Ruppe, 358 P.3d 1284 (Alaska 2015).

It was no error to continue a father's child support obligation after a child turned 18 because (1) the child's economic situation did not change, (2) the child lived at home the same amount of time while attending boarding school, and (3) the manner in which the child pursued a high school diploma did not change. Kack v. Kack, — P.3d — (Alaska June 1, 2016) (memorandum decision).

Rehabilitative alimony is modifiable only when there is a material and substantial change in circumstances related to its purpose. Musgrove v. Musgrove, 821 P.2d 1366 (Alaska 1991).

If a recipient of equitable rehabilitative support achieves rehabilitation or stops trying to obtain education or training to improve her employment skills and earning capacity, that changed circumstance justifies termination of maintenance. However, achievement or cessation of rehabilitative efforts cannot be presumed by the fact of remarriage. Musgrove v. Musgrove, 821 P.2d 1366 (Alaska 1991).

Departure so as to ensure intended benefits. —

Trial judge did not abuse her discretion in departing from the divorce decree by ordering the husband to make a deposit into each of his children’s educational accounts when the wife needed to use the children’s permanent fund dividends due to the husband being in arrears in his child support payment, as it was within the judge’s discretion to depart from the decree to ensure that both the wife and the children received the intended benefits. Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Applied in

Johnson v. Johnson, 544 P.2d 65 (Alaska 1975); Veazey v. Veazey, 560 P.2d 382 (Alaska 1977); Leighton v. Leighton, 563 P.2d 882 (Alaska 1977); Cedergreen v. Cedergreen, 811 P.2d 784 (Alaska 1991).

Quoted in

Brenton v. Brenton, 564 P.2d 1225 (Alaska 1977); Van Brocklin v. Van Brocklin, 635 P.2d 1186 (Alaska 1981).

Cited in

Johansen v. State, 491 P.2d 759 (Alaska 1971); Richmond v. Richmond, 779 P.2d 1211 (Alaska 1989).

II.Grounds for Modification

General rule. —

Generally, the rule is that modification of a support order may be obtained only where there has been a material and substantial change in circumstances occurring subsequent to the original order. The change ordinarily must be more or less permanent rather than temporary. Curley v. Curley, 588 P.2d 289 (Alaska 1979); Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).

Integral provisions not subject to modification. —

Superior court properly denied spouse’s motion to modify his monthly stipend obligation to wife, as that provision requiring monthly payments was an integral part of the couple’s property settlement and therefore was not modifiable based on a change in former wife’s circumstances including completion of vocational training, retention of gainful employment, and subsequent remarriage. Skvarch v. Skvarch, 876 P.2d 1110 (Alaska 1994).

Retroactive operation of subsection (b). —

The legislature intended the 1988 amendment adding subsection (b) to operate retroactively. Charlesworth v. State, Child Support Enf't Div., 779 P.2d 792 (Alaska 1989).

An order may be modified notwithstanding the fact that it was based on a separation agreement or stipulation signed by the parties. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

The adoption of Civil Rule 90.3 constituted a material change of circumstances within the meaning of subsection (b). Charlesworth v. State, Child Support Enf't Div., 779 P.2d 792 (Alaska 1989); Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

A change in decisional law is not a change in circumstances that would allow the superior court to modify a divorce decree under this section, eliminating the portion of the decree requiring the husband to pay post-majority educational child support. Lawrence v. Lawrence, 718 P.2d 142 (Alaska 1986).

Adoption of the child support guidelines rule was itself a substantial change in circumstances. Perry v. Newkirk, 871 P.2d 1150 (Alaska 1994).

Determination of change in circumstances. —

The appropriate benchmark from which to consider whether there has been a change of circumstances is the last time the issue of alimony and factors relevant to modification were actually considered. Burrell v. Burrell, 696 P.2d 157 (Alaska 1984).

Neither intimate personal relationships between the dependent former spouse and a third party or reasonable efforts by the dependent former spouse to reduce expenses constitute a material and substantial change in circumstances. Musgrove v. Musgrove, 821 P.2d 1366 (Alaska 1991).

Factors to be considered. —

In determining whether a change in circumstances justifies a reduction in one parent’s child support obligation, the court must consider both the needs of the child or children supported as well as the needs and financial abilities of both parties. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

One factor that may be considered is whether the child’s needs are less than they were at the time of the divorce. More commonly, however, the child’s needs are the same or greater than they were at the time of entry of a support order, and it is the moving parent’s needs that are greater or whose income is less. In such cases, the trial court must examine the financial situation of both parents and determine whether the equities justify placing a greater burden on one and a correspondingly lesser burden on the other. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

A spousal support judgment in favor of the wife was not void due to a lack of due process when the judgment was entered because the husband had notice that spousal support would be addressed, he knew the wife’s mental state and indigence would be relied on for an award, and a pretrial order explicitly included spousal support as a trial issue. The husband was not barred from discovering the wife’s finances or mental state, and his failure to conduct discovery did not mean his due process notice was insufficient. The order finding the judgment void did not address the sufficiency of the trial court’s procedures but the sufficiency of the evidence, which was only properly addressed on appeal, which was not pursued. Blaufuss v. Ball, 305 P.3d 281 (Alaska 2013).

Substantial reduction in or cessation of income. —

As a general rule, a substantial reduction in or cessation of a spouse’s income is a factor that may justify or require a reduction in alimony or maintenance. Hinchey v. Hinchey, 722 P.2d 949 (Alaska 1986).

Where a settlement agreement set husband’s child support at a minimum amount, “irrespective of his income” and subsequently his income fell 15% below his income in the year of the agreement, denial of his motion to modify support on the ground that unequal distribution of property provided sufficient consideration for the agreement was error; husband was entitled to modification of his obligation under the guidelines of Civil Rule 90.3. Aga v. Aga, 941 P.2d 1260 (Alaska 1997).

Change in number of children supported. —

Because there were facts alleged that, if true, showed a material change, including whether the daughter still lived with the father or was being financially supported by him, it was improper to deny the mother’s motion to modify child support without a hearing. Marian S. v. Pierce S., — P.3d — (Alaska Sept. 12, 2012) (memorandum decision).

Failure to make specific showings of extent of decrease. —

Although father alleged his income had changed drastically, he did not make any specific showings of the extent to which his income had decreased in relation to his expenses to warrant modifying his support obligation. Dewey v. Dewey, 886 P.2d 623 (Alaska 1994).

Payments exceeding cap set in rule. —

An agreement that based child support payments on income exceeding the cap set forth in Alaska R. Civ. P. 90.3(c)(2) was subject to modification upon a showing of a material change of circumstances. Flannery v. Flannery, 950 P.2d 126 (Alaska 1997).

Temporary loss of income by obligor. —

A trial court should be reluctant to modify child support obligations when the obligor’s loss of income appears only temporary. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

When a court is asked to reduce a child support obligation where the parent seeking the reduction is temporarily employed at an income level that does not accurately reflect past and future income levels, the court may properly consider the availability of liquid assets (such as a father’s pension fund) to satisfy an ongoing child support obligation. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

Even where a noncustodial parent loses a job by other than voluntary resignation, the trial court must consider all the circumstances of the change in employment to determine whether a modification of child support is warranted. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

Recalculation of obligations. —

The fact that one method of child support calculation yielded a result more than 15% different from another method used in an extant order was not a material change in circumstances authorizing modification of the order. Bunn v. House, 934 P.2d 753 (Alaska 1997).

Removal of the children from the state should not automatically shift custody without a hearing. Sherry v. Sherry, 622 P.2d 960 (Alaska 1981).

The superior court did not abuse its discretion in refusing to reduce a father’s child support obligation. —

Where father sought a reduction in support less than a year after entry of the divorce decree on the basis that his income had been reduced and his expenses had increased, but some of his expenses were related to providing housing for himself and his emancipated son, the superior court did not abuse its discretion in refusing to reduce the father’s child support obligation. Curley v. Curley, 588 P.2d 289 (Alaska 1979).

Inadequate grounds for modification. —

Trial court did not err in its valuation of a husband’s child support payments; the wife did not produce any calculation showing that he had a change in circumstances that would increase her entitlement by at least 15 percent. Williams v. Williams, 252 P.3d 998 (Alaska 2011).

Superior court did not abuse its discretion in denying a former wife’s motion to extend her spousal support because none of her arguments identified a material and substantial change in circumstances and the court had thoroughly discussed her health problems, age, employment history, medical expenses, and health insurance. Knudsen v. Berg, — P.3d — (Alaska Mar. 5, 2014) (memorandum decision).

Remarriage requires termination of alimony. —

Remarriage of a former spouse constitutes a substantial change of circumstances that requires the termination of alimony as a matter of law. Voyles v. Voyles, 644 P.2d 847 (Alaska 1982).

Death of wife given custody warrants revising decree. —

Where the wife was given custody of the children of the marriage in a divorce action, and the wife subsequently died, the status of the parties was so changed that the court was warranted in revising the original decree. In re Brown's Children, 7 Alaska 411 (D. Alaska 1926).

But mistakes do not. —

The change in circumstances test relates to changes in external facts, not to mistakes; thus, where support order was based upon recipient’s miscalculation of the length of time required to complete a doctoral program, her subsequent realization of her error did not warrant modification of the support order. Larson v. Larson, 661 P.2d 626 (Alaska 1983).

In a child support modification proceeding, the trial court abused its discretion under Alaska R. Civ. P. 90.3(h)(2) by failing to make a child support modification order effective the date the father was served with the petition, as well as by denying post-majority support for the parties’ daughter. Dep't of Revenue, Child Support Servs. Div. ex rel. Peterson v. Kosto, — P.3d — (Alaska Mar. 4, 2009) (memorandum decision).

Collateral references. —

Husband’s default, contempt or other misconduct as affecting modification of decree for support, 6 ALR2d 835.

Retrospective modification of, or refusal to enforce, decree for alimony, separate maintenance, or support, 6 ALR2d 1277, 52 ALR3d 156.

Changing financial conditions or needs of husband or wife as grounds for modification of decree for alimony or maintenance, 18 ALR2d 10.

Court’s power to vacate decree of divorce or separation upon request of both parties, 3 A.L.R.3d 1216.

Mutual mistake as to tax consequences as ground for relief against property settlement, 39 ALR3d 1376.

Annulment of later marriage as reviving prior husband’s obligations under alimony decree or separation agreement, 45 ALR3d 1033.

Divorced woman’s subsequent sexual relations or misconduct as warranting, alone or with other circumstances, modification of alimony decree, 98 ALR3d 453.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 A.L.R.4th 1015.

Husband’s death as affecting periodic payment provision of separation agreement, 5 ALR4th 1153.

Power to modify spousal support award for a limited term, issued in conjunction with divorce, so as to extend the term or make the award permanent, 62 ALR4th 180.

Divorce: Voluntary contributions to child’s education expenses as factor justifying modification of spousal support award, 63 ALR4th 436.

Death of obligor parent as affecting decree for support of child, 14 ALR5th 557.

Retirement of husband as change of circumstances warranting modification of divorce decree — Prospective retirement, 110 ALR5th 237.

Sec. 25.24.180. Effect of divorce.

The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons.

History. (§ 12.16 ch 101 SLA 1962)

Revisor’s notes. —

Formerly AS 09.55.230. Renumbered in 1983.

Collateral references. —

Effect of annulment of marriage on rights arising out of prior acts of or transactions between parties, 2 ALR2d 637.

Pendency of prior action for absolute or limited divorce between same spouses in same jurisdiction as precluding subsequent action of like nature, 31 ALR2d 442.

Effect of divorce upon right to administer upon estate of spouse, 34 ALR2d 876.

Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 ALR2d 570.

Paternity, legitimacy, or legitimation as determined in action for divorce, separation, or annulment upon vacating or opening decree, 65 ALR2d 1381.

Effect of divorce on homestead, 84 ALR2d 703.

Effect of divorce on widow’s pension or bonus rights or social security benefits, 85 ALR2d 242.

Presumption of legitimacy of child born after annulment, divorce, or separation, 46 ALR3d 158.

Divorce or annulment as affecting will previously executed by husband or wife, 71 ALR3d 1297.

Spouse’s liability, after divorce, for community debt contracted by other spouse during marriage, 20 ALR4th 211.

Article 2. Dissolution of Marriage.

Cross references. —

For interaction between ch. 260, SLA 1976 and court rules in effect at that time, see § 2, ch. 260, SLA 1976, in the Temporary and Special Acts.

Collateral references. —

24 Am. Jur. 2d Divorce and Separation, § 1 et seq.

Dissolution of marriage on statutory ground of incompatibility, 19 Am. Jur. POF2d, pp. 221-238.

27A C.J.S., Divorce, § 21 et seq.

Fault as consideration in alimony, spousal support, or property division awards pursuant to no fault divorce, 86 ALR3d 1116.

What constitutes “incompatibility” within statute specifying it as substantive ground for divorce, 97 ALR3d 989.

Sec. 25.24.200. Dissolution of marriage.

  1. A husband and wife together may petition the superior court for the dissolution of their marriage under AS 25.24.200 25.24.260 if the following conditions exist at the time of filing the petition:
    1. incompatibility of temperament has caused the irremediable breakdown of the marriage;
    2. if there are unmarried children of the marriage under the age of 19 or the wife is pregnant, and the spouses have agreed on which spouse or third party is to be awarded custody of each minor child of the marriage and the extent of visitation, including visitation by grandparents and other persons if in the child’s best interests, and support to be provided on the children’s behalf, whether the payments are to be made through the child support services agency, and the tax consequences of that agreement;
    3. the spouses have agreed as to the distribution of all real and personal property that is jointly owned or community property under AS 34.77, including retirement benefits and the payment of spousal maintenance, if any, and the tax consequences resulting from these payments; the agreement must be fair and just and take into consideration the factors listed in AS 25.24.160(a)(2) and (4) so that the economic effect of dissolution is fairly allocated; and
    4. the spouses have agreed as to the payment of all unpaid obligations incurred by either or both of them and as to payment of obligations incurred jointly in the future.
  2. A husband or wife may separately petition for dissolution of their marriage under AS 25.24.200 25.24.260 if the following conditions exist at the time of filing the petition:
    1. incompatibility of temperament, as evidenced by extended absence or otherwise, has caused the irremediable breakdown of the marriage;
    2. the petitioning spouse has been unable to ascertain the other spouse’s position in regard to the dissolution of their marriage and in regard to the fair and just division of property, including retirement benefits, spousal maintenance, payment of debts, and custody, support and visitation because the whereabouts of the other spouse is unknown to the petitioning spouse after reasonable efforts have been made to locate the absent spouse; and
    3. the other spouse cannot be personally served with process inside or outside the state.
  3. Except as provided in AS 25.24.220(i) , a spouse who has been personally served with a copy of a petition filed under (a) of this section may execute an appearance, waiver of time to answer, and waiver of notice of hearing. The appearance and waivers must include an acknowledgment signed before an officer authorized to administer an oath or affirmation that the spouse being served has read the petition; assents to the terms relating to custody of the children, child support, visitation, spousal maintenance taking into consideration the factors listed in AS 25.24.160(a)(2) , and tax consequences, division of property, including retirement benefits and taking into consideration the factors listed in AS 25.24.160(a)(4) , ownership of animals, taking into consideration the well-being of the animals, and allocation of debts; agrees that the conditions otherwise required by (a) of this section exist; agrees that the petition constitutes the entire agreement between the parties; understands fully the nature and consequences of the action; and is not signing the appearance and waivers under duress or coercion.
  4. The action created under this section is separate from the action created by AS 25.24.010 . The procedures prescribed by AS 25.24.200 25.24.260 do not apply to an action brought under AS 25.24.010 , nor do procedures prescribed under AS 25.24.010 — 25.24.180 apply to an action filed under this section, except as specifically provided.
  5. Spousal maintenance and a division of property must fairly allocate the economic effect of dissolution and take into consideration the factors listed in AS 25.24.160(a)(2) and (4).
  6. A petition filed under (a) or (b) of this section may, if an animal is owned by a husband and wife together, provide for the ownership or joint ownership of the animal. The ownership or joint ownership of an animal provided for in a petition under (a) or (b) of this section must take into consideration the well-being of the animal.

History. (§ 1 ch 260 SLA 1976; am § 2 ch 15 SLA 1982; am §§ 8, 9 ch 130 SLA 1990; am § 4 ch 117 SLA 1992; am § 7 ch 42 SLA 1998; am §§ 20, 21 ch 60 SLA 2016)

Revisor’s notes. —

Formerly AS 09.55.231 . Renumbered in 1983. The reference to “ AS 34.77” in paragraph (a)(3) was substituted for “ AS 34.75” in 1998 to reflect the 1998 renumbering of the chapter.

In 2004, “child support enforcement agency” was changed to “child support services agency” in (a) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Effect of amendments. —

The 2016 amendment, effective January 17, 2017, in (c), in the second sentence, inserted “ownership of animals, taking into consideration the well-being of the animals,” preceding “and allocation of debts”; added (f).

Cross references. —

For jurisdiction of court to consider child custody, see AS 25.30.300 .

Notes to Decisions

Jurisdiction. —

The superior court has no jurisdiction to make the “child custody determination” that is a prerequisite to the entry of a decree of dissolution under AS 25.24.230(a) unless one of the conditions listed in former AS 25.30.020(a) (for a similar provision see now AS 25.30.300 ) exists. Layne v. Niles, 632 P.2d 234 (Alaska 1981).

Support of illegitimate children. —

Although a husband’s support obligation is regarded as extending only to children “of the marriage,” a mistake in the determination of paternity is not regarded as jurisdictional error and the superior court can enforce an agreement to support a child even though both parties to the dissolution action later admit that the child was born out of wedlock. J.C. v. M.L.C., 668 P.2d 1351 (Alaska 1983).

Cited in

Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982); Brooks v. Brooks, 733 P.2d 1044 (Alaska 1987); Department of Revenue, Child Support Enforcement Div. v. A.H., 880 P.2d 1048 (Alaska 1994).

Collateral references. —

Right to credit against child support arrearages for time children spent in custody of noncustodial parent pursuant to visitation or court order, 118 ALR5th 385.

Right to credit on child-support arrearages for money given directly to child, 119 ALR5th 445.

Right to credit against child support arrearages for time child lived with noncustodial parent, other than for visitation or by court order, with approval of custodial parent, 120 ALR5th 229.

Right to credit on child support for contributions to housing costs, utility bills, and other alleged household necessities made for child’s benefit while child is not living with obligor parent, 123 ALR5th 565.

Right to credit on child support arrearages for gifts to child, 124 ALR5th 441.

Division of lottery proceeds in divorce proceedings, 124 ALR5th 537.

Sec. 25.24.210. Petition for dissolution.

  1. The caption in a petition for dissolution of marriage under AS 25.24.200 25.24.260 shall be styled substantially “In the Matter of the Dissolution of the Marriage of . . . . . . . . . . . . . . and . . . . . . . . . . . . ..”
  2. The petition shall be filed with the superior court and shall either
    1. recite that the conditions enumerated under AS 25.24.200(a) exist and shall be signed and verified by both of the petitioners or by one petitioner, if that petitioner personally serves the petition on the other spouse in accordance with the Alaska Rules of Civil Procedure in anticipation that the spouse will comply with AS 25.24.200(c) ; or
    2. recite that the conditions enumerated under AS 25.24.200(b) exist and be signed and verified by one of the petitioners.
  3. The petition shall state that the spouse or spouses executing the petition consent to the jurisdiction of the court.
  4. The petition shall request that the marriage be dissolved and that the name of a spouse be changed, if desired by that spouse.
  5. If the petition is filed by both spouses under AS 25.24.200(a) , the petition must state in detail the terms of the agreement between the spouses concerning the custody of children, child support in terms of periodic payments and in terms of health care expenses, visitation, spousal maintenance and tax consequences, if any, and fair and just division of property, including retirement benefits. A petition filed by both spouses under AS 25.24.200(a) may provide for the ownership or joint ownership of an animal, taking into consideration the well-being of the animal. Agreements on spousal maintenance and property division must fairly allocate the economic effect of dissolution and take into consideration the factors listed in AS 25.24.160(a)(2) and (4). In addition, the petition must state
    1. the respective occupations of the petitioners;
    2. the income, assets, and liabilities of the respective petitioners at the time of filing the petition;
    3. the date and place of the marriage;
    4. the name, date of birth, and current marital, educational, and custodial status of each child born of the marriage or adopted by the petitioners who is under the age of 19;
    5. whether the wife is pregnant;
    6. whether either petitioner requires medical care or treatment;
    7. whether any of the following has been issued or filed during the marriage by or regarding either spouse as defendant, participant, or respondent:
      1. a criminal charge of a crime involving domestic violence;
      2. a protective order under AS 18.66.100 - 18.66.180 ;
      3. injunctive relief under former AS 25.35.010 or 25.35.020; or
      4. a protective order issued in another jurisdiction and recognized in this state under AS 18.66.140 ;
    8. whether either petitioner has received the advice of legal counsel regarding a divorce or dissolution;
    9. other facts and circumstances that the petitioners believe should be considered;
    10. that the petition constitutes the entire agreement between the petitioners; and
    11. any other relief sought by the petitioners.
  6. A petition filed under this section must include or be accompanied by a record of the social security numbers, if ascertainable, of the following persons:
    1. both spouses to the marriage being dissolved;
    2. each child whose rights are being addressed in the petition for dissolution.

History. (§ 1 ch 260 SLA 1976; am §§ 10, 11 ch 130 SLA 1990; am § 5 ch 117 SLA 1992; am § 48 ch 64 SLA 1996; am § 45 ch 87 SLA 1997; am §§ 15, 16 ch 132 SLA 1998; am § 5 ch 106 SLA 2000; am § 22 ch 60 SLA 2016; am § 21 ch 13 SLA 2017)

Revisor’s notes. —

Formerly AS 09.55.232. Renumbered in 1983.

Cross references. —

For effect of the 1990 amendment to (d) of this section on Alaska Rule of Civil Procedure 84(a), see § 20, ch. 130, SLA 1990 in the Temporary and Special Acts. For effect of amendments to this section made by ch. 87, SLA 1997 on court rules, see § 151, ch. 87, SLA 1997 in the 1997 Temporary and Special Acts. For purpose and findings provisions related to the 1998 amendments to this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 17, 2017, in (e), inserted the second sentence of the introductory language.

The 2017 amendment, effective September 17, 2017, in (e)(7)(D), substituted “recognized in this state” for “filed with the court in this state”.

Notes to Decisions

Quoted in

Crafts v. Morgan, 776 P.2d 1049 (Alaska 1989).

Cited in

Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

Sec. 25.24.220. Hearing.

  1. After a petition for dissolution is filed under the provisions of AS 25.24.210 , a hearing shall be scheduled in accordance with the Alaska Rules of Civil Procedure.
  2. Except as provided in (i) of this section, if the petition is filed by both spouses under AS 25.24.200(a) , both spouses shall attend the hearing personally and not through counsel. However, if the petition is not subject to (i) of this section, a spouse who complies with AS 25.24.200(c) is not required to attend the hearing. Either spouse may have counsel at the hearing.
  3. If the petition is filed by one spouse under AS 25.24.200(b) , that spouse shall submit proof of diligent inquiry as to the whereabouts of the absent spouse and provide notice by publication, posting, or other means as ordered by the court under the Alaska Rules of Civil Procedure.
  4. If the petition is filed by both spouses under AS 25.24.200(a) , the court shall examine the petitioners or petitioner present and consider whether
    1. the spouses fully understand the nature and consequences of their action;
    2. the written agreements between the spouses concerning child custody, child support, and visitation are just as between the spouses and in the best interests of the children of the marriage; in determining whether the parents’ agreement on visitation is in the best interests of the children under this paragraph, the court shall also consider whether the agreement should include visitation by grandparents and other persons;
    3. the written agreements between the spouses relating to the division of property, including retirement benefits, spousal maintenance, and the allocation of obligations are just; the spousal maintenance and division of property must fairly allocate the economic effect of dissolution and take into consideration the factors listed in AS 25.24.160(a)(2) and (4);
    4. the written agreements constitute the entire agreement between the parties;
    5. the conditions in AS 25.24.200(a) have been met; and
    6. the written agreements between the spouses concerning ownership or joint ownership of an animal take into consideration the well-being of the animal.
  5. If the petition is filed by one spouse under AS 25.24.200(b) , the court shall examine the petitioner and consider whether the petitioner fully understands the nature and consequences of the action and whether the conditions in AS 25.24.200(b) have been met.
  6. The court may appoint a guardian ad litem to represent the best interests of the child.  Appointment of a guardian ad litem or attorney for the child shall be made under the terms of AS 25.24.310 .
  7. The court may amend the written agreements between the spouses relating to child custody, child support, visitation, division of the property, including retirement benefits, spousal maintenance, ownership or joint ownership of an animal, taking into consideration the well-being of the animal, and allocation of obligations, but only if both petitioners concur in the amendment in writing or on the record.
  8. In its examination of a petitioner under (d) of this section, the court shall use a heightened level of scrutiny of agreements if
    1. one party is represented by counsel and the other is not;
    2. there is evidence that a party committed a crime involving domestic violence during the marriage or if any of the following has been issued or filed during the marriage by or regarding either spouse as defendant, participant, or respondent:
      1. a criminal charge of a crime involving domestic violence;
      2. a protective order under AS 18.66.100 - 18.66.180 ;
      3. injunctive relief under former AS 25.35.010 or 25.35.020; or
      4. a protective order issued in another jurisdiction and recognized in this state under AS 18.66.140 ;
    3. there is a minor child of the marriage; or
    4. there is a patently inequitable division of the marital estate.
  9. If the court finds that a higher level of scrutiny is required by (h) of this section, the court shall examine the written agreements between the spouses to determine that they are just, that they constitute the entire agreement between the parties, and that the agreements concerning child custody, child support, and visitation are in the best interest of the children of the marriage, if any. The court shall require the presence of both spouses at a hearing for this purpose unless the court finds on the record that it would constitute a significant hardship on one of the spouses to appear and that a just agreement has been reached. If one of the spouses cannot attend the hearing because it would constitute a significant hardship, the court may require that spouse to be available by telephone to answer questions, at that spouse’s expense.

History. (§ 1 ch 260 SLA 1976; am §§ 12—17 ch 130 SLA 1990; am § 3 ch 30 SLA 1995; am § 49 ch 64 SLA 1996; am §§ 23, 24 ch 60 SLA 2016; am § 22 ch 13 SLA 2017)

Revisor's notes. —

Formerly AS 09.55.233. Renumbered in 1983.

Effect of amendments. —

The 2016 amendment, effective January 17, 2017, added (d)(6) and made a related change; in (g), inserted “ownership or joint ownership of an animal, taking into consideration the well-being of the animal,” following “spousal maintenance,”.

The 2017 amendment, effective September 17, 2017, in (h)(2)(D), substituted “recognized in this state” for “filed with the court in this state”.

Notes to Decisions

Applicability. —

Superior court did not violate this section because this section governed proceedings during which a dissolution decree was issued and was irrelevant to a former wife’s enforcement motion; moreover, the superior court did not amend a property agreement, it simply interpreted it under contract principles. McCarter v. McCarter, 303 P.3d 509 (Alaska 2013).

Dissolution agreement. —

There was ample evidence to support the superior court’s findings, and the findings reinforced the conclusion that the parties intended to split the income derived from an ex-husband’s commercial fishing less costs for fuel and cannery dues. Contrary to the ex-husband’s argument that the superior court improperly modified the terms of the dissolution agreement, interpreting the dissolution provisions to clarify confusing language and resolve an ambiguity was not only appropriate, but required under Alaska case law. Mahan v. Mahan, 347 P.3d 91 (Alaska 2015).

Re-division of marital property after dissolution set aside. —

Where dissolution decree was properly set aside on grounds of fraud, it was error to re-divide marital property in response to a motion without giving husband advance notice or an opportunity for a hearing on the property division issues. Song v. Song, 972 P.2d 589 (Alaska 1999).

Quoted in

Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

Cited in

Murphy v. Murphy, 812 P.2d 960 (Alaska 1991); Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

Sec. 25.24.230. Judgment.

  1. If the petition is filed under AS 25.24.200(a) , and is not subject to AS 25.24.220(h) , the court may grant the spouses a final decree of dissolution and shall order other relief as provided in this section if the court, upon consideration of the information contained in the petition and the testimony of the spouse or spouses at the hearing, finds that
    1. the spouses understand fully the nature and consequences of their action;
    2. the written agreements between the spouses concerning spousal maintenance and tax consequences, if any, division of property, including retirement benefits, and allocation of obligations are fair and just and constitute the entire agreement between the parties;
    3. the spousal maintenance and division of property fairly allocate the economic effect of dissolution and take into consideration the factors listed in AS 25.24.160(a)(2) and (4);
    4. each spouse entered into the agreement voluntarily and free from the coercion of another person;
    5. the conditions in AS 25.24.200(a) have been met; and
    6. the written agreements between the spouses concerning ownership or joint ownership of an animal take into consideration the well-being of the animal.
  2. If the petition is filed under AS 25.24.200(a) and is subject to AS 25.24.220(h) , the court may grant the spouses a final decree of dissolution and shall order other relief as provided in this section if the court, upon consideration of the information contained in the petition and the testimony of the spouse or spouses at the hearing, finds that
    1. the spouses understand fully the nature and consequences of their action;
    2. the written agreements between the spouses concerning child custody, child support, and visitation are in the best interest of the children of the marriage, constitute the entire agreement of the parties on child custody, child support, and visitation and, as between the spouses, are just;
    3. the written agreements between the spouses concerning spousal maintenance and tax consequences, if any, division of property, including retirement benefits, and allocation of obligations are just and constitute the entire agreement between the parties;
    4. the spousal maintenance and division of property fairly allocate the economic effect of dissolution and take into consideration the factors listed in AS 25.24.160(a)(2) and (4);
    5. each spouse entered the agreement voluntarily and free from the coercion of another person; and
    6. the conditions in AS 25.24.200(a) have been met.
  3. If the petition is filed by one spouse under AS 25.24.200(b) , the court may grant the spouse a final decree of dissolution and change the petitioner’s name, if so requested, if the court, upon consideration of affidavits supplied by the spouse and the testimony of the spouse at the hearing, finds that
    1. the spouse present at the hearing understands fully the nature and consequences of the action;
    2. the conditions in AS 25.24.200(b) have been met; and
    3. the requirements of AS 25.24.165(b) have been satisfied, if a change of name is requested.
  4. The court shall dismiss a petition or continue action on a petition filed under AS 25.24.200 25.24.260 before findings are made if
    1. a representative of the unmarried children who are under the age of 19 objects to a term of an agreement between the spouses;
    2. either of the spouses withdraws from an agreement required under AS 25.24.200(a) ; or
    3. the petition alleges that the conditions in AS 25.24.200 (b) exist, but the whereabouts of the absent spouse becomes known to the other spouse or the court before findings are made.
  5. The court shall deny the relief sought in a petition filed under AS 25.24.200 25.24.260 if the court does not make the findings required under (a) — (c) of this section.
  6. If the petition is filed by both spouses under AS 25.24.200(a) , the court shall change either spouse’s name, if the spouse seeking a change of name to a name other than a prior name complies with AS 25.24.165(b) , and shall fully and specifically set out in the decree the written agreements of the spouses and shall order the performance of those written agreements. The court shall also state, in the decree, whether child support payments are to be made through the child support services agency. If the petition is filed by one spouse under AS 25.24.200(b) , the decree must state that it does not bar future action on the issues not resolved in the decree.
  7. Notwithstanding other provisions of AS 25.24.200 25.24.260 , the court may not award to one spouse real or personal property acquired by the other spouse before the date of the marriage, unless the spouses expressly agree otherwise or the court determines that the property should be made available, by sale or other conveyance, to ensure that the best interests of the children are provided for. If the court determines that the best interests of the children require an award of premarital property, but the spouses do not agree, the court shall dismiss or continue the action.
  8. If a judgment under this section distributes benefits to an alternate payee under AS 14.25, AS 21.51.120(a) , AS 21.54.020(c) , 21.54.050(c) , AS 22.25, AS 26.05.222 26.05.226 , or AS 39.35, the judgment must meet the requirements of a qualified domestic relations order under the definition of that phrase that is applicable to those provisions.
  9. For each judgment issued under this section, the court shall include in the records relating to the matter the social security numbers, if ascertainable, of the following persons:
    1. each party to the dissolution of marriage;
    2. each child whose rights are addressed in the judgment.

History. (§ 1 ch 260 SLA 1976; am § 28 ch 117 SLA 1986; am § 18 ch 130 SLA 1990; am § 6 ch 133 SLA 1990; am § 6 ch 117 SLA 1992; am § 46 ch 87 SLA 1997; am § 17 ch 132 SLA 1998; am § 4 ch 52 SLA 2001; am § 47 ch 80 SLA 2006; am § 25 ch 60 SLA 2016)

Revisor’s notes. —

Formerly AS 09.55.234. Renumbered in 1983.

In 2004, “child support enforcement agency” was changed to “child support services agency” in (f) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Cross references. —

For action for failure to permit visitation, see AS 25.20.140 ; for jurisdiction of court to make child custody determination, see AS 25.30.020(a); for effect of the 1990 amendments to (c) and (f) of this section on Alaska Rule of Civil Procedure 84(a), see § 20, ch. 130, SLA 1990 in the Temporary and Special Acts; for other provisions relating to court-ordered child support, see AS 25.24.910 and AS 25.27.060 25.27.070 ; for administratively-ordered child support, see AS 25.27; for court rule determining amount of child support, see Rule 90.3, Alaska Rules of Civil Procedure. For effect of amendments to this section made by ch. 87, SLA 1997 on court rules, see § 151, ch. 87, SLA 1997 in the 1997 Temporary and Special Acts. For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Effect of amendments. —

The 2016 amendment, effective January 17, 2017, added (a)(6), and made related changes.

Notes to Decisions

Jurisdiction to make child custody determination. —

The superior court has no jurisdiction to make the “child custody determination” that is a prerequisite to the entry of a decree of dissolution under subsection (a) unless one of the conditions listed in AS 25.30.020(a) exists. Layne v. Niles, 632 P.2d 234 (Alaska 1981).

A finding of “full understanding” by the parties is a statutory prerequisite to the superior court’s approval of a petition for dissolution. Crafts v. Morgan, 776 P.2d 1049 (Alaska 1989).

Applicability. —

In a case seeking enforcement of a property settlement agreement, the court did not have to make factual findings under this section because, while they were necessary to the issuance of a final decree, they were irrelevant to its enforcement in a subsequent proceedings. The former wife was not seeking relief in a petition filed under the dissolution statutes but was seeking enforcement of the final judgment. McCarter v. McCarter, 303 P.3d 509 (Alaska 2013).

Property division portion of a dissolution agreement was invalid where the evidence did not support the conclusion that the wife fully understood the consequences of signing the dissolution petition at the time she signed it, the evidence having indicated that neither party was aware of the wife’s right to share in properties listed in the husband’s name. Crafts v. Morgan, 776 P.2d 1049 (Alaska 1989).

Before a proposed property division can take effect, a court must find that both spouses understand fully the nature and consequences of their action, and that the proposed division constitutes the entire agreement between the parties. Musser v. Johnson, 914 P.2d 1241 (Alaska 1996).

Support of illegitimate children. —

Although a husband’s support obligation is regarded as extending only to children “of the marriage,” a mistake in the determination of paternity is not regarded as jurisdictional error and the superior court can enforce an agreement to support a child even though both parties to the dissolution action later admit that the child was born out of wedlock. J.C. v. M.L.C., 668 P.2d 1351 (Alaska 1983).

Jurisdiction to order support of stepchild. —

Superior court had jurisdiction to order child support for stepchild where former stepfather had agreed to pay support and subsequently sought modification, despite assertion that stepchild was neither born of the marriage nor adopted during the marriage. Dewey v. Dewey, 969 P.2d 1154 (Alaska 1999).

Quoted in

Notkin v. Notkin, 921 P.2d 1109 (Alaska 1996).

Sec. 25.24.232. Children as dependents for tax purposes.

  1. Notwithstanding other provisions of AS 25.24.200 25.24.260 , the court may not grant a final decree of dissolution that incorporates an agreement between the parties if the agreement unconditionally entitles a noncustodial parent to claim a child as a dependent under federal income tax laws. The court may incorporate into the decree of dissolution an agreement between the parties that entitles a noncustodial parent to claim a child as a dependent under federal tax laws for a tax year if the noncustodial parent satisfies the requirements of federal law and was not in arrears at the end of the tax year in an amount more than four times the monthly obligation under
    1. a support order applicable to the child in cases where a payment schedule has not been established for payment of continuing support and accumulated arrears under the support order; or
    2. a payment schedule if a payment schedule has been established for payment of continuing support and accumulated arrears under a support order applicable to the child.
  2. In this section, “noncustodial parent” means the parent who has actual physical custody of the child for less time than the other parent.

History. (§ 18 ch 132 SLA 1998)

Sec. 25.24.240. Effect and modification of decree.

  1. A decree of dissolution issued under AS 25.24.200 25.24.260 shall have the same force and effect as a decree granted under AS 25.24.010 25.24.180 .
  2. A decree of dissolution granted under AS 25.24.200 25.24.260 may be modified or enlarged as prescribed by AS 25.24.150 25.24.170 .

History. (§ 1 ch 260 SLA 1976)

Revisor’s notes. —

Formerly AS 09.55.235. Renumbered in 1983.

Notes to Decisions

Applicability. —

Where the former wife sought enforcement of a property agreement, the former husband was not statutorily entitled to modification where the property rights of the parties had been adjudicated and incorporated into a final judgment. In the absence of a motion seeking relief from judgment, the superior court’s task was to interpret and enforce the agreement by reference to principles of contract law. McCarter v. McCarter, 303 P.3d 509 (Alaska 2013).

Collateral references. —

Retirement of husband as change of circumstances warranting modification of divorce decree — Prospective retirement, 110 ALR5th 237.

Sec. 25.24.250. Forms.

  1. The Department of Law, in cooperation with the administrator of the Alaska Court System, shall prepare forms and instructions for use by persons wishing to obtain a dissolution of their marriage under AS 25.24.200 25.24.260 and wishing to utilize the services of the child support services agency. The forms shall conform to the requirements of the Alaska Rules of Civil Procedure, except that information appearing on the forms in legible handwriting shall be acceptable.
  2. Forms prepared under (a) of this section shall be made available to the public at each office of the division of social services of the Department of Health and Social Services, and every superior court, and wherever else considered necessary by the Department of Law.
  3. Forms or instructions prepared under (a) of this section must specify that the dissolution petition constitutes the entire agreement between the parties and must provide examples of kinds of property and obligations that are subject to distribution.

History. (§ 1 ch 260 SLA 1976; am § 19 ch 130 SLA 1990)

Revisor’s notes. —

Formerly AS 09.55.236. Renumbered in 1983.

In 2004, “child support enforcement agency” was changed to “child support services agency” in (a) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Sec. 25.24.260. Right to file action for divorce.

No spouse may be precluded from filing an action for divorce under AS 25.24.010 25.24.180 upon dismissal or denial of a petition filed under AS 25.24.200 25.24.260 .

History. (§ 1 ch 260 SLA 1976)

Revisor’s notes. —

Formerly AS 09.55.237. Renumbered in 1983.

Notes to Decisions

Quoted in

Layne v. Niles, 632 P.2d 234 (Alaska 1981).

Article 3. Representation of Minor.

Collateral references. —

Grandparents’ visitation rights, 90 ALR3d 222.

Visitation rights of persons other than natural parents or grandparents, 1 ALR4th 1270.

Necessity of requiring presence in court of both parties in proceedings relating to custody or visitation of children, 15 ALR4th 864.

Right of jailed or imprisoned parent to visit from minor child, 15 ALR4th 1234.

Withholding visitation rights for failure to make alimony or support payments, 65 ALR4th 1155.

Sec. 25.24.300. [Renumbered as AS 25.20.140.]

Sec. 25.24.310. Representation of minor.

  1. In an action involving a question of the custody, support, or visitation of a child, the court may, upon the motion of a party to the action or upon its own motion, appoint an attorney or the office of public advocacy to represent a minor with respect to the custody, support, and visitation of the minor or in any other legal proceeding involving the minor’s welfare or to represent an unmarried 18-year-old child with respect to post-majority support while the child is actively pursuing a high school diploma or an equivalent level of technical or vocational training and living as a dependent with a parent or guardian or a designee of the parent or guardian. When custody, support, or visitation is at issue in a divorce, it is the responsibility of the parties or their counsel to notify the court that such a matter is at issue. Upon notification, the court shall determine whether the minor or other child should have legal representation or other services and shall make a finding on the record before trial. If the parties are indigent or temporarily without funds, the court shall appoint the office of public advocacy. The court shall notify the office of public advocacy if the office is required to provide legal representation or other services. The court shall enter an order for costs, fees, and disbursements in favor of the state and may further order that other services be provided for the protection of the minor or other child.
  2. If custody, support, or visitation is at issue, the order for costs, fees, and disbursements shall be made against either or both parents, except that, if one of the parties responsible for the costs is indigent, the costs, fees, and disbursements for that party shall be borne by the state. If the parents are only temporarily without funds, the office of public advocacy shall provide legal representation or other services required by the court. The attorney general is responsible for enforcing collections owed the state. Repayment shall be made to the Department of Revenue under AS 37.10.050 for deposit in the general fund. The court shall, if possible, avoid assigning costs to only one party by ordering that costs of the minor’s legal representation or other services be paid from proceeds derived from a sale of joint, community, or individual property of the parties before a division of property is made.
  3. Instead of, or in addition to, appointment of an attorney under (a) of this section, the court may, upon the motion of either party or upon its own motion, appoint an attorney or other person or the office of public advocacy to provide guardian ad litem services to a child in any legal proceedings involving the child’s welfare. The court shall require a guardian ad litem when, in the opinion of the court, representation of the child’s best interests, to be distinguished from preferences, would serve the welfare of the child. The court in its order appointing a guardian ad litem shall limit the duration of the appointment of the guardian ad litem to the pendency of the legal proceedings affecting the child’s interests, and shall outline the guardian ad litem’s responsibilities and limit the authority to those matters related to the guardian’s effective representation of the child’s best interests in the pending legal proceeding. The court shall make every reasonable effort to appoint a guardian ad litem from among persons in the community where the child’s parents or the person having legal custody or guardianship of the child’s person reside. When custody, support, or visitation is at issue in a divorce, it is the responsibility of the parties or their counsel to notify the court that such a matter is at issue. Upon notification, the court shall determine if a child’s best interests need representation or if a minor or other child needs other services and shall make a finding on the record before trial. If one or both of the parties is indigent or temporarily without funds the court shall appoint the office of public advocacy. The court shall notify the office of public advocacy if the office is required to provide guardian ad litem services. The court shall enter an order for costs, fees, and disbursements in favor of the state and may further order that other services be provided for the protection of a minor or other child.

History. (§ 2 ch 167 SLA 1975; am §§ 2, 3 ch 63 SLA 1977; am § 14 ch 55 SLA 1984; am §§ 7, 8 ch 117 SLA 1992; am § 8 ch 42 SLA 1998)

Revisor’s notes. —

Enacted as AS 09.65.130 in 1975; renumbered in 1983.

Notes to Decisions

Section 310 of Uniform Marriage and Divorce Act is similar to this section. —

Section 310 of the Uniform Marriage and Divorce Act of the National Conference of Commissioners on Uniform State Laws, which provides for the appointment of an attorney to represent the interests of a minor or dependent child with respect to his support, custody and visitation, is similar to this section. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

This section gives the trial court discretion to appoint an attorney or guardian ad litem for a child in a proceeding “without respect to his custody, support, and visitation, or in any other legal proceeding involving his welfare.” Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

The supreme court cannot lay down a definite rule for guiding the trial courts in their decision whether to appoint guardians ad litem, since no two child custody cases are alike. Of necessity, the trial court has a considerable amount of discretion in making this decision. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

The fact that one or all of the custody claimants favor or oppose the appointment of a guardian ad litem is not necessarily conclusive. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

Appointment is not compelled where unnecessary. —

In custody cases in which a guardian is not needed, neither this section, the court rules, nor supreme court decisions compel the court to waste its time and money, as well as that of the parties and counsel, in employing one. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Discretion of court in appointing guardian ad litem. —

In many custody cases appointment of a guardian ad litem is not needed, and in those cases it is not compelled by statute, the court rules, or the supreme court’s decisions. No two custody cases are alike. Of necessity, the trial court has a considerable amount of discretion in making this decision. Carter v. Brodrick, 816 P.2d 202 (Alaska 1991).

When guardian ad litem to be appointed. —

In custody proceedings a guardian ad litem should be appointed when appointment would substantially enhance the likelihood that the individual needs and interests of the children would be adequately represented. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Basis for decision to appoint guardian. —

The decision whether to appoint a guardian ad litem would appear to depend in large measure on the age of the children and the nature of the claim being advanced by the parent or parents. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976); Veazey v. Veazey, 560 P.2d 382 (Alaska 1977); Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

Failure to make findings as to need for guardian. —

Grant of a motion made by the children’s guardian ad litem for fees and costs of defending the superior court’s child custody determination was error where the superior court failed to follow subsection (c), in that it failed to make a finding on the record that the minor children’s best interest and welfare required the services of a guardian in connection with the appeal. Furthermore, the guardian’s responsibilities and authority in effectively representing the children’s best interests in the appeal were never outlined by the superior court. Rich v. Berry, 857 P.2d 341 (Alaska 1993).

Superior court erred in denying mother’s motion for the appointment of a guardian ad litem in a child custody dispute because the superior court failed to make any findings; on remand, superior court was ordered to make findings explaining whether the appointment of a guardian ad litem was necessary. Iverson v. Griffith, 180 P.3d 943 (Alaska 2008).

Failure to appoint guardian not abuse of discretion. —

Where neither party could suggest any specific benefit a guardian might bring to the custody modification proceedings, and appointment of a guardian ad litem would have necessitated postponement of the hearing, the superior court did not abuse its discretion in failing to appoint a guardian ad litem for the two minor children. Lacy v. Lacy, 553 P.2d 928 (Alaska 1976).

Denial of motion for appointment of guardian ad litem was not abuse of discretion. Hinchey v. Hinchey, 625 P.2d 297 (Alaska 1981), overruled, Dowling v. Dowling, 679 P.2d 480 (Alaska 1984).

No plain error in failure to appoint guardian ad litem. —

It was not plain error for a trial court to neither consider the appointment of a guardian ad litem (GAL) in a child custody matter, nor appoint one on its own motion when neither parent requested the appointment of a GAL because there was no indication from the record that the case was unusually complex, that the appointment of a GAL was necessary to develop the evidence, or that the parents would be unable to adequately present or protect the children's best interests. Brett M. v. Amanda M., 445 P.3d 1005 (Alaska 2019).

Guardian should be advocate of child. —

See Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

A guardian ad litem appointed pursuant to this section is in every sense the child’s attorney, with not only the power but the responsibility to represent his client zealously and to the best of his ability. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

For discussion of powers and duties of guardian, see Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

A guardian is entitled to file such procedural motions as a motion for change of judge on the same basis as a party to the action. Veazey v. Veazey, 560 P.2d 382 (Alaska 1977).

Both parents generally taxed with costs. —

Subsection (b) of this section generally precludes the superior court from taxing only one parent with the cost of a guardian ad litem when both parents can afford the cost. Siggelkow v. Siggelkow, 643 P.2d 985 (Alaska 1982).

Trial judge did not abuse his discretion in requiring the wife to pay one-third of a guardian ad litem’s fees where she received real property valued at approximately $250,000 and $48,400 in alimony, payable over ten years, and could reasonably afford to pay $1375 of the fee. H.P.A. v. S.C.A., 704 P.2d 205 (Alaska 1985).

Payment of costs where parent is indigent. —

For law prior to the 1984 amendment, which provided for appointment of office of public advocacy if parties are indigent or temporarily without funds, see Fernandes v. Fernandes, 584 P.2d 551 (Alaska 1978).

Requesting guardian ad litem’s presence until his testimony not considered in assessing costs. —

The fact that a party requested that the guardian ad litem remain present in court until the time when the guardian ad litem’s testimony would be required is not a proper consideration for assessing costs under this section. Siggelkow v. Siggelkow, 643 P.2d 985 (Alaska 1982).

Services for protection of child typically performed by private agency. —

By providing that the costs of services to be provided for the protection of the child will be assessed against the parties, and that the court may advance such costs to parties temporarily without funds, subsection (b) of this section suggests that it is contemplated that such services typically are to be performed by a private agency. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Performance of “other services” cannot be compelled. —

There is no implied grant of power in subsection (a) or (c) of this section to compel the performance of “other services” by a state agency not wishing to perform them. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

The vague directive of this section that in a private custody dispute the court may order that “services be provided for the protection of the child” does not empower a court to command the aid of the department of health and social services in a private custody dispute. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Distinctions between AS 47.10.020 and this section. —

Where the father, who lived in Arkansas, was engaged in a custody dispute with the children’s mother, who lived in Alaska, the trial court erred in ordering the Department of Health and Social Services to conduct a home study. Father’s argument that, because AS 47.10.020 authorizes the court to order a home study, such a construction should be placed on former AS 09.65.130 (see now this section) was without merit; AS 47.10.020 (a) did not support the inference that former AS 09.65.130 empowered the court to command the aid of the Department in a private custody dispute. Granato v. Occhipinti, 602 P.2d 442 (Alaska 1979).

Trial court did not abuse its discretion in allocating a portion of the guardian ad litem’s fees to the mother, as the order was based on the parties’ relative incomes. Riggs v. Coonradt, 335 P.3d 1103 (Alaska 2014).

Applied in

Jenkins v. Handel, 10 P.3d 586 (Alaska 2000).

Quoted in

Chavre v. Chavre, 598 P.2d 81 (Alaska 1979); Thomas v. Thomas, 171 P.3d 98 (Alaska 2007).

Stated in

Deivert v. Oseira, 628 P.2d 575 (Alaska 1981); J.M.R. v. S.T.R., 15 P.3d 253 (Alaska 2001).

Cited in

Bonjour v. Bonjour, 592 P.2d 1233 (Alaska 1979); Gerlach v. State, 699 P.2d 358 (Alaska Ct. App. 1985); Karen L. v. State, Dep't of Health & Social Servs., 953 P.2d 871 (Alaska 1998); Vinzant v. Elam, 977 P.2d 84 (Alaska 1999); Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017).

Article 4. Legal Separation.

Editor’s notes. —

Section 4(a), ch. 80, SLA 2002, provides that the provisions of AS 25.24.400 25.24.460 apply “to complaints for legal separation, divorce, and annulment that are filed on or after September 18, 2002, and orders of legal separation issued on or after September 18, 2002.” Section 4(b), ch. 80, SLA 2002, provides that an order of legal separation issued by a court in the state before September 18, 2002, “(1) is not subject to or rendered void by [AS 25.24.400 25.24.460 ], and (2) remains enforceable between the parties regardless of whether the issuing court was authorized to issue the order.”

Sec. 25.24.400. Complaint for legal separation.

A husband or a wife may separately or jointly file a complaint in the superior court for a legal separation. A legal separation may be granted no more than once to the same married couple.

History. (§ 1 ch 80 SLA 2002)

Sec. 25.24.410. Grounds for a legal separation.

A legal separation may be granted by the court based on a finding that

  1. an incompatibility of temperament exists between the parties; and
  2. the continuation of the parties’ status as married persons preserves or protects significant legal, financial, social, or religious interests.

History. (§ 1 ch 80 SLA 2002)

Sec. 25.24.420. Residency required.

One of the parties to a complaint for legal separation must be a resident of the state at the time the action is commenced.

History. (§ 1 ch 80 SLA 2002)

Sec. 25.24.430. Consolidation of actions.

If, at any time, a party to an action for legal separation files an action for divorce or annulment, the court shall consolidate the new action with the action for legal separation.

History. (§ 1 ch 80 SLA 2002)

Sec. 25.24.440. Applicability of other statutes.

The following statutes relating to divorce actions shall be applied similarly to an action for legal separation: AS 25.24.060 , 25.24.140 , 25.24.150 , 25.24.152 , 25.24.160 , and 25.24.170 .

History. (§ 1 ch 80 SLA 2002)

Sec. 25.24.450. Decree.

  1. If a court finds that the grounds specified under AS 25.24.410 exist, the court may enter a decree of legal separation.
  2. Unless otherwise provided in the decree, provisions for child custody and visitation, child support, and spousal support included in a decree of legal separation are final orders subject to modification only as provided in AS 25.20.110 and AS 25.24.170 .
  3. If the decree of legal separation includes provisions for division of property and debts of the marriage, the decree must state whether the division is an interim or final order. To the extent the division is not a final order, the court shall determine the parties’ respective rights to and responsibilities for property and obligations not finally distributed and as to any property or debts accrued by either party while the order is in effect.

History. (§ 1 ch 80 SLA 2002)

Sec. 25.24.460. Effect of separation.

A decree of legal separation does not restore the parties to the status of unmarried persons. A decree of legal separation modifies the parties’ rights and responsibilities as married persons only to the extent specified in the decree of separation.

History. (§ 1 ch 80 SLA 2002)

Article 5. General Provisions.

Sec. 25.24.900. Residency of military personnel.

A person serving in a military branch of the United States government who has been continuously stationed at a military base or installation in the state for at least 30 days is considered a resident of the state for the purposes of this chapter.

History. (§ 12.09 ch 101 SLA 1962; am § 4 ch 130 SLA 1990)

Revisor’s notes. —

Formerly AS 09.55.160. Renumbered as AS 25.24.100 in 1983. Renumbered again in 1991.

Notes to Decisions

Purpose of section. —

See Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

This section establishes a reasonable basis for the exercise of jurisdiction over divorce involving military personnel. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

Prior law. —

Prior to the enactment of this section it had been held by the district court for the territory of Alaska that jurisdiction to grant a divorce was lacking in the case of a person in the military service, stationed in Alaska under orders and living on a military post or reservation. Lauterbach v. Lauterbach, 392 P.2d 24 (Alaska 1964).

Collateral references. —

Residence or domicile, for purposes of divorce action, of one in armed forces, 21 ALR2d 1163.

Validity and construction of statutory provision relating to jurisdiction of court for purpose of divorce for servicemen, 73 ALR3d 431.

Sec. 25.24.910. Payment of support to 18-year-olds.

When a court order or judgment provides for child support to be paid for the care of an unmarried 18-year-old child who is actively pursuing a high school diploma or an equivalent level of technical or vocational training while living as a dependent with a parent, guardian, or designee of the parent or guardian, the order or judgment may provide for the support to be paid directly to the child upon terms and conditions considered appropriate by the court.

History. (§ 9 ch 117 SLA 1992)

Sec. 25.24.920. Provision of information to child support services agency.

For purposes of 42 U.S.C. 666 and AS 25.27.193 , when a court order or judgment provides for child support to be paid, the clerk of the court shall provide a copy of the order or judgment to the child support services agency created in AS 25.27.010 .

History. (§ 47 ch 87 SLA 1997)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Sec. 25.24.990. Definition.

In this chapter, “animal” means a vertebrate living creature not a human being.

History. (§ 26 ch 60 SLA 2016)

Effective dates. —

Section 26, ch. 60, SLA 2016, which enacted this section, took effect on January 1, 2017.

Chapter 25. Uniform Interstate Family Support Act.

Cross references. —

For enforcement of support obligations determined in other states, see AS 25.27.022 .

For provision providing legislative findings and intent, see sec. 1, ch. 32, SLA 2015.

Editor’s notes. —

Under sec. 103, ch. 32, SLA 2015, the 2015 amendments to this chapter made by ch. 32, SLA 2015 apply to proceedings begun on or after July 1, 2015, “to establish a support order or determine parentage of a child or to register, recognize, enforce, or modify a prior support order, determination, or agreement, whenever issued or entered.”

Legislative history reports. —

For governor’s transmittal letter for ch. 57, SLA 1995 (CSSB 115(FIN)am), which enacted the Uniform Interstate Family Support Act, see 1995 Senate Journal 517. For legislative letter of intent on the same legislation, see 1995 Senate Journal 1405 and 1494 and 1995 House Journal 1996.

For governor’s transmittal letter for ch. 32, SLA 2015 (CSHB 106(STA) am), which amended the Uniform Interstate Family Support Act, see 2015 House Journal 192 — 194.

Notes to Decisions

Public advocacy. —

Proceedings under the Uniform Reciprocal Enforcement of Support Act were not specifically among the classes of cases mentioned in AS 44.21.410 , concerning the powers and duties of the office of public advocacy. State v. Superior Court, 718 P.2d 466 (Alaska 1986).

Collateral references. —

23 Am. Jur. 2d, Desertion and Nonsupport, § 74

59 Am. Jur. 2d, Parent and Child, § 44

73 Am. Jur. 2d, Support of Persons, § 25 et seq.

Construction and application of state statutes providing for reciprocal enforcement of duty to support dependents, 42 ALR2d 768.

Determination of paternity of child as within scope of proceeding under Uniform Reciprocal Enforcement of Support Act, 81 ALR3d 1175.

Secs. 25.25.010 — 25.25.100. [Repealed, § 21 ch 57 SLA 1995.]

Article 1. General Provisions.

Sec. 25.25.101. Definitions.

In this chapter,

  1. “child” means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual’s parent or who is or is alleged to be the beneficiary of a support order directed to the parent;
  2. “child support order” means a support order for a child, including a child who has attained the age of majority under the law of the issuing state or foreign country;
  3. “convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007;
  4. “duty of support” means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support;
  5. “foreign country” means a country, including a political subdivision of a country, other than the United States, that authorizes the issuance of support orders and
    1. that has been declared under the law of the United States to be a foreign reciprocating country;
    2. that has established a reciprocal arrangement for child support with this state as provided in AS 25.25.308(b) ;
    3. that has enacted a law or established procedures for the issuance and enforcement of support orders that are substantially similar to the procedures under this chapter; or
    4. in which the convention is in force with respect to the United States;
  6. “foreign support order” means a support order of a foreign tribunal;
  7. “foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country that is authorized to establish, enforce, or modify support orders or determine parentage of a child; “foreign tribunal” includes a competent authority under the convention;
  8. “home state” means the state or the foreign country in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the time of filing of a complaint or comparable pleading for support and, if a child is less than six months old, the state or the foreign country in which the child lived from birth with a parent or person acting as a parent; a period of temporary absence of a parent or person acting as a parent is counted as part of the six-month or other period;
  9. “income” includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this state;
  10. “income withholding order” means an order or other legal process directed to an obligor, an obligor’s employer, an obligor’s future employer, or another person, political subdivision, or department of the state, under AS 25.27 to withhold support from the income of the obligor under AS 25.27;
  11. “initiating tribunal” means the tribunal of a state or foreign country from which a complaint or comparable pleading is forwarded or in which a complaint or comparable pleading is filed for forwarding to another state or foreign country;
  12. “issuing foreign country” means the foreign country in which a tribunal issues a support order or a judgment determining parentage of a child;
  13. “issuing state” means the state in which a tribunal issues a support order or a judgment determining parentage of a child;
  14. “issuing tribunal” means the tribunal of a state or foreign country that issues a support order or a judgment determining parentage of a child;
  15. “law” includes decisional and statutory law and rules and regulations having the force of law;
  16. “obligee” means
    1. an individual to whom a duty of support is or is alleged to be owed or in whose favor a support order or a judgment determining parentage of a child has been issued;
    2. a foreign country, state, or political subdivision of a state to which the rights under a duty of support or support order have been assigned or that has independent claims based on financial assistance provided to an individual obligee in place of child support;
    3. an individual seeking a judgment determining parentage of the individual’s child; or
    4. a person that is a creditor in a proceeding under AS 25.25.702 25.25.714 ;
  17. “obligor” means an individual or the estate of a decedent that
    1. owes or is alleged to owe a duty of support;
    2. is alleged but has not been adjudicated to be a parent of a child;
    3. is liable under a support order; or
    4. is a debtor in a proceeding under AS 25.25.702 25.25.714 ;
  18. “outside this state” means a location in another state or a country other than the United States, whether or not the country is a foreign country;
  19. “person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
  20. “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
  21. “register” means to file in a tribunal of this state a support order or judgment issued in another state or a foreign country determining parentage of a child;
  22. “registering tribunal” means the tribunal in which a support order or judgment determining parentage of a child is registered;
  23. “responding state” means a state in which a complaint or comparable pleading for support or to determine parentage of a child is filed or to which a complaint or comparable pleading is forwarded for filing from another state or foreign country;
  24. “responding tribunal” means the authorized tribunal in a responding state or foreign country;
  25. “spousal support order” means a support order for a spouse or former spouse of the obligor;
  26. “state” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; the term “state” includes an Indian nation or tribe;
  27. “support enforcement agency” means a public official, governmental entity, or private agency authorized to
    1. seek enforcement of support orders or laws relating to the duty of support;
    2. seek establishment or modification of child support orders;
    3. request determination of parentage of a child;
    4. attempt to locate obligors or their assets; or
    5. request determination of the controlling child support order;
  28. “support order” means a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued in a state or foreign country for the benefit of a child, a spouse, or a former spouse, that provides for monetary support, health care, arrearages, retroactive support, or reimbursement for financial assistance provided to an individual obligee in place of child support; “support order” may include related costs and fees, interest, income withholding, automatic adjustment, reasonable attorney fees, and other relief;
  29. “tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage of a child.

History. (§ 4 ch 57 SLA 1995; am §§ 48 — 50 ch 87 SLA 1997; am § 3 ch 45 SLA 2009; am §§ 2— 17, 102 ch 32 SLA 2015)

Revisor’s notes. —

Paragraphs (3), (5) - (7), (12), and (18) - (20) were enacted as paragraphs (23) - (30); renumbered in 2015 to maintain alphabetical order, at which time other paragraphs were also renumbered.

Cross references. —

For statement of legislative intent applicable to the 2009 amendment of paragraph (19) of this section, see § 1, ch. 45, SLA 2009, in the 2009 Temporary and Special Acts.

Effect of amendments. —

The 2009 amendment, effective July 1, 2009, in (19), added “, the United States Virgin Islands” following “Commonwealth of Puerto Rico”, and “an Indian tribe and” following “the term ‘state’ includes”.

The 2015 amendment, effective July 1, 2015, in (2), inserted “or foreign country” following “issuing state”; in (4) [now (8)], twice inserted “or the foreign country” following “the state”; repealed former (7); rewrote (8) [now (11)], which read, “ ‘initiating tribunal’ means the authorized tribunal in an initiating state”; in (9) [now (13)], deleted “renders” following “a support order or”, added “of a child” at the end; in (10) [now (14)], inserted “of a state or foreign country” following “the tribunal”, deleted “renders” following “a support order or”, and added “of a child” at the end; in (12) [now 15)], in (12)(A) [now (15(A)], deleted “has been issued” following “a support order”, and substituted “or a judgment determining parentage of a child has been issued” for “or a judgment determining parentage has been rendered”, in (12)(B) [now (15)(B)], inserted “foreign country” at the beginning, “of a state” following “political subdivision”, and added “in place of child support” at the end, added (12)(D) [now (15)(D)]; added (13)(D) [now (17)(D)]; rewrote (14) [now (21)], which read, “ ‘register’ means to file a support order or judgment with a registering tribunal”; in (15) [now (22)], added “of a child” near the end; rewrote (16) [now (23)], which read, “ ‘responding state’ means a state in which a proceeding is filed or to which a proceeding is forwarded for filing from an initiating state under this chapter or a law or procedure substantially similar to this chapter, or under a law or procedure substantially similar to the uniform reciprocal enforcement of support act or the revised uniform reciprocal enforcement of support act”; in (17) [now (24)], added “or foreign country” at the end; in (19) [now (26)], substituted “an Indian nation or tribe” for “an Indian tribe”, and deleted “and a foreign jurisdiction that has enacted a law or established procedures for issuance and enforcement of support orders that are substantially similar to the procedures under this chapter or under the uniform reciprocal enforcement of support act or the revised uniform reciprocal enforcement of support act” at the end; in the introductory language of (20) [now (27)], inserted “, governmental entity” following “a public official”, rewrote (20)(D) [now (27)(D)], which read, “the location of obligors or their assets”, added (20)(E) [now (27)(E)]; rewrote (21) [now (28)], which read, “ ‘support order’ means a judgment, decree, or order, whether temporary, final, or subject to modification, for the benefit of a child, a spouse, or a former spouse, that provides for monetary support, health care, arrearages, or reimbursement, and may include related costs and fees, interest, income withholding, attorney fees, and other relief”; in (22) [now (29)], added “of a child” at the end; added (23) [now (3)], (24) [now (5)], (25) [now (6)], (26) [now (7)], (27) [now (12)], (28) [now (18)], (29) [now (19)], and (30) [now (20)]; made related and stylistic changes throughout.

Notes to Decisions

Application for child support by custodian. —

Where stepfather became the de facto guardian of the child when the mother left the child in the stepfather’s care after divorce, the stepfather had standing to enforce the father’s support obligation. Saask v. Yandell, 702 P.2d 1327 (Alaska 1985) (decided under former law).

Tribal court held to be an ‘‘authorized tribunal’’ for child support disputes. —

Tribal courts have inherent subject matter jurisdiction to decide the child support obligations owed to children who are tribal members or are eligible for membership and thus, they are “authorized tribunals” for purposes of the Uniform Interstate Family Support Act (UIFSA), 42 U.S.C.S. § 6. State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Arrearages. —

Under Alaska law, arrearages were recoverable in actions under the Uniform Reciprocal Enforcement of Support Act. Bailey v. Haas, 655 P.2d 764 (Alaska 1982) (decided under former law).

There was no requirement that a request for arrearages had to be reduced to judgment by the petitioning state. Bailey v. Haas, 655 P.2d 764 (Alaska 1982) (decided under former law).

Quoted in

Berry v. Coulman, 440 P.3d 264 (Alaska 2019).

Cited in

McCaffery v. Green, 931 P.2d 407 (Alaska 1997); Fowler v. State, 168 P.3d 870 (Alaska 2007); Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013).

Collateral references. —

Construction and application of Uniform Interstate Family Support Act, 90 A.L.R.5th 1.

Entitlement to attorney’s fees under Uniform Parentage Act of 1973, 72 ALR6th 413.

Sec. 25.25.102. State tribunal and support enforcement.

  1. The superior court and the child support services agency are the tribunals of this state.
  2. The child support services agency created in AS 25.27.010 is the support enforcement agency of this state.

History. (§ 4 ch 57 SLA 1995; am § 18 ch 32 SLA 2015)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added (b).

Notes to Decisions

Collateral estoppel. —

Father affirmatively and explicitly waived his argument that the superior court did not give proper legal effect to the administrative decision concerning child support when he appeared and asked the superior court to proceed to decide support obligations for all years. McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Quoted in

Berry v. Coulman, 440 P.3d 264 (Alaska 2019).

Sec. 25.25.103. Remedies cumulative.

  1. Remedies provided by this chapter are cumulative and do not affect the availability of remedies under other law or the recognition of a support order on the basis of comity.
  2. This chapter does not
    1. provide the exclusive method of establishing or enforcing a support order under the law of this state; or
    2. grant a tribunal of this state jurisdiction to render judgment or issue an order relating to child custody or visitation in a proceeding under this chapter.

History. (§ 4 ch 57 SLA 1995; am §§ 19, 20 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added “or the recognition of a support order on the basis of comity” at the end of (a), added (b).

Sec. 25.25.104. Application of this chapter to resident of foreign country and foreign support proceeding.

  1. A tribunal of this state shall apply AS 25.25.101 25.25.616 and, as applicable, AS 25.25.702 25.25.714 , to a support proceeding involving
    1. a foreign support order;
    2. a foreign tribunal; or
    3. an obligee, obligor, or child residing in a foreign country.
  2. A tribunal of this state that is requested to recognize and enforce a support order on the basis of comity may apply the procedural and substantive provisions of AS 25.25.101 25.25.616 .
  3. AS 25.25.702 25.25.714 apply only to a support proceeding under the convention. In such a proceeding, if a provision of AS 25.25.702 25.25.714 is inconsistent with AS 25.25.101 25.25.616 , AS 25.25.702 — 25.25.714 controls.

History. (§ 21 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Secs. 25.25.110 — 25.25.200. [Repealed, § 21 ch 57 SLA 1995.]

Article 2. Jurisdiction.

Sec. 25.25.201. Bases for jurisdiction over nonresident.

  1. In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual’s guardian or conservator if
    1. the individual is personally served with a citation, summons, or notice within this state;
    2. the individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
    3. the individual resided with the child in this state;
    4. the individual resided in this state and provided prenatal expenses or support for the child;
    5. the child resides in this state as a result of the acts or directives of the individual;
    6. the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
    7. the individual acknowledged parentage of a child in a writing deposited with the Bureau of Vital Statistics under AS 25.20.050 ; or
    8. there is another basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
  2. The bases of personal jurisdiction set out in (a) of this section or in any other law of this state may not be used to acquire personal jurisdiction for a tribunal of this state to modify a child support order of another state unless the requirements of AS 25.25.611 are met or, in the case of a foreign support order, unless the requirements of AS 25.25.615 are met.

History. (§ 5 ch 57 SLA 1995; am §§ 22, 23 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), substituted “establish or enforce a support order or to determine parentage of a child” for “establish, enforce, or modify a support order or to determine parentage” in the introductory language, added “in a record” in (a)(2), added “of a child” in (a)(7); added (b).

Notes to Decisions

Jurisdiction found. —

Contrary to the husband’s contention in his challenge to the child support modification order, the trial court had personal jurisdiction over the husband pursuant to AS 25.25.201 after he moved to Missouri as the husband participated in support proceedings in Alaska for several years, he had lived in Alaska with one of the children, agreed to pay for the wife’s expenses relating to pregnancy and birth of the parties’ other child, and presumably conceived the children in Alaska. Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Sec. 25.25.202. Duration of personal jurisdiction.

Personal jurisdiction acquired by a tribunal of this state in a proceeding under this chapter or other law of this state relating to a support order continues as long as a tribunal of this state has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by AS 25.25.205 , 25.25.206 , and 25.25.281 .

History. (§ 24 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, repealed and reenacted the section.

Sec. 25.25.203. Initiating and responding tribunal of this state.

Under this chapter, a tribunal of this state may serve as an initiating tribunal to forward proceedings to a tribunal of another state and as a responding tribunal for proceedings initiated in another state or a foreign country.

History. (§ 5 ch 57 SLA 1995; am § 25 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added “a tribunal of” and “or a foreign country.”

Sec. 25.25.204. Simultaneous proceedings.

  1. A tribunal of this state may exercise jurisdiction to establish a support order if the complaint or comparable pleading is filed after a complaint or comparable pleading is filed in another state or a foreign country only if
    1. the complaint or comparable pleading in this state is filed before the expiration of the time allowed in the other state or the foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other state or the foreign country;
    2. the contesting party timely challenges the exercise of jurisdiction in the other state or the foreign country; and
    3. if relevant, this state is the home state of the child.
  2. A tribunal of this state may not exercise jurisdiction to establish a support order if the complaint or comparable pleading is filed before a complaint or comparable pleading is filed in another state or a foreign country if
    1. the complaint or comparable pleading in the other state or the foreign country is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;
    2. the contesting party timely challenges the exercise of jurisdiction in this state; and
    3. if relevant, the other state or the foreign country is the home state of the child.

History. (§ 5 ch 57 SLA 1995; am § 26 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, deleted “in another state” at the end of the section heading, added “or a foreign country” in the introductory language of (a) and (b), added “or the foreign country” twice in (a)(1), in (a)(2), (b)(1) and (b)(3).

Sec. 25.25.205. Continuing, exclusive jurisdiction to modify child support order.

  1. A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its child support order if the order is the controlling order and,
    1. at the time of the filing of a request for modification, this state is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
    2. even if this state is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.
  2. A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if
    1. all of the parties who are individuals file consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
    2. the tribunal’s order is not the controlling order.
  3. If a tribunal of another state has issued a child support order under this chapter or a law substantially similar to this chapter that modifies a child support order of a tribunal of this state, a tribunal of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state.
  4. A tribunal of this state that lacks continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.
  5. A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.
  6. [Repealed, § 32 ch 102 SLA 2015.]

History. (§ 5 ch 57 SLA 1995; am §§ 27 — 30, 102 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote (a) and (b), which read, “(a) A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a child support order (1) as long as this state remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or (2) until each individual party has filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction. (b) A tribunal of this state issuing a child support order consistent with the law of this state may not exercise its continuing jurisdiction to modify the order if the order has been modified by a tribunal of another state under a law substantially similar to this chapter.”, repealed and reenacted (c) and (d), repealed (f).

Notes to Decisions

Order not entitled to full faith and credit. —

A support order entered by a responding court pursuant to a Uniform Reciprocal Enforcement of Support Act petition, which did not specifically modify an order entered in the initiating state, had no effect on the validity of the earlier order and was not entitled to full faith and credit by courts of the initiating state. Department of Revenue, Child Support Enforcement Div. ex rel. Valdez v. Valdez, 941 P.2d 144 (Alaska 1997) (decided under former law).

Order properly entered on waiver by parties of administrative decision. —

Father affirmatively and explicitly waived his argument that the superior court did not give proper legal effect to the administrative decision concerning child support when he appeared and asked the superior court to proceed to decide support obligations for all years. McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Interest on support arrearage. —

Under the Uniform Interstate Family Support Act, where the child resided in Alaska, the issuing state, Washington could not modify the original support order, and the Child Support Enforcement Division (now the Child Support Services Agency) was entitled to collect interest on father’s support arrearage. Department of Revenue ex rel. Wallace v. Delaney, 962 P.2d 187 (Alaska 1998).

Jurisdiction found. —

Contrary to the husband’s contention in his challenge to the child support modification order, the trial court had continuing, exclusive jurisdiction over the support order pursuant to AS 25.25.205(a)(1) -(2) after he moved to Missouri as the wife and the children still resided in Alaska and the parties filed no written consent for Missouri to modify the order. Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Superior court improperly released jurisdiction over the child support order because even though the parties no longer lived in Alaska, it was the only tribunal to issue a child support order, and thus, the court had not lost jurisdiction under former AS 25.25.205 and retained jurisdiction under the statute's current version. Swaney v. Granger, — P.3d — (Alaska Feb. 15, 2017) (memorandum decision).

Superior court properly modified a father's child support because "residency" was statutorily defined by focusing on a person's intent, the father affirmatively claimed Alaska residency at trial and intended to return and make Alaska his home, the "tribunal" referred to by statute included both the superior court and the Child Support Services Division, the superior court had evidence before it establishing three relevant time periods based on the father's actual pay that jointly showed his income had changed by more than 15% during the time periods at issue, which both met the threshold for a material change in circumstances and was an appropriate method for calculating support covering past period. Berry v. Coulman, 440 P.3d 264 (Alaska 2019).

Sec. 25.25.206. Continuing jurisdiction to enforce child support order.

  1. A tribunal of this state that has issued a child support order consistent with the laws of this state may serve as an initiating tribunal to request a tribunal of another state to enforce
    1. the order if the order is the controlling order and has not been modified by a tribunal of another state that assumed jurisdiction under this chapter; or
    2. a money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another state is the controlling order.
  2. A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.
  3. [Repealed, § 32 ch 102 SLA 2015.]

History. (§ 5 ch 57 SLA 1995; am §§ 31, 32, 102 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote (a) and (b), which read, “(a) A tribunal of this state may serve as an initiating tribunal to request a tribunal of another state to enforce or modify a support order issued in that state. (b) A tribunal of this state having continuing, exclusive jurisdiction over a support order may act as a responding tribunal to enforce or modify the order. If a party subject to the continuing, exclusive jurisdiction of the tribunal no longer resides in the issuing state, in subsequent proceedings the tribunal may apply AS 25.25.316 to receive evidence from another state and AS 25.25.318 to obtain discovery through a tribunal of another state.”, repealed (c).

Sec. 25.25.207. Determination of controlling child support order.

  1. If a proceeding is brought under this chapter and only one tribunal has issued a child support order, the order of that tribunal is controlling and shall be recognized.
  2. If a proceeding is brought under this chapter and two or more child support orders have been issued by tribunals of this state, another state, or a foreign country with regard to the same obligor and same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and shall determine, by order, which order controls and must be recognized:
    1. if only one of the tribunals would have continuing, exclusive jurisdiction under this chapter, the order of that tribunal is controlling and shall be recognized;
    2. if more than one of the tribunals would have continuing, exclusive jurisdiction under this chapter,
      1. an order issued by a tribunal in the current home state of the child controls; or
      2. if an order has not been issued in the current home state of the child, the order most recently issued controls;
    3. if none of the tribunals would have continuing, exclusive jurisdiction under this chapter, the tribunal of this state shall issue a child support order, which controls.
  3. If two or more child support orders have been issued for the same obligor and same child, upon request of a party who is an individual or that is a support enforcement agency, a tribunal of this state having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under (b) of this section. The request may be filed with a registration for enforcement or a registration for modification under AS 25.25.601 25.25.616 or may be filed as a separate proceeding.
  4. The tribunal that issued the controlling order under (a), (b), or (c) of this section has continuing jurisdiction to the extent provided in AS 25.25.205 or 25.25.206 .
  5. A tribunal of this state that determines, by order, which is the controlling child support order under (b)(1) or (2) or (c) of this section, or that issues a new controlling child support order under (b)(3) of this section, shall include in that order
    1. the basis upon which the tribunal made its determination;
    2. the amount of prospective support, if any; and
    3. the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by AS 25.25.209 .
  6. Within 30 days after issuance of the order determining which is the controlling order, the party obtaining that order shall file a certified copy of that order in each tribunal that had issued or registered an earlier order of child support. Failure of the party or the support enforcement agency obtaining the order to file a certified copy as required under this subsection subjects that party to appropriate sanctions by a tribunal in which the issue of failure to file arises, but that failure has no effect on the validity or enforceability of the controlling order.
  7. A request to determine which is the controlling order must be accompanied by a copy of every child support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.
  8. An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made under this section must be recognized in proceedings under this chapter.

History. (§ 5 ch 57 SLA 1995; am § 51 ch 87 SLA 1997; am §§ 33 — 38 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote (b), which read, “If a proceeding is brought under this chapter and two or more child support orders have been issued by tribunals of this state or another state with regard to the same obligor and child, a tribunal of this state shall apply the following rules in determining which order to recognize for purposes of continuing, exclusive jurisdiction: (1) if only one of the tribunals would have continuing, exclusive jurisdiction under this chapter, the order of that tribunal is controlling and shall be recognized; (2) if more than one of the tribunals would have continuing, exclusive jurisdiction under this chapter, an order issued by a tribunal in the current home state of the child shall be recognized, but, if an order has not been issued in the current home state of the child, the order most recently issued is controlling and shall be recognized; (3) if none of the tribunals would have continuing, exclusive jurisdiction under this chapter, the tribunal of this state having jurisdiction over the parties shall issue a child support order, which is controlling and shall be recognized”; rewrote (c), which read, “If two or more child support orders have been issued for the same obligor and child and if the obligor or the individual obligee resides in this state, a party may request a tribunal of this state to determine which order controls and shall be recognized under (b) of this section. The request shall be accompanied by a certified copy of every support order in effect. Every party whose rights may be affected by a determination of the controlling order shall be given notice of the request for that determination”; rewrote (d), which read, “The tribunal that issued the order that shall be recognized as controlling under (a), (b), or (c) of this section is the tribunal that has continuing, exclusive jurisdiction in accordance with AS 25.25.205 ”; in (e), in the introductory language, substituted “, which is” for “the identity of”, and inserted “or (c)” following “(b)(1) or (2)”, added (c)(1) and (c)(2), and made related and stylistic changes; in (f), substituted “which is” for “the identity of”, inserted “or the support enforcement agency” following “Failure of the party”, and made a stylistic change; added (g) and (h).

Sec. 25.25.208. Child support orders for two or more obligees.

In responding to registrations or complaints for enforcement of two or more child support orders in effect at the same time with regard to the same obligor and different individual obligees, when at least one of the orders was issued by a tribunal of another state or a foreign country, a tribunal of this state shall enforce those orders in the same manner as if the orders had been issued by a tribunal of this state.

History. (§ 5 ch 57 SLA 1995; am § 39 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “Child support orders” for “Multiple child support orders” in the section heading, deleted “multiple” after “In responding to” and after “same manner as if the”, added “or a foreign country”.

Sec. 25.25.209. Credit for payments.

A tribunal of this state shall credit amounts collected for a particular period under any child support order against the amounts owed for the same period under any other child support order for support of the same child issued by a tribunal of this state, another state, or a foreign country.

History. (§ 5 ch 57 SLA 1995; am § 40 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote the section, which read, “Amounts collected and credited for a particular period under a support order issued by a tribunal of another state shall be credited against the amounts accruing or accrued for the same period under a support order issued by the tribunal of this state.”

Secs. 25.25.210 — 25.25.270. [Repealed, § 21 ch 57 SLA 1995.]

Sec. 25.25.280. Application of this chapter to nonresident subject to personal jurisdiction.

A tribunal of this state exercising personal jurisdiction over a nonresident in a proceeding under this chapter, under other law of this state relating to a support order, or recognizing a foreign support order may receive evidence from outside this state under AS 25.25.316 , communicate with a tribunal outside this state under AS 25.25.317 , and obtain discovery through a tribunal outside this state under AS 25.25.318 . In all other respects, AS 25.25.301 25.25.616 do not apply, and the tribunal shall apply the procedural and substantive law of this state.

History. (§ 41 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Sec. 25.25.281. Continuing, exclusive jurisdiction to modify spousal support order.

  1. A tribunal of this state issuing a spousal support order consistent with the law of this state has continuing, exclusive jurisdiction to modify the spousal support order throughout the existence of the support obligation.
  2. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state or a foreign country having continuing, exclusive jurisdiction over that order under the law of that state or foreign country.
  3. A tribunal of this state that has continuing, exclusive jurisdiction over a spousal support order may serve as
    1. an initiating tribunal to request a tribunal of another state to enforce the spousal support order issued in this state; or
    2. a responding tribunal to enforce or modify its own spousal support order.

History. (§ 41 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Article 3. Civil Provisions of General Application.

Sec. 25.25.301. Proceedings under this chapter.

  1. Except as otherwise provided in this chapter, AS 25.25.301 25.25.319 apply to all proceedings under this chapter.
  2. [Repealed, § 32 ch 102 SLA 2015.]
  3. An individual or a support enforcement agency may initiate a proceeding authorized under this chapter by filing a complaint or a comparable pleading in an initiating tribunal for forwarding to a responding tribunal or by filing a complaint or a comparable pleading directly in a tribunal of another state or a foreign country that has or can obtain personal jurisdiction over the respondent.

History. (§ 6 ch 57 SLA 1995; am § 52 ch 87 SLA 1997; am §§ 42, 102 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, repealed (b), in (c), substituted “initiate” for “commence” and added “or a foreign country.”

Sec. 25.25.302. Proceeding by minor parent.

A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor’s child.

History. (§ 6 ch 57 SLA 1995)

Sec. 25.25.303. Application of law of this state.

Except as otherwise provided in this chapter, a responding tribunal of this state shall

  1. apply the procedural and substantive law generally applicable to similar proceedings originating in this state and may exercise all powers and provide all remedies available in those proceedings; and
  2. determine the duty of support and the amount payable under the law and support guidelines of this state.

History. (§ 6 ch 57 SLA 1995; am § 43 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “in this chapter” for “by this chapter” in the introductory language, deleted “including the rules on choice of law” in (1); made stylistic changes.

Notes to Decisions

Role of Child Support Enforcement Division (now Child Support Services Agency). —

Where the state’s Child Support Enforcement Division (now the Child Support Services Agency) acted as a responding tribunal, the court appropriately applied state law to modification of a child support order originally issued in another state. State v. Bromley, 987 P.2d 183 (Alaska 1999).

Construction with other provisions. —

Because AS 25.25.604 defines when a state may diverge from local law, and because this section provides that local law applies except “as otherwise provided,” the sections, when read together, imply that forum law applies in all circumstances not expressly identified by the Uniform Interstate Family Support Act. State v. Bromley, 987 P.2d 183 (Alaska 1999).

Sec. 25.25.304. Duties of initiating tribunal.

  1. Upon the filing of a complaint or comparable pleading authorized by this chapter, an initiating tribunal of this state shall forward the complaint or comparable pleading and its accompanying documents
    1. to the responding tribunal or appropriate support enforcement agency in the responding state; or
    2. if the identity of the responding tribunal is unknown, to the state information agency of the responding state with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.
  2. If requested by the responding tribunal, a tribunal of this state shall issue a certificate or other documents and make findings required by the law of the responding state. If the responding tribunal is in a foreign country, upon request, the tribunal of this state shall specify the amount of support sought, convert the amount into the equivalent amount in the foreign currency under the applicable official or market exchange rate as publicly reported, and provide any other documents necessary to satisfy the requirements of the responding foreign tribunal.

History. (§ 6 ch 57 SLA 1995; am § 53 ch 87 SLA 1997; am § 44 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, deleted “three copies of” after “state shall forward” in the introductory language of (a), rewrote (b), which read, “If a responding state has not enacted a law or procedure substantially similar to this chapter, a tribunal of this state may issue a certificate or other documents and make findings required by the law of the responding state. If the responding state is a foreign jurisdiction, the tribunal may specify the amount of support sought and provide other documents necessary to satisfy the requirements of the responding state.”

Sec. 25.25.305. Duties and powers of responding tribunal.

  1. When a responding tribunal of this state receives a complaint or comparable pleading from an initiating tribunal or directly under AS 25.25.301(c) , it shall cause the complaint or pleading to be filed and notify the petitioner where and when it was filed.
  2. A responding tribunal of this state, to the extent not prohibited by law, may do one or more of the following:
    1. establish or enforce a support order, modify a child support order, determine the controlling child support order, or determine parentage of the child;
    2. order an obligor to comply with a support order, specifying the amount and the manner of compliance;
    3. order income withholding;
    4. determine the amount of any arrearages, and specify a method of payment;
    5. enforce orders by civil or criminal contempt, or both;
    6. set aside property for satisfaction of the support order;
    7. place liens and order execution on the obligor’s property;
    8. order an obligor to keep the tribunal informed of the obligor’s current residential address, electronic mailing address, telephone number, employer, address of employment, and telephone number at the place of employment;
    9. issue a bench warrant for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the bench warrant in any local and state computer systems for criminal warrants;
    10. order the obligor to seek appropriate employment by specified methods;
    11. award reasonable attorney fees and other fees and costs; and
    12. grant any other available remedy.
  3. A responding tribunal of this state shall include in a support order issued under this chapter, or in the documents accompanying the order, the calculations on which the support order is based.
  4. A responding tribunal of this state may not condition the payment of a support order issued under this chapter upon compliance by a party with provisions for visitation.
  5. If a responding tribunal of this state issues an order under this chapter, the tribunal shall send a copy of the order to the petitioner and the respondent and to the initiating tribunal, if any.
  6. If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this state shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.

History. (§ 6 ch 57 SLA 1995; am §§ 54, 55 ch 87 SLA 1997; am §§ 45, 46 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (b), substituted “not prohibited” for “otherwise specifically authorized” in the introductory language, rewrote (b)(1), which read, “issue or enforce a support order, modify a child support order, or render a judgment to determine parentage;” added “electronic mailing address” in (b)(8), added (f).

Notes to Decisions

Arrearages. —

Under Alaska law, arrearages were recoverable in actions under the Uniform Reciprocal Enforcement of Support Act. Bailey v. Haas, 655 P.2d 764 (Alaska 1982) (decided under former law).

There was no requirement that a request for arrearages be reduced to judgment by the petitioning state. Bailey v. Haas, 655 P.2d 764 (Alaska 1982) (decided under former law).

The petition’s failure to include a prayer for arrearages did not justify dismissal of the claim since the function of a pleading is to give notice of the type of claim asserted, the body of the petition stated that defendant had contributed nothing toward the support of his daughter, and the motion for an order of support specifically requested arrearages; therefore, defendant had notice of the claim for arrearages at the very latest by the date when the motion was filed. Bailey v. Haas, 655 P.2d 764 (Alaska 1982) (decided under former law).

Enforcement of support obligation for nonvisitation. —

In the appeal of an action to enforce an Oregon judgment for accrued and unpaid child support, a provision in the judgment requiring the father to pay the mother $25.00 for each weekend without visitation for child care expenses unless the mother requested no visitation was interpreted according to the rule of contract interpretation that conditions are disfavored. The payments were treated as an absolute obligation that was part of the child support obligation without conditions concerning geographical limitation, impracticality, lack of information about the mother’s whereabouts, reimbursement for actual child care expenses, or credit for nonweekend visitation. Logghe v. Jasmer, 686 P.2d 694 (Alaska 1984) (decided under former law).

Sec. 25.25.306. Inappropriate tribunal.

If a complaint or comparable pleading is received by an inappropriate tribunal of this state, the tribunal shall forward the complaint or pleading, and accompanying documents, to an appropriate tribunal in this state or another state and notify the petitioner where and when the complaint or pleading was sent.

History. (§ 6 ch 57 SLA 1995; am § 56 ch 87 SLA 1997; am § 47 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “the tribunal shall” for “it shall.”

Sec. 25.25.307. Duties of child support services agency.

  1. The child support services agency of this state, upon request, shall provide services to a petitioner in a proceeding under this chapter.
  2. In providing services under this chapter to the petitioner, the child support services agency of this state shall
    1. take all steps necessary to enable an appropriate tribunal of this state, another state, or a foreign country to obtain jurisdiction over the respondent;
    2. request an appropriate tribunal to set a date, time, and place for a hearing;
    3. make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;
    4. send notice in a record from an initiating, responding, or registering tribunal to the petitioner within five days after receipt, exclusive of Saturdays, Sundays, and legal holidays;
    5. send a copy of a communication in a record from the respondent or the respondent’s attorney to the petitioner within five days after receipt, exclusive of Saturdays, Sundays, and legal holidays; and
    6. notify the petitioner if jurisdiction over the respondent cannot be obtained.
  3. This chapter does not create or negate a relationship of attorney and client or other fiduciary relationship between the child support services agency or the attorney for the agency and the individual being assisted by the agency.
  4. A support enforcement agency of this state that requests registration of a child support order in this state for enforcement or modification shall make reasonable efforts
    1. to ensure that the order to be registered is the controlling order; or
    2. if two or more child support orders exist and the identity of the controlling order has not been determined, to ensure that a request for the determination is made in a tribunal having jurisdiction to do so.
  5. A support enforcement agency of this state that requests registration and enforcement of a support order, arrears, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.
  6. A support enforcement agency of this state shall issue or request a tribunal of this state to issue a child support order and an income withholding order that redirect payment of current support, arrears, and interest if requested to do so by a support enforcement agency of another state under AS 25.25.319 .

History. (§ 6 ch 57 SLA 1995; am § 57 ch 87 SLA 1997; am §§ 48, 49 ch 32 SLA 2015)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (b), substituted “agency of this state shall” for “agency shall, as appropriate,” in the introductory language, substituted “of this state, another state, or a foreign country” for “in this state or another state” in (b)(1), substituted “send notice in a record” for “send written notice” and “five days after receipt” for “two days of receipt” in (b)(4), substituted “send a copy of a communication in a record” for “send a copy of a written communication” and “five days after receipt” for “two days of receipt” in (b)(5); added (d).

Sec. 25.25.308. Duty of the Department of Revenue.

  1. If the Department of Revenue determines that the support enforcement agency is neglecting or refusing to provide services to an individual, the Department of Revenue may order the agency to perform its duties under this chapter or may provide those services directly to the individual.
  2. The Department of Revenue may determine that a foreign country has established a reciprocal arrangement for child support with this state and take appropriate action for notification of the determination.

History. (§ 50 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Sec. 25.25.309. Private counsel.

An individual may employ private counsel to represent the individual in proceedings authorized by this chapter.

History. (§ 6 ch 57 SLA 1995)

Sec. 25.25.310. Duties of state information and locator agency.

The child support services agency is the state information agency under this chapter, and it shall

  1. compile and maintain a current list, including addresses, of the tribunals in this state that have jurisdiction under this chapter and the appropriate agency offices in this state and transmit a copy to the state information agency of every other state;
  2. maintain a register of the names and addresses of tribunals and support enforcement agencies received from other states;
  3. forward to the appropriate tribunal in this state all documents concerning a proceeding under this chapter received from another state or a foreign country; and
  4. obtain information concerning the location of the obligor and the obligor’s property within this state that is not exempt from execution by postal verification and federal or state locator services, examination of telephone directories, requests for the obligor’s address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver’s licenses, and social security.

History. (§ 6 ch 57 SLA 1995; am § 58 ch 87 SLA 1997; am § 51 ch 32 SLA 2015)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added “the names and addresses of” in (2); substituted “another state or a foreign country” for an initiating tribunal or the state information agency of the initiating state” in (3).

Sec. 25.25.311. Pleadings and accompanying documents.

  1. In a proceeding under this chapter, a petitioner seeking to establish a support order to determine parentage of a child or to register and modify a support order of a tribunal of another state or a foreign country shall file a complaint or comparable pleading. Unless otherwise ordered under AS 25.25.312 , or otherwise prohibited by law, the complaint or comparable pleading or accompanying documents must provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee or the parent and the alleged parent, and the name, sex, residential address, social security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the complaint or comparable pleading must be accompanied by a copy of any support order known to have been issued by another tribunal. The complaint or comparable pleading may include other information that may assist in locating or identifying the respondent.
  2. The complaint or comparable pleading must specify the relief sought. The complaint or comparable pleading and accompanying documents must conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.

History. (§ 6 ch 57 SLA 1995; am § 52 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote (a), which read, “A petitioner seeking to establish or modify a support order or to determine parentage in a proceeding under this chapter shall verify the complaint or comparable pleading. Unless otherwise ordered under AS 25.25.312 , or otherwise prohibited by law, the complaint or comparable pleading or accompanying documents must provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee, and the name, sex, residential address, social security number, and date of birth of each child for whom support is sought. The complaint or comparable pleading must be accompanied by a certified copy of any support order in effect. The complaint or comparable pleading may include other information that may assist in locating or identifying the respondent.”

Sec. 25.25.312. Nondisclosure of information in exceptional circumstances.

If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information must be sealed and may not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety, or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.

History. (§ 53 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, repealed and reenacted the section.

Sec. 25.25.313. Costs and fees.

  1. Notwithstanding any other provision of law, including a rule of the Alaska Supreme Court, at the time a complaint or comparable pleading is filed under this chapter, a tribunal may not require the petitioner to pay a filing fee or other costs.
  2. If an obligee prevails, a responding tribunal of this state may assess against an obligor filing fees, including fees that were waived under (a) of this section, reasonable attorney fees, other costs, necessary travel expenses, and other reasonable expenses incurred by the obligee and the obligee’s witnesses. The tribunal may not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or the responding state or foreign country except as required by other law or court rule. Attorney fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney’s own name. Payment of support owed to the obligee has priority over fees, costs, and expenses assessed under this subsection.
  3. The tribunal shall order the payment of costs and reasonable attorney fees, including filing fees that were waived under (a) of this section, by a party who requests a hearing under this chapter if it determines that the hearing was requested primarily for delay. In a proceeding under AS 25.25.601 25.25.612 , a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change; however, the party who requested the hearing may present evidence to rebut this presumption.

History. (§ 6 ch 57 SLA 1995; am § 54 ch 32 SLA 2015)

Cross references. —

For effect of this section on Alaska Rules of Civil Procedure 79 and 82, see § 22, ch. 57, SLA 1995 in the Temporary and Special Acts.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added “of this state” and “or foreign country” in (b).

Collateral references. —

Entitlement to attorney’s fees under Uniform Parentage Act of 1973, 72 ALR6th 413.

Sec. 25.25.314. Limited immunity of petitioner.

  1. Participation by a petitioner in a proceeding under this chapter before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the petitioner in another proceeding.
  2. A petitioner is not amenable to service of civil process while physically present in this state to participate in a proceeding under this chapter.
  3. The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this chapter committed by a party while present in this state to participate in the proceeding.

History. (§ 6 ch 57 SLA 1995; am § 55 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added “under this chapter” in (a).

Sec. 25.25.315. Nonparentage as defense.

A party whose parentage of a child has been previously determined under law may not plead nonparentage as a defense to a proceeding under this chapter.

History. (§ 6 ch 57 SLA 1995)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Sec. 25.25.316. Special rules of evidence and procedure.

  1. The physical presence of a nonresident party who is an individual in a tribunal of this state is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage of a child.
  2. An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing outside this state.
  3. A copy of the record of child support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it and is admissible to show whether payments were made.
  4. Copies of bills for testing for parentage of a child, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least 10 days before trial or other proceeding, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.
  5. Documentary evidence transmitted from outside this state to a tribunal of this state by telephone, facsimile, or other electronic means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.
  6. In a proceeding under this chapter, a tribunal of this state shall permit a party or witness residing outside this state to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location. A tribunal of this state shall cooperate with other tribunals in designating an appropriate location for the deposition or testimony.
  7. If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.
  8. A privilege against disclosure of communications between spouses does not apply in a proceeding under this chapter.
  9. The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this chapter.

History. (§ 6 ch 57 SLA 1995; am §§ 56 — 61 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), substituted “a nonresident party who is an individual in a tribunal” for “the petitioner in a responding tribunal”, added “of a child” at the end; rewrote (b), which read, “A verified complaint or comparable pleading, affidavit, document substantially complying with federally mandated forms, and a document incorporated by reference in any of them, not excluded under the hearsay rule if given in person, is admissible in evidence if given under oath by a party or witness residing in another state.”; in (d), inserted “of a child” following “testing for parentage”; rewrote (e), which read, “Documentary evidence transmitted from another state to a tribunal of this state by telephone, telecopier, or other means that do not provide an original writing may not be excluded from evidence on an objection based on the means of transmission.”; in (f), inserted “under penalty of perjury” following “deposed to testify”, and made stylistic changes; added (j).

Notes to Decisions

Cited in

Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Sec. 25.25.317. Communications between tribunals.

A tribunal of this state may communicate with a tribunal outside this state in a record, or by telephone, electronic mail, or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding. A tribunal of this state may furnish similar information by similar means to a tribunal outside this state.

History. (§ 6 ch 57 SLA 1995; am § 62 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, inserted “, electronic mail” following “by telephone” and made stylistic changes.

Sec. 25.25.318. Assistance with discovery.

A tribunal of this state may

  1. request a tribunal outside this state to assist in obtaining discovery; and
  2. upon request, compel a person over which it has jurisdiction to respond to a discovery order issued by a tribunal outside this state.

History. (§ 6 ch 57 SLA 1995; am § 63 ch 32 SLA 2015)

Notes to Decisions

Cited in

Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Sec. 25.25.319. Receipt and disbursement of payments.

  1. The child support services agency of this state shall disburse promptly any amounts received under a support order, as directed by the order. The agency shall furnish to a requesting party or tribunal of another state or a foreign country a certified statement by the custodian of the record of the amounts and dates of all payments received.
  2. If neither the obligor, nor the obligee who is an individual, nor the child resides in this state, upon request from the support enforcement agency of this state or another state, the support enforcement agency of this state or a tribunal of this state shall
    1. direct that the support payment be made to the support enforcement agency of the state in which the obligee is receiving services; and
    2. issue and send to the obligor’s employer a conforming income withholding order or an administrative notice of change of payee, reflecting the redirected payments.
  3. The support enforcement agency of this state receiving redirected payments from another state under a law similar to (b) of this section shall furnish to a requesting party or tribunal of the other state a certified statement by the custodian of the record of the amount and dates of all payments received.

History. (§ 6 ch 57 SLA 1995; am §§ 64, 65 ch 32 SLA 2015)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, added “or a foreign country” in (a), added (b) and (c).

Article 4. Establishment of Support Order or Determination of Parentage.

Sec. 25.25.401. Establishment of support order.

  1. If a support order entitled to recognition under this chapter has not been issued, a responding tribunal of this state with personal jurisdiction over the parties may issue a support order if
    1. the individual seeking the order resides outside this state; or
    2. the support enforcement agency seeking the order is located outside this state.
  2. The tribunal may issue a temporary child support order if the tribunal determines that an order is appropriate and the individual ordered to pay is
    1. a presumed father of the child;
    2. petitioning to have the individual’s paternity adjudicated;
    3. identified as the father of the child through genetic testing;
    4. an alleged father who has declined to submit to genetic testing;
    5. shown by clear and convincing evidence to be the father of the child;
    6. an acknowledged father under AS 25.20.050 ;
    7. the mother of the child; or
    8. an individual who has been ordered to pay child support in a previous proceeding and the order has not been reversed or vacated.
  3. [Repealed, § 32 ch 102 SLA 2015.]
  4. If, after providing an obligor with notice and opportunity to be heard, an appropriate tribunal finds that the obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders under AS 25.25.305 .
  5. Before issuing an order under (b) of this section, the child support services agency shall adopt regulations for issuing such an order.

History. (§ 6 ch 57 SLA 1995; am §§ 66, 67, 102 ch 32 SLA 2015)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in (e) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), in the introductory language, twice deleted “child” preceding “support order”, inserted “with personal jurisdiction over the parties” following “tribunal of this state”, made stylistic changes; rewrote (b), which read, “The tribunal may issue a temporary child support order if (1) the respondent has signed a verified statement acknowledging parentage; (2) the respondent has been determined under law to be the parent; or (3) there is other clear and convincing evidence that the respondent is the child’s parent.”; repealed (c).

Sec. 25.25.402. Proceeding to determine parentage.

A tribunal of this state authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage of a child brought under this chapter or a law or procedure substantially similar to this chapter.

History. (§ 68 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Article 5. Enforcement of Support Order Without Registration.

Sec. 25.25.501. Employer’s receipt of income withholding order of another state.

An income withholding order issued in another state may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person defined as the obligor’s employer under AS 25.27 without first filing a complaint or comparable pleading or registering the order with a tribunal of this state.

History. (§ 6 ch 57 SLA 1995; am § 60 ch 87 SLA 1997; am § 69 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “sent by or on behalf of the obligee, or by the support enforcement agency, to the person” for “sent to the person or entity”.

Notes to Decisions

Personal jurisdiction required for foreign judgment enforcement. —

Although personal jurisdiction was not required to register a foreign support judgment under the Uniform Reciprocal Enforcement of Support Act, such jurisdiction was required for enforcement of the foreign judgment. Lagerwey v. Lagerwey, 681 P.2d 309 (Alaska 1984).

Post-judgment dismissal of underlying paternity suit. —

The effect of a post-judgment dismissal of the underlying California paternity suit on a final Alaska judgment was determined according to Alaska law. Rubalcava v. Hall, 674 P.2d 767 (Alaska 1983).

Arrears on a pendente lite child support order were due despite the dismissal of the underlying paternity suit. Rubalcava v. Hall, 674 P.2d 767 (Alaska 1983).

Waiver of objection to judgment. —

Defendant waived any objection that he could have asserted to a judgment for arrearages by voluntarily dismissing his appeal from the judgment after the California superior court had dismissed the paternity action pursuant to which the original California pendente lite order had been issued. Rubalcava v. Hall, 674 P.2d 767 (Alaska 1983).

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.502. Employer’s compliance with income withholding order of another state.

  1. Upon receipt of an order under AS 25.25.501 , the obligor’s employer shall immediately provide a copy of the order to the obligor.
  2. The employer shall treat an income withholding order issued in another state that appears regular on its face as if it were issued by a tribunal of this state.
  3. Except as provided by (d) of this section and AS 25.25.503 , the employer shall withhold and distribute the funds as directed in the withholding order by complying with the terms of the order, as applicable, that specify
    1. the duration and the amount of periodic payments of current child support, stated as a sum certain;
    2. the person designated to receive payments and the address to which the payments are to be forwarded;
    3. medical support, whether in the form of periodic cash payment, stated as a sum certain, or an order to the obligor to provide health insurance coverage for the child under a policy available through the obligor’s employment;
    4. the amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee’s attorney, stated as sums certain; and
    5. the amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.
  4. The employer shall comply with the law of the state of the obligor’s principal place of employment for withholding from income with respect to
    1. the employer’s fee for processing an income withholding order;
    2. the maximum amount permitted to be withheld from the obligor’s income; and
    3. the time periods within which the employer must implement the withholding order and forward the child support payment.

History. (§ 6 ch 57 SLA 1995; am § 61 ch 87 SLA 1997; am § 70 ch 32 SLA 2015)

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (c)(2), deleted “or agency” following “the person”.

Notes to Decisions

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.503. Employer’s compliance with two or more income withholding orders.

If an obligor’s employer receives two or more orders to withhold support from the earnings of the same obligor, the employer shall be considered to have satisfied the terms of the orders if the employer complies with the law of the state of the obligor’s principal place of employment to establish the priorities for withholding and allocating income withheld for two or more child support obligees.

History. (§ 62 ch 87 SLA 1997; am § 71 ch 32 SLA 2015)

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “child support obligees” for “child support orders” at the end, and made stylistic changes.

Sec. 25.25.504. Immunity from civil liability.

An employer that complies with an income withholding order issued in another state in accordance with AS 25.25.501 25.25.505 is not subject to civil liability to an individual or agency with regard to the employer’s withholding of child support from the obligor’s income.

History. (§ 62 ch 87 SLA 1997; am § 72 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “An employer that” for “An employer who” at the beginning.

Sec. 25.25.505. Penalties for noncompliance.

An employer that wilfully fails to comply with an income withholding order issued in another state and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this state.

History. (§ 62 ch 87 SLA 1997; am § 73 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “An employer that” for “An employer who” at the beginning, and made a stylistic change.

Sec. 25.25.506. Contest by obligor.

  1. An obligor may contest the validity or enforcement of an income withholding order issued in another state and received directly by an employer in this state by registering the order in a tribunal of this state and filing a contest to that order as provided in AS 25.25.601 25.25.616 or otherwise contesting the order in the same manner as if the order were issued by a tribunal of this state. The provisions of AS 25.25.604 apply to the contest.
  2. The obligor shall give notice of the contest to
    1. a support enforcement agency providing services to the obligee;
    2. each employer that has directly received an income withholding order relating to the obligor; and
    3. if
      1. a person is designated to receive payments in the income withholding order, to that person; or
      2. no person is designated to receive payments in the income withholding order, to the obligee.

History. (§ 62 ch 87 SLA 1997; am § 74 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), inserted “by registering the order in a tribunal of this state and filing a contest to that order as provided in AS 25.25.601 25.25.616 or otherwise contesting the order” following “an employer in this state”; in (b), in (b)(2), inserted “relating to the obligor” following “income withholding order”, in (b)(3), deleted “or an agency” or similar, following “person” three times.

Notes to Decisions

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.507. Administrative enforcement of orders.

  1. A party or support enforcement agency seeking to enforce a support order or an income withholding order, or both, issued in another state or a foreign support order may send the documents required for registering the order to the child support services agency of this state.
  2. Upon receipt of the documents, the child support services agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this state to enforce a support order or an income withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the child support services agency shall register the order under this chapter.

History. (§ 62 ch 87 SLA 1997; am § 75 ch 32 SLA 2015)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), inserted “or support enforcement agency” following “A party” at the beginning, substituted “in another state or a foreign support order” for “by a tribunal of another state” preceding “may send the documents”.

Notes to Decisions

Enforcement of tribal court support orders. —

Since tribal courts have inherent subject matter jurisdiction to decide the child support obligations owed to children who are tribal members or are eligible for membership, and State law requires the Alaska Child Support Services Division,t he child support enforcement agency, to recognize and enforce a tribal court's child support orders. State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Article 6. Registration, Enforcement, and Modification of Support Order.

Sec. 25.25.601. Registration of order for enforcement.

A support order or income withholding order issued in another state or a foreign support order may be registered in this state for enforcement.

History. (§ 6 ch 57 SLA 1995; am § 76 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), inserted “or support enforcement agency” following “A party” near the beginning, substituted “issued in another state or a foreign support order” for “issued by a tribunal of another state”.

Notes to Decisions

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Cited in

Robertson v. Riplett, 194 P.3d 382 (Alaska 2008).

Sec. 25.25.602. Procedure to register order for enforcement.

  1. Except as provided in AS 25.25.707 , a support order or income withholding order of another state or a foreign support order may be registered in this state by sending the following records to a tribunal of this state:
    1. a letter of transmittal to the tribunal requesting registration and enforcement;
    2. two copies, including one certified copy, of the order to be registered, including any modification of the order;
    3. a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;
    4. the name of the obligor and, if known,
      1. the obligor’s address and social security number;
      2. the name and address of the obligor’s employer and any other source of income of the obligor; and
      3. a description and the location of property in this state of the obligor not exempt from execution; and
    5. except as otherwise provided in AS 25.25.312 , the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.
  2. On receipt of a request for registration, the registering tribunal shall file the order as an order of a tribunal of another state or a foreign support order, together with one copy of the documents and information, regardless of their form.
  3. A complaint or comparable pleading seeking a remedy that must be affirmatively sought under other law of this state may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.
  4. If two or more orders are in effect, the person requesting registration shall
    1. furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;
    2. specify the order alleged to be the controlling order, if any; and
    3. specify the amount of consolidated arrears, if any.
  5. A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.

History. (§ 6 ch 57 SLA 1995; am § 63 ch 87 SLA 1997; am § 19 ch 132 SLA 1998; am §§ 77 — 79 ch 32 SLA 2015)

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote the introductory language of (a), which read, “A support order or income withholding order of another state may be registered in this state by sending the following documents and information to a tribunal of this state:”, in (a)(5), inserted “except as otherwise provided in AS 25.25.312 ” at the beginning, and deleted “agency or” preceding “person to whom”, and made stylistic changes; in (b), substituted “an order of a tribunal of another state or a foreign support order” for “a foreign judgment” following “shall file the order as”; added (d) and (e).

Notes to Decisions

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.603. Effect of registration for enforcement.

  1. A support order or income withholding order issued in another state or a foreign support order is registered when the order is filed in the registering tribunal of this state.
  2. A registered support order issued in another state or a foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.
  3. Except as otherwise provided in this chapter, a tribunal of this state shall recognize and enforce, but may not modify, a registered support order if the issuing tribunal had jurisdiction.

History. (§ 6 ch 57 SLA 1995; am § 80 ch 32 SLA 2015)

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), inserted “or a foreign support order” following “issued in another state”; in (b), inserted “support” following “A registered” near the beginning, and “or a foreign country” following “issued in another state”; in (c), substituted “this chapter” for “AS 25.25.601 25.25.612 ”, and inserted “support” following “a registered”.

Notes to Decisions

Collateral estoppel held inapplicable. —

While it was proper for the Arizona court to consider the father’s contention that he was improperly served, that court’s determination that he was not properly served with a 1993 Alaska child support order should not have had preclusive effect so as to invalidate the Alaska order. Bartlett v. State ex rel. Bartlett, 125 P.3d 328 (Alaska 2005).

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.604. Choice of law.

  1. Except as otherwise provided in (d) of this section, the law of the issuing state or foreign country governs
    1. the nature, extent, amount, and duration of current payments under a registered support order;
    2. the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and
    3. the existence and satisfaction of other obligations under the support order.
  2. In a proceeding for arrears under a registered support order, the statute of limitation of this state or of the issuing state or foreign country, whichever is longer, applies.
  3. A responding tribunal of this state shall apply the procedures and remedies of this state to enforce current support and collect arrears and interest due on a support order of another state or a foreign country registered in this state.
  4. After a tribunal of this state or another state determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this state shall prospectively apply the law of the state or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.

History. (§ 6 ch 57 SLA 1995; am §§ 81, 82 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote (a), which read, “The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.”; added (c) and (d).

Notes to Decisions

Construction with other provisions. —

Because this section defines when a state may diverge from local law, and because AS 25.25.303 provides that local law applies except “as otherwise provided,” the sections, when read together, imply that forum law applies in all circumstances not expressly identified by the Uniform Interstate Family Support Act. State v. Bromley, 987 P.2d 183 (Alaska 1999).

Factual findings. —

Because the Supreme Court was unable to review any factual findings regarding the sufficiency of a father's evidence that he purchased medical insurance for the parties' child, it remanded the case for interpretation under Texas law of the medical insurance reimbursement provision of the Texas support order, and for the superior court to make findings of fact to support its decision. The Supreme Court also remanded the matter to the superior court for specific findings related to the parties' respective child support obligations. Barton v. Means, — P.3d — (Alaska Dec. 6, 2017) (memorandum decision).

Interest on support arrearage. —

Under the Uniform Interstate Family Support Act, where the child resided in Alaska, the issuing state, Washington, could not modify the original support order, and the Child Support Enforcement Division (now the Child Support Services Agency) was entitled to collect interest on father’s support arrearage. Department of Revenue ex rel. Wallace v. Delaney, 962 P.2d 187 (Alaska 1998).

Quoted in

Hussein-Scott v. Scott, 298 P.3d 179 (Alaska 2013).

Sec. 25.25.605. Notice of registration of order.

  1. When a support order or income withholding order issued in another state or a foreign support order is registered, the registering tribunal of this state shall notify the nonregistering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
  2. A notice must inform the nonregistering party
    1. that a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state;
    2. that a hearing to contest the validity or enforcement of the registered order must be requested within 20 days after notice unless the registered order is under AS 25.25.708 ;
    3. that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted; and
    4. of the amount of alleged arrearages.
  3. Upon registration of an income withholding order for enforcement, the support enforcement agency or the registering tribunal shall notify the obligor’s employer under AS 25.27.
  4. If the registering party asserts that two or more orders are in effect, a notice must also
    1. identify the orders, the order alleged by the registering party to be the controlling order, and the consolidated arrears, if any;
    2. notify the nonregistering party of the right to a determination of which is the controlling order;
    3. state that the procedures provided in (b) of this section apply to the determination of which is the controlling order; and
    4. state that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.

History. (§ 6 ch 57 SLA 1995; am §§ 64, 65 ch 87 SLA 1997; am §§ 83, 84 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), inserted “or a foreign support order” following “issued in another state” and “of this state” following “the registering tribunal”; in (b), made a stylistic change in the introductory language, and, in (b)(2), added “unless the registered order is under AS 25.25.708 ” at the end; in the introductory language in (c), inserted “the support enforcement agency or” preceding “the registering tribunal”; added (d).

Sec. 25.25.606. Procedure to contest validity or enforcement of registered support order.

  1. A nonregistering party seeking to contest the validity or enforcement of a registered order in this state shall request a hearing within the time required by AS 25.25.605 . The nonregistering party may seek to vacate the registration, to assert a defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of alleged arrearages under AS 25.25.607 .
  2. If the nonregistering party fails to contest the validity or enforcement of the registered support order in a timely manner, the order is confirmed by operation of law.
  3. If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.

History. (§ 6 ch 57 SLA 1995; am §§ 66, 67 ch 87 SLA 1997; am §§ 85, 86 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), substituted “the time required by AS 25.25.605 ” for “20 days after the notice of the registration” following “shall request a hearing within”; in (b), substituted “registered support order” for “registered order”.

Notes to Decisions

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.607. Contest of registration or enforcement.

  1. A party contesting the validity or enforcement of a registered support order or seeking to vacate the registration has the burden of proving one or more of the following defenses:
    1. the issuing tribunal lacked personal jurisdiction over the contesting party;
    2. the order was obtained by fraud;
    3. the order has been vacated, suspended, or modified by a later order;
    4. the issuing tribunal has stayed the order pending appeal;
    5. there is a defense under the law of this state to the remedy sought;
    6. full or partial payment has been made;
    7. the statute of limitation under AS 25.25.604 precludes enforcement of some or all of the alleged arrearages; or
    8. the alleged controlling order is not the controlling order.
  2. If a party presents evidence establishing a full or partial defense under (a) of this section, the tribunal may stay enforcement of a registered support order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered support order may be enforced by all remedies available under the law of this state.
  3. If the contesting party does not establish a defense under (a) of this section to the validity or enforcement of a registered support order, the registering tribunal shall issue an order confirming the order.

History. (§ 6 ch 57 SLA 1995; am § 87 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a), in the introductory language, substituted “registered support order” for “registered order”, in (a)(7), substituted “the alleged arrearages” for “the arrearages”, added (a)(8), and made a related change; in (b), twice substituted “registered support order” for “registered order” and made a stylistic change; in (c), substituted “a registered support order” for “the order”.

Notes to Decisions

Collateral estoppel held inapplicable. —

While it was proper for an Arizona court to consider father’s contention that he was improperly served, that court’s determination that he was not properly served with a 1993 Alaska child support order should not have had a preclusive effect so as to invalidate the Alaska order. Bartlett v. State ex rel. Bartlett, 125 P.3d 328 (Alaska 2005).

Stated in

State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Sec. 25.25.608. Confirmed order.

Confirmation of a registered support order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to a matter that could have been asserted at the time of registration.

History. (§ 6 ch 57 SLA 1995; am § 88 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, substituted “a registered support order” for “a registered order” near the beginning.

Sec. 25.25.609. Procedure to register child support order of another state for modification.

If a party or the child support services agency seeks to modify, or to modify and enforce, a child support order issued in another state but not registered in this state, the party or agency shall register that order in this state in the same manner provided in AS 25.25.601 25.25.608 . A complaint for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.

History. (§ 6 ch 57 SLA 1995; am § 68 ch 87 SLA 1997)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Notes to Decisions

Cited in

Robertson v. Riplett, 194 P.3d 382 (Alaska 2008).

Sec. 25.25.610. Effect of registration for modification.

A tribunal of this state may enforce a child support order of another state registered for purposes of modification in the same manner as if the order had been issued by a tribunal of this state, but the registered support order may be modified only if the requirements of AS 25.25.611 or 25.25.613 have been met.

History. (§ 6 ch 57 SLA 1995; am § 89 ch 32 SLA 2015)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Sec. 25.25.611. Modification of child support order of another state.

  1. If AS 25.25.613 does not apply, upon complaint or comparable pleading, a tribunal of this state may modify a child support order issued in another state that is registered in this state, if, after notice and an opportunity for hearing, the tribunal finds that
    1. the following requirements are met:
      1. neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing state;
      2. a petitioner who is not a resident of this state seeks modification; and
      3. the respondent is subject to the personal jurisdiction of the tribunal of this state; or
    2. this state is the residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal, and all of the parties who are individuals have filed consents in a record in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction.
  2. Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
  3. A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state, including the duration of the obligation of support. If two or more tribunals have issued child support orders for the same obligor and child, the order that is controlling and must be recognized under the provisions of AS 25.25.207 establishes the nonmodifiable aspects of the support order.
  4. On issuance of an order by a tribunal of this state modifying a child support order issued in another state, the tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.
  5. In a proceeding to modify a child support order, the law of the state that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this state.
  6. Notwithstanding (a) — (e) of this section and AS 25.25.201(b) , a tribunal of this state retains jurisdiction to modify an order issued by a tribunal of this state if
    1. one party resides in another state; and
    2. the other party resides outside the United States.

History. (§ 6 ch 57 SLA 1995; am §§ 69, 70, 148 ch 87 SLA 1997; am § 20 ch 132 SLA 1998; am §§ 90 — 93 ch 32 SLA 2015; am § 79 ch 13 SLA 2019)

Revisor's notes. —

Subsections (e) and (f) were enacted as (f) and (g); relettered in 2015 at which time a conforming change was made to the text of (f).

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote the section, which read, “(a) After a child support order issued in another state has been registered in this state, unless the provisions of AS 25.25.613 apply, the responding tribunal of this state may modify that order only if, after notice and an opportunity for hearing, it finds that (1) the following requirements are met: (A) the child, the individual obligee, and the obligor do not reside in the issuing state; (B) a petitioner who is not a resident of this state seeks modification; and (C) the respondent is subject to the personal jurisdiction of the tribunal of this state; or (2) the child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal and all of the parties who are individuals have filed a written consent in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order; however, if the issuing state is a foreign jurisdiction that has not enacted a law or procedure substantially similar to this chapter, the written consent of an individual residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order. (b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner. (c) A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for the same obligor and child, the order that is controlling and must be recognized under the provisions of AS 25.25.207 establishes the nonmodifiable aspects of the support order. (d) On issuance of an order modifying a child support order issued in another state, a tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.”

The 2019 amendment, effective October 17, 2019, in (a)(2) inserted a comma following the first occurrence of “tribunal”.

Notes to Decisions

Construction. —

The use of the term “requirements” in this section means that Alaska substantive law applies when the state assumes exclusive jurisdiction to modify a child support order. State v. Bromley, 987 P.2d 183 (Alaska 1999).

Assumption of jurisdiction. —

Where parents and child no longer resided in the state in which a child support order had been issued, where the out-of-state mother sought modification through the state child support enforcement agency (now the child support services agency), and where the father was subject to that agency’s personal jurisdiction, the Alaska court could modify the original order and assume continuing jurisdiction. State v. Bromley, 987 P.2d 183 (Alaska 1999).

Interest on support arrearage. —

Under the Uniform Interstate Family Support Act, where the child resided in Alaska, the issuing state, Washington, could not modify the original support order, and the Child Support Enforcement Division (now the Child Support Services Agency) was entitled to collect interest on father’s support arrearage. Department of Revenue ex rel. Wallace v. Delaney, 962 P.2d 187 (Alaska 1998).

Jurisdiction found. —

Contrary to the husband’s contention in his challenge to the child support modification order, the trial court had continuing, exclusive jurisdiction over the support order after the husband moved to Missouri, as none of the exceptions in AS 25.25.202 applied, the issuing state was Alaska, the wife and the children lived in Alaska, and the parties filed no written consent for Missouri to modify the order. Teseniar v. Teseniar, 74 P.3d 910 (Alaska 2003).

Sec. 25.25.612. Recognition of order modified in another state.

If a child support order issued by a tribunal of this state is modified by a tribunal of another state that assumed jurisdiction under the Uniform Interstate Family Support Act, a tribunal of this state

  1. may enforce its order that was modified only as to arrears and interest accruing before the modification;
  2. may provide appropriate relief for violations of its order that occurred before the effective date of the modification; and
  3. shall recognize the modifying order of the other state, upon registration, for the purpose of enforcement.

History. (§ 6 ch 57 SLA 1995; am § 71 ch 87 SLA 1997; am § 94 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote the section, which read, “A tribunal of this state shall recognize a modification of its earlier child support order by a tribunal of another state that assumed jurisdiction under this chapter or a law or procedure substantially similar to this chapter and, upon request, except as otherwise provided in this chapter, shall (1) enforce the order that was modified only as to amounts accruing before the modification; (2) enforce only nonmodifiable aspects of that order; (3) provide other appropriate relief only for violations of that order that occurred before the effective date of the modification; and (4) recognize the modifying order of the other state, upon registration, for the purpose of enforcement.”

Sec. 25.25.613. Jurisdiction to modify support order of another state when individual parties reside in this state.

  1. If all of the individual parties reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state’s child support order in a proceeding to register that order.
  2. A tribunal of this state exercising jurisdiction as provided in this section shall apply the provisions of AS 25.25.101 25.25.209 and 25.25.601 25.25.614 to the enforcement or modification proceeding. AS 25.25.301 25.25.507 , 25.25.702 25.25.714 , 25.25.801 , and 25.25.802 do not apply, and the tribunal shall apply the procedural and substantive law of this state.

History. (§ 72 ch 87 SLA 1997; am § 95 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (b), substituted “25.25.702 — 25.25.714” for “25.25.701” in the second sentence.

Notes to Decisions

Cited in

Robertson v. Riplett, 194 P.3d 382 (Alaska 2008).

Sec. 25.25.614. Notice to issuing tribunal of modification.

Within 30 days after issuance of a modified child support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order and with each tribunal in which the party knows that an earlier order has been registered. Failure of the party obtaining the order to file a certified copy as required subjects that party to appropriate sanctions by a tribunal in which the issue of failure to file arises, but that failure has no effect on the validity or enforceability of the modified order of the new tribunal of continuing, exclusive jurisdiction.

History. (§ 72 ch 87 SLA 1997)

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Sec. 25.25.615. Jurisdiction to modify child support order of foreign country.

  1. Except as otherwise provided in AS 25.25.712 , if a foreign country lacks or refuses to exercise jurisdiction to modify its child support order under its laws, a tribunal of this state may assume jurisdiction to modify the child support order and bind all individuals subject to the personal jurisdiction of the tribunal, regardless of whether the consent to modification of a child support order otherwise required of the individual under AS 25.25.611 has been given or the individual seeking modification is a resident of this state or of the foreign country.
  2. An order issued by a tribunal of this state modifying a foreign child support order under this section is the controlling order.

History. (§ 96 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Sec. 25.25.616. Procedure to register child support order of foreign country for modification.

A party or support enforcement agency seeking to modify, or to modify and enforce, a foreign child support order not under the convention may register that order in this state under AS 25.25.601 25.25.608 if the order has not been registered. A complaint or comparable pleading for modification may be filed at the same time as a request for registration, or at another time. The complaint or comparable pleading must specify the grounds for modification.

History. (§ 96 ch 32 SLA 2015)

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this section effective July 1, 2015.

Article 7. Support Proceedings under Convention.

Effective dates. —

Section 107, ch. 32, SLA 2015 makes this article effective July 1, 2015.

Sec. 25.25.701. Proceeding to determine parentage [Repealed, § 102 ch 32 SLA 2015.]

Administrative Code. —

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Sec. 25.25.702. Definitions.

In AS 25.25.702 25.25.714 ,

  1. “application” means a request under the convention by an obligee or obligor, or on behalf of a child, made through a central authority for assistance from another central authority;
  2. “central authority” means the entity designated by the United States or a foreign country described in AS 25.25.101 (5)(D) to perform the functions specified in the convention;
  3. “convention support order” means a support order of a tribunal of a foreign country described in AS 25.25.101 (5)(D);
  4. “direct request” means a complaint or comparable pleading filed by an individual in a tribunal of this state in a proceeding involving an obligee, obligor, or child residing outside the United States;
  5. “foreign central authority” means the entity designated by a foreign country described in AS 25.25.101 (5)(D) to perform the functions specified in the convention;
  6. “foreign support agreement”
    1. means an agreement for support in a record that
      1. is enforceable as a support order in the country of origin;
      2. has been formally drawn up or registered as an authentic instrument by a foreign tribunal or authenticated by, or concluded, registered, or filed with, a foreign tribunal; and
      3. may be reviewed and modified by a foreign tribunal;
    2. includes a maintenance arrangement or authentic instrument under the convention;
  7. “United States central authority” means the United States Secretary of Health and Human Services.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.703. Applicability.

AS 25.25.702 25.25.714 apply only to a support proceeding under the convention. In such a proceeding, if a provision of AS 25.25.702 25.25.714 is inconsistent with AS 25.25.101 25.25.616 , AS 25.25.702 — 25.25.714 controls.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.704. Relationship of child support services agency to United States central authority.

The child support services agency of this state is recognized as the agency designated by the United States central authority to perform specific functions under the convention.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.705. Initiation by child support services agency of support proceeding under convention.

  1. In a support proceeding under AS 25.25.702 25.25.714 , the child support services agency of this state shall
    1. transmit and receive applications; and
    2. initiate or facilitate the institution of a proceeding regarding an application in a tribunal of this state.
  2. The following support proceedings are available to an obligee under the convention:
    1. recognition or recognition and enforcement of a foreign support order;
    2. enforcement of a support order issued or recognized in this state;
    3. establishment of a support order if there is not an existing order, including, if necessary, determination of parentage of a child;
    4. establishment of a support order if recognition of a foreign support order is refused under AS 25.25.709(b)(2) , (4), or (9);
    5. modification of a support order of a tribunal of this state; and
    6. modification of a support order of a tribunal of another state or a foreign country.
  3. The following support proceedings are available under the convention to an obligor against whom there is an existing support order:
    1. recognition of an order suspending or limiting enforcement of an existing support order of a tribunal of this state;
    2. modification of a support order of a tribunal of this state; and
    3. modification of a support order of a tribunal of another state or a foreign country.
  4. A tribunal of this state may not require security, bond, or deposit, however described, to guarantee the payment of costs and expenses in proceedings under the convention.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.706. Direct request.

  1. An individual may file a direct request seeking establishment or modification of a support order or determination of parentage of a child. In the proceeding, the law of this state applies.
  2. An individual may file a direct request seeking recognition and enforcement of a support order or support agreement. In the proceeding, AS 25.25.707 25.25.714 apply.
  3. In a direct request for recognition and enforcement of a convention support order or foreign support agreement,
    1. a security, bond, or deposit is not required to guarantee the payment of costs and expenses; and
    2. an obligee or obligor who has benefited from free legal assistance in the issuing country is entitled to benefit, at least to the same extent, from any free legal assistance provided for by the law of this state under the same circumstances.
  4. An individual filing a direct request is not entitled to assistance from the child support services agency.
  5. AS 25.25.702 25.25.714 do not prevent the application of laws of this state that provide simplified, more expeditious rules regarding a direct request for recognition and enforcement of a foreign support order or foreign support agreement.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.707. Registration of convention support order.

  1. Except as otherwise provided in AS 25.25.702 25.25.714 , a party who is an individual or a support enforcement agency seeking recognition of a convention support order shall register the order in this state as provided in AS 25.25.601 25.25.616 .
  2. Notwithstanding AS 25.25.311 and 25.25.602(a) , a request for registration of a convention support order must be accompanied by
    1. a complete text of the support order or an abstract or extract of the support order drawn up by the issuing foreign tribunal, which may be in the form recommended by the Hague Conference on Private International Law;
    2. a record stating that the support order is enforceable in the issuing country;
    3. if the respondent did not appear and was not represented in the proceedings in the issuing country, a record attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard or that the respondent had proper notice of the support order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal;
    4. a record showing the amount of arrears, if any, and the date the amount was calculated;
    5. a record showing a requirement for automatic adjustment of the amount of support, if any, and the information necessary to make the appropriate calculations; and
    6. if necessary, a record showing the extent to which the applicant received free legal assistance in the issuing country.
  3. A request for registration of a convention support order may seek recognition and partial enforcement of the order.
  4. A tribunal of this state may vacate the registration of a convention support order without the filing of a contest under AS 25.25.708 only if, acting on its own motion, the tribunal finds that recognition and enforcement of the order would be manifestly incompatible with public policy.
  5. The tribunal shall promptly notify the parties of the registration or the order vacating the registration of a convention support order.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.708. Contest of registered convention support order.

  1. Except as otherwise provided in AS 25.25.702 25.25.714 , AS 25.25.605 25.25.608 apply to a contest of a registered convention support order.
  2. A party contesting a registered convention support order shall file a contest not later than 30 days after notice of the registration, but if the contesting party does not reside in the United States, the contest must be filed not later than 60 days after notice of the registration.
  3. If the nonregistering party fails to contest the registered convention support order by the time specified in (b) of this section, the order is enforceable.
  4. A contest of a registered convention support order may be based only on grounds set out in AS 25.25.709 . The contesting party bears the burden of proof.
  5. In a contest of a registered convention support order, a tribunal of this state
    1. is bound by the findings of fact on which the foreign tribunal based its jurisdiction; and
    2. may not review the merits of the order.
  6. A tribunal of this state deciding a contest of a registered convention support order shall promptly notify the parties of its decision.
  7. A challenge or appeal, if any, does not stay the enforcement of a convention support order unless there are exceptional circumstances.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.709. Recognition and enforcement of registered convention support order.

  1. Except as otherwise provided in (b) of this section, a tribunal of this state shall recognize and enforce a registered convention support order.
  2. The following grounds are the only grounds on which a tribunal of this state may refuse recognition and enforcement of a registered convention support order:
    1. recognition and enforcement of the order is manifestly incompatible with public policy, including the failure of the issuing tribunal to observe minimum standards of due process, which include notice and an opportunity to be heard;
    2. the issuing tribunal lacked personal jurisdiction consistent with AS 25.25.201 ;
    3. the order is not enforceable in the issuing country;
    4. the order was obtained by fraud in connection with a matter of procedure;
    5. a record transmitted in accordance with AS 25.25.707 lacks authenticity or integrity;
    6. a proceeding between the same parties and having the same purpose is pending before a tribunal of this state and that proceeding was the first to be filed;
    7. the order is incompatible with a more recent support order involving the same parties and having the same purpose if the more recent support order is entitled to recognition and enforcement under this chapter in this state;
    8. payment, to the extent alleged arrears have been paid, in whole or in part;
    9. in a case in which the respondent neither appeared nor was represented in the proceeding in the issuing foreign country,
      1. if the law of that country provides for prior notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or
      2. if the law of that country does not provide for prior notice of the proceedings, the respondent did not have proper notice of the order and an opportunity to be heard in a challenge or appeal on fact or law before a tribunal; or
    10. the order was made in violation of AS 25.25.712 .
  3. If a tribunal of this state does not recognize a convention support order under (b)(2), (4), or (9) of this section,
    1. the tribunal may not dismiss the proceeding without allowing a reasonable time for a party to request the establishment of a new convention support order; and
    2. the child support services agency shall take all appropriate measures to request a child support order for the obligee if the application for recognition and enforcement was received under AS 25.25.705 .

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.710. Partial enforcement.

If a tribunal of this state does not recognize and enforce a convention support order in its entirety, it shall enforce any severable part of the order. An application or direct request may seek recognition and partial enforcement of a convention support order.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.711. Foreign support agreement.

  1. Except as otherwise provided in (c) and (d) of this section, a tribunal of this state shall recognize and enforce a foreign support agreement registered in this state.
  2. An application or direct request for recognition and enforcement of a foreign support agreement must be accompanied by
    1. a complete text of the foreign support agreement; and
    2. a record stating that the foreign support agreement is enforceable as an order of support in the issuing country.
  3. A tribunal of this state may vacate the registration of a foreign support agreement only if, acting on its own motion, the tribunal finds that recognition and enforcement would be manifestly incompatible with public policy.
  4. In a contest of a foreign support agreement, a tribunal of this state may refuse recognition and enforcement of the agreement if it finds
    1. recognition and enforcement of the agreement is manifestly incompatible with public policy;
    2. the agreement was obtained by fraud or falsification;
    3. the agreement is incompatible with a support order involving the same parties and having the same purpose in this state, another state, or a foreign country if the support order is entitled to recognition and enforcement under this chapter in this state; or
    4. the record submitted under (b) of this section lacks authenticity or integrity.
  5. A proceeding for recognition and enforcement of a foreign support agreement must be suspended during the pendency of a challenge to or appeal of the agreement before a tribunal of another state or a foreign country.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.712. Modification of convention child support order.

  1. A tribunal of this state may not modify a convention child support order if the obligee remains a resident of the foreign country where the support order was issued unless
    1. the obligee submits to the jurisdiction of a tribunal of this state, either expressly or by defending on the merits of the case, without objecting to the jurisdiction at the first available opportunity; or
    2. the foreign tribunal lacks or refuses to exercise jurisdiction to modify its support order or issue a new support order.
  2. If a tribunal of this state does not modify a convention child support order because the order is not recognized in this state, AS 25.25.709(c) applies.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.713. Personal information; limit on use.

Personal information gathered or transmitted under AS 25.25.702 25.25.714 may be used only for the purposes for which it was gathered or transmitted.

History. (§ 97 ch 32 SLA 2015)

Sec. 25.25.714. Record original language; English translation.

A record filed with a tribunal of this state under AS 25.25.702 25.25.714 must be in the original language and, if not in English, must be accompanied by an English translation.

History. (§ 97 ch 32 SLA 2015)

Article 8. Interstate Rendition.

Collateral references. —

Extradition under state statutes providing for reciprocal enforcement of duty to support dependents, 42 ALR2d 768.

Sec. 25.25.801. Grounds for rendition.

  1. The governor or a designee of the governor may
    1. demand that the governor of another state surrender an individual found in the other state who is charged criminally in this state with having failed to provide for the support of an obligee; or
    2. on the demand of the governor of another state, surrender an individual found in this state who is charged criminally in the other state with having failed to provide for the support of an obligee.
  2. A provision for extradition of individuals not inconsistent with this chapter applies to the demand even if the individual whose surrender is demanded was not in the demanding state when the crime was allegedly committed and has not fled from that state.

History. (§ 6 ch 57 SLA 1995; am § 98 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (a)(2), substituted “on the demand of the governor” for “on the demand by the governor” at the beginning.

Sec. 25.25.802. Conditions of rendition.

  1. Before making a demand that the governor of another state surrender an individual charged criminally in this state with having failed to provide for the support of an obligee, the governor of this state or the designee of the governor may require a prosecutor of this state to demonstrate that the obligee had initiated proceedings for support under this chapter at least 60 days previously or that the proceeding would be of no avail.
  2. If, under this chapter or a law substantially similar to this chapter, or the former provisions of this chapter, the governor of another state makes a demand that the governor of this state surrender an individual charged criminally in that state with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the governor or a designee of the governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the governor or designee may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.
  3. If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the governor or the designee of the governor may decline to honor the demand. If the petitioner prevails and the individual whose rendition is demanded is subject to a support order, the governor or designee may decline to honor the demand if the individual is complying with the support order.

History. (§ 6 ch 57 SLA 1995; am §§ 99, 100 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, in (b), deleted “the uniform reciprocal enforcement of support act, or the revised uniform reciprocal enforcement of support act” following “provisions of this chapter,”, and made a stylistic change.

Notes to Decisions

Post-judgment dismissal of underlying paternity suit. —

The effect of a post-judgment dismissal of the underlying California paternity suit on a final Alaska judgment was determined according to Alaska law. Rubalcava v. Hall, 674 P.2d 767 (Alaska 1983) (decided under former law).

Article 9. Miscellaneous Provisions.

Sec. 25.25.901. Uniformity of application and construction.

In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

History. (§ 6 ch 57 SLA 1995; am § 101 ch 32 SLA 2015)

Effect of amendments. —

The 2015 amendment, effective July 1, 2015, rewrote the section, which read, “This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.”

Sec. 25.25.902. Severability.

Under AS 01.10.030 , if a provision of this chapter or its application to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application.

History. (§ 6 ch 57 SLA 1995)

Sec. 25.25.903. Short title.

This chapter may be cited as the Uniform Interstate Family Support Act.

History. (§ 6 ch 57 SLA 1995)

Chapter 27. Child Support Services Agency.

Cross references. —

For provision prescribing the applicability of the 2009 amendments of this chapter, see § 14, ch. 45, SLA 2009, in the 2009 Temporary and Special Acts.

Administrative Code. —

For child support enforcement, see 15 AAC 125.

Legislative history reports. —

For report of the chair of the House Finance Committee on HCS SSSB 659 (Finance), from which ch. 251, SLA 1976 (HCS SSSB 659 (Rules)), which enacted this chapter, derives, see 1976 House Journal 1583.

Collateral references. —

41 Am. Jur. 2d, Illegitimate Children, §§ 90-97

59 Am. Jur. 2d, Parent and Child § 42 et seq.

14 C.J.S., Children Out of Wedlock, §§ 40 et seq., 88-93

67A Parent and Child, § 156 et seq.

Sec. 25.27.010. Creation of child support services agency.

There is created in the Department of Revenue the child support services agency.

History. (§ 1 ch 251 SLA 1976; am § 16 ch 126 SLA 1977; am § 1 ch 107 SLA 2004)

Revisor’s notes. —

Formerly AS 47.23.010. Renumbered in 1990.

Cross references. —

For provision designating the child support services agency created under this section as the support enforcement agency under the Uniform Interstate Family Support Act, see AS 25.25.102 .

Sec. 25.27.020. Duties and responsibilities of the agency.

  1. The agency shall
    1. seek enforcement of child support orders of the state in other jurisdictions and shall obtain, enforce, and administer the orders in this state;
    2. adopt regulations to carry out the purposes of this chapter and AS 25.25, including regulations that establish
      1. procedures for hearings conducted under AS 25.27.170 and for administrative enforcement of support orders;
      2. subject to AS 25.27.025 and to federal law, a uniform rate of interest on arrearages of support that shall be charged the obligor upon notice if child support payments are 10 or more days overdue or if payment is made by a check backed by insufficient funds; however, an obligor may not be charged interest on late payment of a child support obligation, other than a payment on arrearages, if the obligor is
        1. employed and income is being withheld from the obligor’s wages under an income withholding order;
        2. receiving unemployment compensation and child support obligations are being withheld from the obligor’s unemployment payments under AS 23.20.401 ; or
        3. receiving compensation for disabilities under AS 23.30 and child support obligations are being withheld from the obligor’s compensation payments;
      3. procedures for establishing and disestablishing paternity under AS 25.27.165 and 25.27.166 , including procedures for hearings; and
      4. procedures under which the agency shall enter into contracts or agreements with financial institutions, including brokerage houses, insurance companies, and other companies providing individual investment, transaction, or deposit accounts, doing business in the state to develop and operate an automated data match system as required by 42 U.S.C. 666(a)(17); the agency may pay a reasonable fee to a financial institution for conducting a data match under a contract or agreement under this subparagraph; the fee may not exceed the actual costs incurred by the financial institution for conducting the data match;
    3. administer and enforce AS 25.25 (Uniform Interstate Family Support Act);
    4. establish, enforce, and administer child support obligations administratively under this chapter;
    5. administer the state plan required under 42 U.S.C. 651 — 669 (Title IV-D, Social Security Act) as amended;
    6. disburse support payments collected by the agency to the obligee, together with interest charged under (2)(B) of this subsection;
    7. establish and enforce administratively under this chapter, or through the superior courts of the state, child support orders from other jurisdictions pertaining to obligors within the state;
    8. enforce and administer spousal support orders if a spousal support obligation has been established with respect to the spouse and if the support obligation established with respect to the child of that spouse is also being administered;
    9. obtain a medical support order that meets the requirements of AS 25.27.060(c) and 25.27.063 ;
    10. act on behalf of the Department of Health and Social Services in the enforcement of AS 47.07.025(b) ;
    11. establish or disestablish, administratively under AS 25.27.165 25.27.166 or through court action, the paternity of a child;
    12. promptly provide to the Bureau of Vital Statistics, in a format approved by the bureau, any final agency decision administratively establishing or disestablishing the paternity of a child born in this state; and
    13. act as the central registry for all child support orders and exchange information as required by federal law.
  2. In determining the amount of money an obligor must pay to satisfy the obligor’s immediate duty of support, the agency shall consider all payments made by the obligor directly to the obligee or to the obligee’s custodian before the time the obligor is ordered to make payments through the agency. After the obligor is ordered to make payments through the agency, the agency may not consider direct payments made to the obligee or the obligee’s custodian unless the obligor provides clear and convincing evidence of the payment.
  3. If admitted to the practice of law in the state, the director of the agency, or the director’s designee, shall sign a complaint or other pleadings on behalf of the agency in an action to establish or enforce a support obligation under this chapter in which the agency is not represented by the attorney general.
  4. The agency may issue an administrative order or request a court order that requires an individual in arrears under an order of support for a child who is receiving assistance under AS 47.07, or under AS 47.25.310 — 47.25.420 or a successor program, or for a child whose parent, guardian, or designee of the parent or guardian has applied for aid from the agency under AS 25.27.100 , to make payments according to an approved payment plan or, if the individual is not incapacitated, to participate in appropriate work activities.
  5. To the extent required by federal law and as necessary for locating individuals for child support purposes, the agency, the child support enforcement agency of another state, or the federal government is entitled to have access to information used by the Department of Public Safety or a successor agency to locate an individual for purposes relating to motor vehicles or law enforcement.
  6. The agency shall, by regulation, establish procedures and standards for the forgiveness of an arrearage owed to the state under AS 25.27.120 . The agency may forgive arrears under this section, with the approval of the commissioner and without the approval of the Department of Law, if
    1. the obligor
      1. has or obtains employment for which income withholding is initiated under AS 25.27.250 within 60 days after the date the obligor is approved for the forgiveness program;
      2. enrolls in and successfully completes an employment training program approved by the agency and obtains employment for which income withholding is initiated under AS 25.27.250 within 30 days after completion of the employment training program; or
      3. enters into an agreement with the agency for alternative payment procedures if the agency determines that there are unusual circumstances justifying a waiver of income withholding;
    2. the obligor is in compliance with additional requirements and limitations imposed by the agency by regulation to assure that forgiveness of the arrearage is in the best interest of the child and of the state; and
    3. the obligor makes monthly payments pursuant to a payment agreement approved by the agency; if the obligor misses more than two monthly payments in a calendar year or more than two consecutive payments without approval of the agency for good cause, the obligor is not eligible to continue in the arrears forgiveness program under this section.
  7. During each year in which an obligor complies with the requirements for the forgiveness of an arrearage under (f) of this section and any regulations adopted by the agency under that subsection, the agency may forgive up to 20 percent of the total arrearage owed to the state under AS 25.27.120 , including any interest owed on that debt. For purposes of determining the amount of the forgiveness, the arrears shall be calculated as of the date the obligor is approved for participation in the forgiveness program.
  8. The agency may establish by regulation requirements and limitations on eligibility in addition to those stated in (f) and (g) of this section.

History. (§ 1 ch 251 SLA 1976; am § 17 ch 126 SLA 1977; am §§ 3 — 5 ch 118 SLA 1982; am § 4 ch 40 SLA 1985; am § 1 ch 72 SLA 1986; am §§ 4, 5 ch 68 SLA 1988; am § 1 ch 7 FSSLA 1994; am § 4 ch 102 SLA 1994; am § 7 ch 57 SLA 1995; am §§ 74 — 77 ch 87 SLA 1997; am § 6 ch 106 SLA 2000; am §§ 12, 13 ch 108 SLA 2004)

Revisor’s notes. —

Formerly AS 47.23.020. Renumbered in 1990.

Cross references. —

For determination of amount of child support, see Rule 90.3, Alaska Rules of Civil Procedure, adopted for use by child support services agency at 15 AAC 125.010. For the successor program referred to in subsection (d), see AS 47.27; for the successor agency referred to in subsection (e), see Executive Orders 98 and 99, which transferred many functions related to motor vehicles to the Department of Administration and the Department of Transportation and Public Facilities.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For administrative establishment of child support orders, see 15 AAC 125, art. 2.

For paternity, see 15 AAC 125, art. 3.

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

For licensing actions, see 15 AAC 125, art. 7.

For arrears forgiveness program, see 15 AAC 125, art. 8.

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Legislative history reports. —

For House letter of intent relating to the 1985 amendment to this section, see 1985 House Journal page 740.

Notes to Decisions

Purpose of chapter. —

The express intent of the legislature with regard to the provisions of this chapter has consistently been to increase the ability of the state to enforce child support obligations and, toward that goal, to impose federally mandated liability on employers who fail to aid in that enforcement effort. Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Applicability. —

Subsection (b), which references the “immediate duty of support,” is inapplicable to a Child Support Enforcement Division (now the Child Support Services Agency) claim to recover public assistance. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Factors to be considered. —

In the Aid for Families with Dependent Children reimbursement context, the Child Support Enforcement Division (now the Child Support Services Agency) need not determine the “amount of money an obligor must pay to satisfy the immediate duty of support,” but only needs to look at the amount of public assistance paid and the amount of support provided for in the court order. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Tolling of statute of limitations. —

AS 09.10.140 applies to toll the statute of limitations on paternity actions even though the Child Support Enforcement Division (now the Child Support Services Agency) has the duty to bring an action on behalf of a minor. Grober v. State, Dep't of Revenue ex rel. C.J.W., 956 P.2d 1230 (Alaska 1998).

Interest on support arrearage. —

Under the Uniform Reciprocal Enforcement of Support Act, a Washington court’s recalculation and modification of father’s child support did not supersede the original Alaska support order, and the Child Support Enforcement Division (now the Child Support Services Agency) was entitled to collect interest on father’s support arrearage. Department of Revenue ex rel. Wallace v. Delaney, 962 P.2d 187 (Alaska 1998).

Merely because child support payments were originally due to an ex-wife, the Child Support Enforcement Division (CSED) (now the Child Support Services Agency) was not precluded from charging the father interest on arrearages, since this section clearly indicates that the legislature did not intend for the CSED (now CSSA) to turn a blind eye to overdue payments simply because the agency was not yet directly involved in their collection. Brown v. Brown, 983 P.2d 1264 (Alaska 1999).

Father could not avoid interest payments on child support arrearages by arguing that he had not received a computerized billing statement from the Child Support Enforcement Division (now the Child Support Services Agency) in the mail, since the superior court’s order notified him of his obligations. Brown v. Brown, 983 P.2d 1264 (Alaska 1999).

Attorney’s fees. —

Where divorced father moved to reduce the amount of child support payable to mother, and she applied for the services of the Child Support Enforcement Division (now the Child Support Services Agency) and authorized and consented to the appearance by the attorney general in court proceedings, as the statutory representative of the custodial parent, the CSED was entitled to the attorney’s fees. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

Reimbursement for public assistance to child. —

Although a support order that does not require the noncustodial parent to make any child support payment is not a “support order” under former AS 47.23.130(a) (now AS 25.27.130(a) ), the Child Support Enforcement Division (now the Child Support Services Agency) is entitled to reimbursement from the noncustodial parent for public assistance provided to the child in an amount determined by the state in accordance with a formula approved by the federal Secretary of Health and Human Services. State, Child Support Enf't Div. v. Gammons, 774 P.2d 181 (Alaska 1989).

Applied in

State v. Bromley, 987 P.2d 183 (Alaska 1999).

Quoted in

Ogard v. Ogard, 808 P.2d 815 (Alaska 1991); Department of Revenue, Child Support Div. v. Carrick, 923 P.2d 803 (Alaska 1996).

Stated in

Department of Revenue, Child Support Enforcement Div. ex rel. Gause v. Gause, 967 P.2d 599 (Alaska 1998).

Cited in

Saask v. Yandell, 702 P.2d 1327 (Alaska 1985); Department of Revenue, Child Support Enforcement Div. ex rel. P.M. v. Mitchell, 930 P.2d 1284 (Alaska 1997); Vokacek v. Vokacek, 933 P.2d 544 (Alaska 1997); Department of Revenue, Child Support Enforcement Div. ex rel. Hawthorne v. Rios, 938 P.2d 1013 (Alaska 1997).

Sec. 25.27.022. Establishment and enforcement requests from other states.

  1. The agency may act, under the laws of this state, upon requests from similar state agencies in other states that operate child support enforcement programs under 42 U.S.C. 651 — 669 (Title IV-D Social Security Act) to establish or disestablish paternity and to establish and enforce against obligors within this state support obligations determined in other states.
  2. Except for requests for assistance made under (c) of this section or AS 25.25.501 , requests from child support enforcement agencies in other states shall be made by application containing the information that this state’s agency requires and including written authorization from the requesting state agency and the obligee for this state’s agency to initiate necessary action.
  3. Requests from a child support agency of another state for assistance in enforcing support orders through high-volume automated administrative enforcement may be made by electronic or other means and must include the information required by 42 U.S.C. 666(a)(14).
  4. An employer receiving an income withholding order from a child support agency of another state shall comply with the choice of law provisions of AS 25.25.502(d) , 25.25.503 , and 42 U.S.C. 666(b)(6)(A)(i)(V).

History. (§ 5 ch 40 SLA 1985; am § 8 ch 57 SLA 1995; am §§ 21, 22 ch 132 SLA 1998)

Revisor’s notes. —

Formerly AS 47.23.022. Renumbered in 1990.

Cross references. —

For additional provisions on enforcement and establishment of child support orders in interstate cases, see AS 25.25. For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Administrative Code. —

For administrative establishment of child support orders, see 15 AAC 125, art. 2.

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Modification of foreign order. —

Conceivably, under this statute, the foreign agency could have determined that a support obligation exists without determining the amount and thus leave it to Alaska to determine the amount of the support obligation when it establishes it in Alaska. However, it does not create the authority for an independent Alaska child support order that differs from an out-of-state judicial decree of support. Department of Revenue, Child Support Enforcement Div. v. Dunning, 907 P.2d 1 (Alaska 1995).

Sec. 25.27.025. Rate of interest.

The rate of interest imposed under AS 25.27.020(a)(2)(B) shall be six percent a year or a lesser rate that is the maximum rate of interest permitted to be imposed under federal law.

History. (§ 6 ch 118 SLA 1982; am § 6 ch 40 SLA 1985; am § 12 ch 107 SLA 1996; am § 78 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.025. Renumbered in 1990.

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Prejudgment interest. —

Because the husband failed to support the parties’ son from 1991 to September of 1997, and this arrearage remained unpaid while the parties were married, the husband’s argument that the court abused its discretion by awarding prejudgment interest for the period from September 1997 to October 2002 was rejected. Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

Applied in

Ogard v. Ogard, 808 P.2d 815 (Alaska 1991).

Quoted in

Brown v. Brown, 983 P.2d 1264 (Alaska 1999).

Cited in

Vokacek v. Vokacek, 933 P.2d 544 (Alaska 1997).

Sec. 25.27.030. Establishment of fund.

There is established in the state general fund a continuing, revolving, reserve account to receive collections and make the authorized disbursements of the agency.

History. (§ 1 ch 251 SLA 1976)

Revisor’s notes. —

Formerly AS 47.23.030. Renumbered in 1990.

Sec. 25.27.040. Determination of paternity.

  1. The agency may appear on behalf of minor children or their mother or legal custodian or the state and initiate efforts to have the paternity of children born out of wedlock determined by the court. When the agency is a party to a court action in which paternity is contested, it shall request and pay for genetic testing and procedures under AS 25.20.050(e) and may recover the costs of the testing as provided in AS 25.20.050(f) .
  2. The agency may not attempt to establish paternity in any case
    1. involving incest or forcible rape, unless the mother of the child is legally competent and requests the establishment of paternity; in this paragraph, “forcible rape” means sexual assault in the first degree under AS 11.41.410 or a conviction under a law or ordinance from another jurisdiction with similar elements; “forcible rape” includes adjudications of delinquency for acts with elements similar to AS 11.41.410 ;
    2. when legal proceedings for adoption are pending; or
    3. when it would not be in the best interests of the children or the state.
  3. When the agency is a party in a court action in which paternity is contested, the agency shall move for a default judgment in a case that meets the conditions specified in AS 25.20.050(g) .

History. (§ 1 ch 251 SLA 1976; am § 18 ch 126 SLA 1977; am § 2 ch 69 SLA 1989; am § 4 ch 80 SLA 1994; am §§ 9, 10 ch 57 SLA 1995; am § 13 ch 107 SLA 1996; am § 79 ch 87 SLA 1997; am § 14 ch 108 SLA 2004)

Revisor’s notes. —

Formerly AS 47.23.040. Renumbered in 1990.

Administrative Code. —

For paternity, see 15 AAC 125, art. 3.

Notes to Decisions

Action by child. —

Given that the potential plaintiffs in paternity actions are not delimited by statute, a child, upon reaching the age of majority, may bring an action and, prior to the age of majority, a parent or guardian ad litem may bring an action on behalf of the child, or the Child Support Enforcement Division (now the Child Support Services Agency) may appear on behalf of the child or the child’s mother or legal guardian. Grober v. State, Dep't of Revenue ex rel. C.J.W., 956 P.2d 1230 (Alaska 1998).

Paternity tests for children of married women. —

Paternity tests should be paid for by the Alaska Child Support Enforcement Division (now the Child Support Services Agency) even though the child has a legally presumed father. The term “contested paternity action” applies to situations involving children born to unmarried women and married women who have overcome the presumption of the husband’s paternity by clear and convincing evidence. Department of Revenue, Child Support Enforcement Div. v. A.H., 880 P.2d 1048 (Alaska 1994).

Disestablishment of paternity. —

Where, at the time a question of paternity was raised, the Alaska Child Support Enforcement Division (now the Child Support Services Agency) did not have statutory authority to make a paternity determination, it did not abuse its discretion by instituting enforcement of a presumed father’s support obligation without making such determination. Department of Revenue, Child Support Enforcement Div. v. Wetherelt, 931 P.2d 383 (Alaska 1997).

Appointment of counsel for indigent defendant. —

In light of the fact that paternity suits, in effect, are brought by the state, the significance of the parent-child relationship involved, and the peculiar problems presented in such a proceeding, due process requires the appointment of counsel for an indigent defendant. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Compensation of counsel appointed pursuant to Soldiers’ and Sailors’ Civil Relief Act. —

Former Administrative Rule 12(d)(2)(vii) (amended and renumbered as Administrative Rule 12(e)(2)) authorized the superior court to order the state to advance compensation to counsel appointed pursuant to the Soldiers’ and Sailors’ Civil Relief Act to represent a defendant in a paternity action. Department of Revenue, Child Support Enforcement Div. ex rel. Dew v. Superior Court, 907 P.2d 14 (Alaska 1995).

Collateral references. —

Necessity or priority of appointment of independent guardian for child who is subject of paternity proceedings, 70 ALR4th 1033.

Right of illegitimate child to maintain action to determine paternity, 86 ALR5th 637.

Sec. 25.27.045. Determination of support obligation.

The agency may appear in an action seeking an award of support on behalf of a child owed a duty of support, or to enforce a spousal support order if a spousal support obligation has been established and if a support obligation, established with respect to a child of that spouse, is also being administered, and may also appear in an action seeking modification of a support order, decree, or judgment already entered. Action under this section may be undertaken upon application of an obligee, or at the agency’s own discretion if the obligor is liable to the state under AS 25.27.120(a) or (b).

History. (§ 19 ch 126 SLA 1977; am § 7 ch 40 SLA 1985)

Revisor’s notes. —

Formerly AS 47.23.045. Renumbered in 1990.

Administrative Code. —

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

Notes to Decisions

Authority of agency to seek modification. —

Based both on the statutory definition of the relevant terms and on inferences drawn from the statutory structure, the Child Support Enforcement Division (now the Child Support Services Agency) has the authority to seek modification of support orders in cases of de facto custodial change. Department of Revenue, Child Support Enforcement Div. v. Leitch, 999 P.2d 782 (Alaska 2000).

“Obligor.” —

The term “obligor” is not limited to those parents subject to an existing court order but also includes parents owing a duty imposable by a court order. Department of Revenue, Child Support Enforcement Div. v. Leitch, 999 P.2d 782 (Alaska 2000).

Attorney’s fees. —

Where divorced father moved to reduce the amount of child support payable to mother, and she applied for the services of the Child Support Enforcement Division (now the Child Support Services Agency) and authorized and consented to the appearance by the attorney general in court proceedings, as the statutory representative of the custodial parent the CSED (now CSSA) was entitled to attorney’s fees. Patch v. Patch, 760 P.2d 526 (Alaska 1988).

Cited in

Hendren v. State, Dep't of Revenue, 957 P.2d 1350 (Alaska 1998).

Collateral references. —

Liability of father for retroactive child support on judicial determination of paternity, 87 ALR5th 361.

Sec. 25.27.050. Legal assistance.

The agency shall contract with the Department of Law to provide needed legal services.

History. (§ 1 ch 251 SLA 1976; am § 20 ch 126 SLA 1977)

Revisor’s notes. —

Formerly AS 47.23.050. Renumbered in 1990.

Notes to Decisions

Legal services for Department of Health and Social Services. —

Under this section, the Department of Law may provide needed legal services for the Department of Health and Social Services. Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).

Sec. 25.27.060. Order of support.

  1. Unless otherwise provided under AS 25.24.910 or AS 25.27.061 , an order of support establishes a relationship by which the custodian of the child is the administrator for the purposes of administering child support on behalf of the child. The court shall carefully consider the need for support, the ability of both parents to meet such support obligations, the extent to which the parents supported the child before divorce, and the economic ability of the parents to pay after separation and divorce. The court shall also consider the effect on the support obligation of a change in custodian. The need of the child for support shall be considered regardless of the sex of the parent awarded custody of the child.
  2. [Repealed, § 21 ch 126 SLA 1977.]
  3. In a court or administrative proceeding where the support of a minor child is at issue, the court or agency, as applicable, may order either parent or both parents to pay the amount necessary for support, maintenance, nurture, and education of the child. Regardless of whether a support order for periodic payments is issued, the court or agency shall issue a medical support order, a cash medical support order, or both. The medical support order shall require health care insurance coverage for the child if health care insurance coverage is available to either parent or both parents for the child at a reasonable cost. The court or agency shall consider whether the child is eligible for services through the Indian Health Service or other insurance coverage before ordering either parent or both parents to provide health care coverage through insurance, cash medical support, or other means or a combination of insurance, cash medical support, or other means. The court or agency shall allocate equally the cost of health care insurance for the child between the parents unless there is good cause to allocate the costs unequally. If the obligor has the duty to make periodic payments for non-medical child support, the obligor’s periodic payments shall be decreased by the amount of the other parent’s portion of payments for health insurance ordered by the court or agency and actually paid by the obligor. If the obligor has a duty to make periodic payments for non-medical child support, the periodic payments shall be increased by the obligor’s portion of payments for health insurance if the other parent is ordered to and actually does obtain and pay for insurance. The court or agency shall allocate equally between the parents the cost of reasonable health care expenses not covered by private insurance unless there is good cause to allocate the costs unequally. One parent shall reimburse the other parent for the first parent’s share of the uncovered expenses paid by the parent within 30 days after receipt by the first parent of the bill for the health care, payment verification, and, if applicable, a health insurance statement indicating what portion of the cost is uncovered. The medical support order must meet the requirements of AS 25.27.063 . Upon a showing of good cause, the court may order the parents required to pay support to give reasonable security for payments.
  4. An order for prospective child support may be modified or revoked under AS 25.24.170 .

History. (§ 1 ch 251 SLA 1976; am § 21 ch 126 SLA 1977; am § 8 ch 40 SLA 1985; am § 6 ch 68 SLA 1988; am § 10 ch 117 SLA 1992; am § 2 ch 7 FSSLA 1994; am § 5 ch 102 SLA 1994; am § 7 ch 106 SLA 2000; am § 4 ch 45 SLA 2009)

Revisor’s notes. —

Formerly AS 47.23.060. Renumbered in 1990.

Cross references. —

For effect of the 2009 amendment of (c) of this section on Rule 90.3, Alaska Rules of Civil Procedure, by changing the standards for issuance of medical and other support orders by the court, see § 13, ch. 45, SLA 2009, in the 2009 Temporary and Special Acts.

Administrative Code. —

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Effect of amendments. —

The 2009 amendment, effective July 1, 2009, in (c), in the second sentence, added “, a cash medical support order or both” at the end; in the fourth sentence, substituted “, cash medical support, or other means or a combination of insurance, cash medical support,” for “or other means” at the end; made the reference to “either parent or both parents” uniform throughout the section.

Notes to Decisions

Trust as reasonable security. —

A trust comprised of obligor parent’s inheritance proceeds is reasonable security for child support payment, and creation of such a trust is authorized by subsection (c). Benson v. Benson, 977 P.2d 88 (Alaska 1999).

Quoted in

Webb v. Dept. of Revenue ex rel. Webb, 120 P.3d 197 (Alaska 2005).

Cited in

Murphy v. Murphy, 812 P.2d 960 (Alaska 1991); Lawson v. Lawson, 108 P.3d 883 (Alaska 2005).

Collateral references. —

Liability of father for retroactive child support on judicial determination of paternity, 87 ALR5th 361.

Right to credit against child support arrearages for time children spent in custody of noncustodial parent pursuant to visitation or court order, 118 ALR5th 385.

Right to credit on child-support arrearages for money given directly to child, 119 ALR5th 445.

Right to credit against child support arrearages for time child lived with noncustodial parent, other than for visitation or by court order, with approval of custodial parent, 120 ALR5th 229.

Right to credit on child support for contributions to housing costs, utility bills, and other alleged household necessities made for child’s benefit while child is not living with obligor parent, 123 ALR5th 565.

Right to credit on child support arrearages for gifts to child, 124 ALR5th 441.

Sec. 25.27.061. Payment of support to 18-year-olds.

A judgment, court order, or order of the agency under this chapter that provides for child support to be paid for the care of an unmarried 18-year-old child who is actively pursuing a high school diploma or an equivalent level of technical or vocational training while living as a dependent with a parent, guardian, or designee of the parent or guardian, may provide for the support to be paid directly to the child upon terms and conditions considered appropriate by the court or agency.

History. (§ 11 ch 117 SLA 1992)

Administrative Code. —

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

Sec. 25.27.062. Income withholding order for support.

  1. Unless the court or agency is establishing only a medical support order, a judgment, court order, or order of the agency under this chapter providing for support must contain an income withholding order. Except as provided in (m) of this section, the income withholding order must provide for immediate income withholding if the support order is
    1. being enforced by the agency and was issued or modified on or after July 8, 1994; or
    2. not being enforced by the agency and was issued on or after July 8, 1994.
  2. An income withholding order must direct the obligor, the obligor’s employer, future employer, and any person, political subdivision, or department of the state to withhold money due or to be due the obligor and pay the money to the agency, in an amount determined under (i) of this section. A court that issues a support order on or after July 8, 1994 shall send a copy of the order to the agency.
  3. Income withholding under a support order that does not require immediate withholding may be initiated under AS 25.27.150 if the support order is being enforced by the agency, or under (d) of this section if the support order is not being enforced by the agency, if
    1. the obligor requests withholding;
    2. the payments that the obligor has failed to make within 30 days of the monthly due date specified in the support order are equal to or greater than the support payable for one month; or
    3. the obligee requests withholding and
      1. the agency approves the request because all or part of the monthly payment of the obligor has been more than 10 days overdue more than one time in the preceding 12 months or there is reason to believe that the obligor might withdraw assets to avoid payment of support; in this paragraph, “10 days overdue” means occurring 10 days after the monthly due date specified in a support order; or
      2. the court approves the request for good cause.
  4. Income withholding under a support order that does not require immediate income withholding and that is not being enforced by the agency may be initiated either by filing a motion with the court and complying with applicable court rules or, if there is a child support arrearage, by making a written request to the agency for immediate income withholding under AS 25.27.150 . Application to the agency under this subsection may not, by itself, be construed as a request for other services of the agency. If immediate withholding under this subsection is sought through a motion to the court, the court shall order the beginning of income withholding under this subsection if the court finds that any of the grounds in (c)(1), (2), or (3)(B) of this section is satisfied. It is not a defense to a motion based on (c)(2) of this section that less than one full month’s payment is past due by 30 days if at least one full month’s payment was past due by 30 days on the date the motion was filed. Notice to the obligor of income withholding ordered under this subsection must be given in a manner that complies with court rules. In this subsection, “past due by 30 days” means unpaid 30 days after the monthly due date specified in the support order.
  5. The agency or the person who obtains an income withholding order under this chapter shall immediately send a copy of the income withholding order, a copy of the relevant provisions of AS 25.27.260 and this section, and an explanation of the effect of the statutes to persons who may owe money to an obligor. These items may be served by certified mail, return receipt requested, or they may be served personally by a process server, except that the agency alternatively may send the items by electronic means. An income withholding order made under this chapter is binding upon a person, employer, political subdivision, or department of the state immediately upon receipt of a copy of the income withholding order. A person receiving an income withholding order shall immediately begin withholding the specified amount from the obligor’s earnings. The amount withheld shall be sent to the agency within seven business days after the date the amount would otherwise have been paid or credited to the obligor. An employer may, for each payment made under an order, deduct $5 from other wages or salary owed to the obligor.
  6. An employer may not discharge, discipline, or refuse to employ an obligor on the basis of an income withholding order issued under this chapter. If an employer discharges, disciplines, or refuses to employ an obligor because of an income withholding obligation, the court, after notice and hearing, may order reinstatement or restitution to the obligor, or both. A person who violates this subsection or a regulation adopted to implement it, is liable for a civil penalty of not more than $1,000.
  7. An income withholding order under this chapter has priority over all other attachments, executions, garnishments, or other legal process brought under state law against the same property unless otherwise ordered by the court. An income withholding order is not limited to the wages of an obligor but may include all money owed to the obligor not otherwise exempt by law. Exemptions under AS 09.38 do not apply to income withholdings under this chapter.
  8. The court may order payment of all court costs that resulted from an income withholding proceeding under this chapter.
  9. An employer shall, to the extent permitted under 15 U.S.C. 1673(b), withhold the current support obligation from an obligor’s wages, including the obligor’s share, if any, of the premium for health coverage required to be withheld under AS 25.27.063(c)(4) . An employer shall withhold additional income, to the extent permitted under 15 U.S.C. 1673(b), from an obligor’s wages for any support arrearage.
  10. An employer may combine into a single payment to the agency amounts withheld from more than one obligor if the employer specifies the portion of the payment attributable to each obligor and complies with the time deadlines set out in (e) of this section.
  11. An employer who is withholding income of an obligor under an order that provides that the withheld income shall be paid to the agency shall notify the agency promptly when the obligor gives or receives notice of termination of employment and provide to the agency the obligor’s last known home address and the name and address of the obligor’s new employer, if known. The employer shall keep a record of the order to withhold income from the obligor for three years after the employer notifies the agency that the obligor has terminated employment. If, within that three-year period, the obligor is reemployed by the former employer, the employer shall immediately implement the order against the obligor’s earnings unless the employer has received notice from the agency that the order is no longer applicable to the obligor. If the obligor is reemployed by the former employer after that three-year period, the employer is not required to implement a withholding order against the obligor’s earnings until the employer receives a new order to withhold the obligor’s income under this chapter.
  12. Unless modified or terminated by the agency or the court, an order to withhold income under this chapter remains in effect, except as provided in (k) of this section, until the support order is satisfied. The agency or court may not terminate or modify an income withholding order solely on the ground that the obligor has paid all arrearages. Upon satisfaction of a support order, if the order is
    1. being enforced by the agency, the agency shall, within 15 working days, notify all persons served by the agency with the income withholding order that withholding is no longer required; if the agency receives money from an obligor under an income withholding order after the underlying support order has been satisfied and the agency was enforcing the support order at the time it became satisfied, the agency shall immediately return the overpayment to the obligor; if the agency fails to return an overpayment as required under this paragraph, the state is liable to the obligor for the amount of the overpayment, plus interest at the rate of six percent a year, and a person to whom the agency erroneously disbursed the overpayment is liable to the state for the amount disbursed, plus interest at the rate of six percent a year;
    2. not being enforced by the agency, the obligor shall file a motion in court requesting termination of the withholding order and serve the motion on the obligee; the court shall enter an order terminating the withholding order if the court determines that the support order has been satisfied; the obligor may deliver a copy of the termination order to persons who were served with the income withholding order; when a termination order is entered, the obligee shall, upon request of the obligor, notify the obligor of all persons who have been served with the income withholding order by the obligee.
  13. An income withholding order described in (a)(1) — (2) of this section is not subject to immediate withholding if the support order is
    1. being enforced by the agency and the obligor agrees to keep the agency informed of the obligor’s current employer and the availability of employment-related health insurance coverage for the children covered by the support order until the support order is satisfied and
      1. the agency has entered into its record a written agreement between the obligor and the obligee that provides for an alternative arrangement and income withholding has not been terminated previously and subsequently initiated; the agency must also be a party to an agreement under this paragraph if support has been assigned to the state; or
      2. the obligor or obligee demonstrates and the agency, in compliance with applicable federal law, finds good cause not to require immediate income withholding because it would not be in the best interests of the child and, in a case involving the modification of a support order, the obligor has made voluntary support payments under a court or agency order and has not been in arrears in an amount equal to the support payable for one month; in this paragraph, “in arrears” means failing to make a support payment within 30 days of the monthly due date specified in the order;
    2. not being enforced by the agency and the obligor agrees to keep the obligee informed of the obligor’s current employer and the availability of employment-related health insurance coverage for the children covered by the support order until the support order is satisfied and
      1. the court finds that (i) a written agreement exists between the obligor and the obligee that provides for an alternative arrangement and (ii) income withholding has not been terminated previously and subsequently initiated; the agency must also be a party to an agreement under this paragraph if support has been assigned to the state; or
      2. the obligor or obligee demonstrates, and the court, in compliance with applicable federal law, finds good cause not to require immediate income withholding because it would not be in the best interests of the child and, in a case involving the modification of a support order, the obligor has made voluntary support payments under a court or agency order and has not been in arrears in an amount equal to the support payable for one month; in this paragraph, “in arrears” means failing to make a support payment within 30 days of the monthly due date specified in the order; or
    3. an order that involves an obligor who is receiving social security or other disability compensation that includes regular payments to the children who are the subjects of the support order, except to the extent that the payments to the children do not equal the child support due each month.
  14. In calculating the amount of child support to be withheld under an income withholding order, the agency shall give credit to the obligor for the cost to the obligor of medical and dental insurance for the children and educational payments for the children to the extent that the insurance coverage and educational payments are required in the applicable child support order and are actually paid for by the obligor.

History. (§ 1 ch 96 SLA 1981; am §§ 16, 17 ch 59 SLA 1982; am § 1 ch 118 SLA 1982; am § 39 ch 6 SLA 1984; am § 2 ch 144 SLA 1984; am §§ 1, 2 ch 40 SLA 1985; am §§ 2 — 5 ch 72 SLA 1986; am §§ 7, 8 ch 68 SLA 1988; am §§ 3 — 13 ch 7 FSSLA 1994; am § 6 ch 102 SLA 1994; am §§ 80 — 82 ch 87 SLA 1997; am § 23 ch 132 SLA 1998; am § 1 ch 46 SLA 2000; am § 8 ch 106 SLA 2000)

Revisor’s notes. —

Formerly AS 09.65.132 . Renumbered as AS 47.23.062 in 1985. Renumbered again in 1990.

Cross references. —

For immunity for certain actions relating to child support, see AS 09.65.250 .

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Legislative history reports. —

For letter of intent adopted by legislature in connection with the 1994 amendments to this section by ch. 7, FSSLA 1994 (HCS CSSB 190(STA)), see 1994 Senate Journal 3463.

Notes to Decisions

Collection of accrued back child support. —

Income assignment order can be used to collect a judgment for back child support accruing before the order of support was issued. Ralston v. State, Child Support Enf't Div. ex rel. Wall, 728 P.2d 635 (Alaska 1986).

Although this section does not speak specifically to whether arrearages include amounts owed due to a judgment of back child support, the purposes behind the section justify use of an income assignment order to collect accrued back child support; there is no language in AS 47 that explicitly prohibits such use. Ralston v. State, Child Support Enf't Div. ex rel. Wall, 728 P.2d 635 (Alaska 1986).

Where defendant acknowledged his paternity of the child because he erroneously believed he was her father, and nine years later pursued an administrative appeal and disestablished his paternity in superior court, because CSED’s (now CSSA’s) support order remained open to review, and because he rebutted the presumption of paternity created by his legal acknowledgment at his first formal opportunity, the superior court prohibited CSED (now CSSA) from collecting arrears. Department of Revenue, Child Support Enforcement Div. v. Button, 7 P.3d 74 (Alaska 2000).

Quoted in

Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Cited in

Rubalcava v. Hall, 674 P.2d 767 (Alaska 1983); Murphy v. Murphy, 812 P.2d 960 (Alaska 1991); Pacana v. State, Dep't of Revenue ex rel Pacana, 941 P.2d 1263 (Alaska 1997); State v. DeLeon, 103 P.3d 897 (Alaska 2004).

Sec. 25.27.063. Medical support order.

  1. [Repealed, § 23 ch 106 SLA 2000.]
  2. If a parent who is required to provide health care coverage under a medical support order is eligible for family health coverage through an employer, the court or agency issuing the medical support order shall send a copy of the medical support order to the employer. If the agency has notice that the parent has changed or will be changing employment and is or will be eligible for family health coverage through the new employer, the agency shall send a copy of the medical support order to the new employer.
  3. An employer who receives a copy of a medical support order under (b) of this section
    1. shall allow the employee named in the order to enroll the child under the family coverage without regard to restrictions relating to enrollment periods if the child is otherwise eligible and is not already enrolled under the family coverage;
    2. shall, if the employee fails to apply for enrollment of a child under (1) of this subsection, enroll the child under the employee’s family coverage upon application by the child’s other parent or custodian, the child support services agency, or the Department of Health and Social Services;
    3. may not disenroll or eliminate coverage of the child while the employee is still employed by the employer unless the employer has eliminated family health coverage for all of its employees or has received written evidence that
      1. the employee is no longer required by court order or administrative order to provide the child’s insurance coverage; or
      2. the child is or will be enrolled in comparable health coverage through another insurer that will take effect not later than the effective date of the disenrollment or elimination of coverage; and
    4. shall withhold from the employee’s compensation the employee’s share, if any, of premiums for health coverage to the extent permitted under 15 U.S.C. 1673(b) (Consumer Credit Protection Act) and pay the withheld amount to the appropriate insurer; if federal regulations allow the employer to withhold less than the employee’s share of the insurance premium, the employer may withhold the lesser amount and pay it to the appropriate insurer.

History. (§ 7 ch 102 SLA 1994; am § 24 ch 132 SLA 1998; am §§ 9, 23 ch 106 SLA 2000)

Revisor’s notes. —

In 2004, “child support enforcement agency” was changed to “child support services agency” in (c) of this section in accordance with § 12(a), ch. 107, SLA 2004.

Cross references. —

For legislative purposes in enacting this section, see § 1, ch. 102, SLA 1994 in the Temporary and Special Acts; for purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts; for effect of ch. 106, SLA 2000 (relating to medical support orders) on Alaska Rule of Civil Procedure 90.3, see secs. 24 and 25, ch. 106, SLA 2000 in the 2000 Temporary and Special Acts.

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Quoted in

Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Sec. 25.27.065. Waiver of child support.

  1. A custodian of a child, including a custodial parent, owes a duty to that child to ensure that child support is paid by a noncustodial parent who is obligated to pay it.  An agreement to waive past or future child support, made between an obligor and a person who is entitled to receive support on behalf of an obligee, is not enforceable unless
    1. the agreement is put in writing at the time the agreement is made; and
    2. the agreement is signed at the time it is made by both the obligor and the person acting for the obligee.
  2. When the right to receive child support has been assigned to a governmental entity, an agreement under (a) of this section that has not been adopted as an administrative order of the agency is not effective during a period when the obligee is receiving assistance under AS 47.27.
  3. In a separation, dissolution, or divorce proceeding, a court may not accept a waiver of support by a custodial parent without proof that the custodial parent can support the needs of the child adequately.

History. (§ 6 ch 144 SLA 1984; am § 8 ch 102 SLA 1994; am § 14 ch 107 SLA 1996)

Revisor’s notes. —

Formerly AS 47.23.065. Renumbered in 1990.

Notes to Decisions

Review and effect of waiver. —

Because no parental agreement regarding child support is valid until it receives judicial scrutiny under Alaska Rule of Civil Procedure 90.3, (1) a child support waiver is not valid and enforceable until a court has reviewed and approved the substantive adequacy of the waiver under Rule 90.3, (2) where a child support award has been established through an initial dissolution proceeding, any subsequent proposed waiver must be presented to the court for review under the modification procedures provided for in Rule 90.3(h)(1), and (3) a child support waiver presented after the initial dissolution proceeding will be given only prospective effect from the date of judicial approval. Nix v. Nix, 855 P.2d 1332 (Alaska 1993).

Improper Waiver. —

Where an agreement purported to provide that a lump sum payment satisfied awards for all past and future child support, as well as any award for the child’s medical insurance, despite the possibility that the child’s needs might change or that the father’s income might increase, and where the father purported to agree to relinquish all parental rights and to consent to adoption, that purported termination of parental rights was contrary to law. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Quoted in

Cox v. Cox, 776 P.2d 1045 (Alaska 1989).

Cited in

Wolff v. Cunningham, 187 P.3d 479 (Alaska 2008).

Sec. 25.27.070. Order to assign wages for support.

  1. In a proceeding in which the court has ordered either or both parents to pay for the support of a child, the court may, on its own motion or motion of a party or the agency on behalf of a party, after notice and an opportunity for hearing, order either parent or both parents to assign to the custodian of the child that portion of salary or wages of either parent due them currently and in the future sufficient to pay the amount ordered by the court for the support, maintenance, nurture, and education of the child.
  2. The order of assignment is binding upon an employer upon service of a copy of the order upon the employer and until further order of the court.  The employer may, for each payment made under the order, deduct $1 from other wages or salary owed to the employee.
  3. The assignment made under court order has priority as against an attachment, execution, or other assignment unless otherwise ordered by the court.
  4. An employer may not terminate an employee’s employment because wages of the employee are subject to an order under this section.

History. (§ 1 ch 251 SLA 1976; am § 22 ch 126 SLA 1977; am § 12 ch 117 SLA 1992)

Revisor’s notes. —

Formerly AS 47.23.070. Renumbered in 1990.

Cross references. —

For immunity for certain actions relating to child support, see AS 09.65.250 .

Notes to Decisions

Quoted in

Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Cited in

State v. DeLeon, 103 P.3d 897 (Alaska 2004).

Sec. 25.27.075. Employment information.

  1. An employer doing business in the state shall report to the agency the hiring, rehiring, or return to work of each employee. The report shall be made within the time limits set out in (b) of this section. The report must contain the name, address, and social security number of the newly hired employee, the name and address of the employer, and the identifying number assigned to the employer by the United States Department of the Treasury, Internal Revenue Service. Violation of this subsection does not give rise to a private cause of action.
  2. An employer required to report under (a) of this section shall use the following procedures to make the report:
    1. if the report is submitted magnetically or electronically, the report shall be made in a format mutually agreed upon by the employer and the agency; an employer reporting under this paragraph shall make two transmissions a month, not less than 12 days nor more than 16 days apart; or
    2. if the report is not submitted magnetically or electronically, the report shall be made on a United States Department of the Treasury, Internal Revenue Service, W-4 form or, at the option of the employer, on an equivalent form; an employer reporting under this paragraph shall make the report to the agency not later than 20 days after the date of the hiring, rehiring, or return to work of the employee; the report shall be transmitted by the employer by first class mail.
  3. An employer that does business in this state and that has employees in at least one other state is not required to comply with (a) of this section if, in compliance with the laws of that state, the employer
    1. submits timely magnetic or electronic reports of hires, rehires, or returns to work to the state directory of new hires of another state in which the employer has employees; and
    2. has provided written notification of its election under this subsection to the United States Secretary of Health and Human Services.
  4. In addition to reporting under (a) of this section, an employer of an obligor shall promptly provide to the agency, or the child support enforcement agency of another state, information requested regarding the obligor’s compensation, employment, wages or salary, and occupation.
  5. An employer may charge $1 to each employee who is reported to the agency under this section to cover the cost of the reporting.
  6. In addition to other sanctions available under the law, an employer that violates this section is liable for a civil penalty for each failure to meet the requirements of this section of not more than
    1. $10 for each employee who is newly hired, rehired, or newly returned to work; and
    2. $100 if the failure is the result of a conspiracy between the employee and the employer not to supply the required report or to supply a false or incomplete report concerning an employee.
  7. In this section,
    1. “employee” has the meaning given in 26 U.S.C. 3401(c); “employee” does not include an employee of a federal or state agency performing intelligence or counterintelligence functions if the head of that agency has determined that reporting under this section on the employee could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission;
    2. “employer” has the meaning given in 26 U.S.C. 3401(d); “employer” includes a governmental entity and a labor organization;
    3. “labor organization” has the meaning given in 29 U.S.C. 152; “labor organization” includes an entity that is used by the labor organization and another employer to carry out hiring or other requirements described in 29 U.S.C. 158(f)(3) in accordance with an agreement between the labor organization and the other employer.

History. (§ 9 ch 40 SLA 1985; am §§ 1, 2 ch 75 SLA 1991; am § 11 ch 57 SLA 1995; am § 25 ch 132 SLA 1998; am § 11 ch 54 SLA 2001)

Revisor’s notes. —

Formerly AS 47.23.075. Renumbered in 1990.

Cross references. —

For purpose and findings provisions related to the 1998 amendments to this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts. For applicability of the 1998 amendments, see § 55, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Notes to Decisions

Quoted in

Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Sec. 25.27.080. Enforcement of support orders.

  1. A court order requiring payment of child support shall be modified to order payments be made to the agency upon application.
  2. The agency on behalf of the custodian or the state shall take all necessary action permitted by law to enforce child support orders, including petitioning the court for orders to aid in the enforcement of child support.
  3. The determination or enforcement of a duty of support is unaffected by any interference by the custodian of the child with rights of custody or visitation granted by a court.  When the agency appears on behalf of a child in an action seeking to establish or enforce support, the court may not adjudicate custody, visitation, or property rights in the same action.
  4. An order of arrest may not be issued in the enforcement of child support unless the court has reason to believe that the obligor may flee the jurisdiction or unless the obligor has been ordered to appear in the action and has failed to do so.

History. (§ 1 ch 251 SLA 1976; am § 23 ch 126 SLA 1977; am § 7 ch 144 SLA 1984; am § 15 ch 108 SLA 2004)

Revisor’s notes. —

Formerly AS 47.23.080. Renumbered in 1990. In 1977 the term “obligor” was substituted for “obligee” in two locations in (d) of this section to correct a manifest error in ch. 126, SLA 1977.

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Enforcement of child support orders. —

Subsection (b) of this section expressly permits the Alaska Child Support Enforcement Division (now the Child Support Services Agency) to petition the court for orders to aid in the enforcement of child support. State v. DeLeon, 103 P.3d 897 (Alaska 2004).

Since tribal courts have inherent subject matter jurisdiction to decide the child support obligations owed to children who are tribal members or are eligible for membership, and State law requires the Alaska Child Support Services Division,t he child support enforcement agency, to recognize and enforce a tribal court's child support orders. State v. Cent. Council of Tlingit, 371 P.3d 255 (Alaska 2016).

Visitation sanctions not offset against support arrears. —

Subsection (c) prohibited the trial court from applying the amount of visitation sanctions as an offset in the calculation of father’s support arrears. Hermosillo v. Hermosillo, 962 P.2d 891 (Alaska 1998).

Cited in

Lawson v. Lawson, 108 P.3d 883 (Alaska 2005).

Sec. 25.27.085. Subpoenas.

  1. The agency may subpoena persons, books, records, and documents to
    1. obtain any financial or other information needed to establish, modify, or enforce a child support order;
    2. determine the paternity of a child under AS 25.27.165 ; or
    3. disestablish the paternity of a child under AS 25.27.166 .
  2. An administrative subpoena issued under this section shall be served in the manner provided for service of liens under AS 25.27.240 . Proof of service may be completed according to Rule 5, Alaska Rules of Civil Procedure.
  3. A person who is issued an administrative subpoena shall be provided an opportunity to refuse to comply with it for good cause by filing a request for a conference with the agency in this state in the manner and within the time specified in regulations adopted by the agency. Good cause shall be limited to mistake in identity of the person or to a prohibition under law to release such information.
  4. After a conference requested under (c) of this section, the agency shall issue an order on the request relating to good cause. If the person continues to refuse to comply with the administrative subpoena, the agency in this state shall issue an order to impose a civil penalty of $10 for each day of noncompliance with the subpoena.
  5. An order imposing a civil penalty under this section is a final administrative decision and may be appealed under AS 25.27.210 .
  6. This section does not limit the ability of the agency to make other lawful requests for information.
  7. If a person fails to comply with a subpoena issued under this section, the agency may apply to the court for an order to compel obedience by proceedings for contempt as if the subpoena had been issued by a court.

History. (§ 8 ch 144 SLA 1984; am § 12 ch 57 SLA 1995; am §§ 83, 84 ch 87 SLA 1997; am § 26 ch 132 SLA 1998)

Revisor’s notes. —

Formerly AS 47.23.085. Renumbered in 1990.

Cross references. —

For immunity for certain actions relating to child support, see AS 09.65.250 .

Notes to Decisions

Cited in

Alaska State Comm'n for Human Rights v. Anderson, 426 P.3d 956 (Alaska 2018).

Sec. 25.27.086. Subpoenas issued by agency of another state.

  1. If the child support enforcement agency of another state issues a subpoena regarding persons, books, records, or documents in this state, the subpoena must be complied with as if it were issued by this state’s child support services agency if
    1. the subpoena is for obtaining
      1. financial or other information needed to establish, modify, or enforce a support order; or
      2. information needed to determine or disestablish the paternity of a child under the laws of the state in which the subpoena was issued; and
    2. the issuing agency complied with AS 25.27.085(b) .
  2. The procedures in or adopted under AS 25.27.085(c) and (d) apply to a person who is issued a subpoena described in (a) of this section.
  3. The child support services agency of this state shall enforce a subpoena described in (a) of this section and shall provide the opportunity for conference and issue any order under AS 25.27.085(c) and (d) on behalf of the issuing agency. AS 25.27.085(e) applies to an order under this subsection.
  4. The penalties provided in AS 25.27.085 apply regarding a subpoena described in (a) of this section.
  5. Nothing in this section limits the ability of a child support enforcement agency of another state to make other lawful requests for information in this state.

History. (§ 85 ch 87 SLA 1997)

Revisor’s notes. —

In 2004, in subsection (a), “this state’s child support enforcement agency” was changed to “this state’s child support services agency” and in subsection (c), “child support enforcement agency of this state” was changed to “child support services agency of this state” in accordance with § 12(a), ch. 107, SLA 2004.

Cross references. —

For immunity for certain actions relating to child support, see AS 09.65.250 .

Sec. 25.27.090. Reducing arrears to judgment. [Repealed, § 24 ch 126 SLA 1977. Formerly AS 47.23.090.]

Sec. 25.27.095. Agency exempt from execution.

Execution may not issue against money held in the fund established under AS 25.27.030 .

History. (§ 25 ch 126 SLA 1977)

Revisor’s notes. —

Formerly AS 47.23.095. Renumbered in 1990.

Sec. 25.27.100. All persons may use agency.

  1. The agency shall provide aid to any person due child support under the laws of this state upon application. The agency may, by regulation, impose a fee for services provided under this chapter.
  2. [Repealed, § 148 ch 87 SLA 1997.]

History. (§ 1 ch 251 SLA 1976; am § 26 ch 126 SLA 1977; am § 3 ch 96 SLA 1981; am § 9 ch 68 SLA 1988; am §§ 14, 15 ch 7 FSSLA 1994; am §§ 86, 148 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.100. Renumbered in 1990.

Legislative history reports. —

For Senate letter of intent relating to SB 117, from which ch. 68, SLA 1988 derives, see 1987 Senate Journal 729 — 730.

Sec. 25.27.103. Payments to agency.

An obligor shall make child support payments to the agency if the agency is enforcing a duty of child support under AS 25.25 or this chapter. The agency shall disburse that portion of a payment that exceeds the amount of money necessary to satisfy the obligor’s immediate duty of support in accordance with state and federal requirements. The agency may characterize a support payment physically received by the agency through wage withholding during the last five business days of the month as having been received on the first day of the next calendar month if the agency determines that the payment was made in the course of regular wage withholding intended for the next calendar month. The agency shall credit money disbursed under this section toward satisfaction of the obligor’s duty of support.

History. (§ 7 ch 118 SLA 1982; am § 87 ch 87 SLA 1997; am § 12 ch 54 SLA 2001)

Revisor’s notes. —

Enacted as AS 47.23.100(b). Renumbered as AS 47.23.103 in 1982. Renumbered again in 1990.

Sec. 25.27.105. Audit of collections.

Within 30 working days after receipt of a written request from an obligor, the obligor’s legal representative, the obligee, or the obligee’s legal representative, the agency shall provide an audit of all child support payments made by the obligor and received by the agency. The audit shall include the date and amount of each payment, the name of the obligee, and the total amount of arrearages of support past due and amount of unpaid penalties and interest imposed under AS 25.27.020(a)(2)(B) . The agency is required to provide only one audit each year for each obligee and obligor under this section.

History. (§ 8 ch 118 SLA 1982; am § 10 ch 68 SLA 1988; am § 88 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.105. Renumbered in 1990.

Sec. 25.27.107. Certification of arrears.

Within 30 days after receipt of a written request from an obligee or an obligee’s personal representative, the agency shall provide the obligee with a document that certifies whether or not the obligor was, at the end of the most recent calendar year,

  1. in arrears under the support order in an amount more than four times the monthly obligation under the order in cases where a payment schedule has not been established for payment of continuing support and accumulated arrears under the support order; or
  2. in arrears under a payment schedule in an amount more than four times the monthly obligation under the payment schedule if a payment schedule has been established for payment of continuing support and accumulated arrears under the support order.

History. (§ 27 ch 132 SLA 1998)

Sec. 25.27.110. [Renumbered as AS 25.27.900.]

Sec. 25.27.120. Obligor liable for public assistance furnished obligee.

  1. An obligor is liable to the state in the amount of assistance granted under AS 47.07 and AS 47.27 to a child to whom the obligor owes a duty of support except that, if a support order has been entered, the liability of the obligor for assistance granted under AS 47.27 may not exceed the amount of support provided for in the support order, and, if a medical order of support has been entered, the liability of the obligor for assistance granted under AS 47.07 may not exceed the amount of support provided for in the medical order of support.
  2. An obligor is liable to the state in the amount of the cost incurred if the state is maintaining a child to whom the obligor owes a duty of support in a foster home or institution, except that if a support order has been entered, or an agreement for payment of that cost executed between the obligor and the state, the liability of the obligor may not exceed the amount provided in the support order or agreement.
  3. Within 30 days after the agency knows the identity and address of an obligor who resides in the state and who is liable to the state under this section, the agency shall send written notification by certified mail to the obligor and the obligee of the obligor’s accruing liability and that the obligor shall make child support payments to the agency. The notice required under this subsection must be in clear, concise, and easily readable language. The notice may accompany other communications by the agency.
  4. If the agency fails to comply with (c) of this section, interest does not accrue on the liability to the state unless a support order or medical support order, as applicable, has been entered.
  5. The agency’s failure to comply with (c) of this section does not bar an action by the state to recover amounts owed by the obligor.

History. (§ 29 ch 126 SLA 1977; am § 1 ch 72 SLA 1990; am §§ 9, 10 ch 102 SLA 1994; am § 15 ch 107 SLA 1996; am § 89 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.120. Renumbered in 1990.

Cross references. —

For assignment of support rights by applicants for the Alaska Temporary Assistance program, see AS 47.27.040 .

Notes to Decisions

Independent right. —

This statute imposes a duty of support that runs directly from the obligor to the state, and is not derivative of any rights the custodian or the child might have to collect support. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Because the Child Support Enforcement Division’s (CSED) (now the Child Support Services Agency) right to recoupment of public assistance payments under this section was an independent right, the father could not defeat or diminish his direct liability to CSED by paying the mother directly. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Construction with other laws. —

AS 25.27.020(b) , which references the “immediate duty of support,” is inapplicable to a Child Support Enforcement Division (now the Child Support Services Agency) claim to recover public assistance. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Reimbursement for public assistance to child. —

Although a support order that does not require the noncustodial parent to make any child support payment is not a “support order” under subsection (a), the Child Support Enforcement Division (now the Child Support Services Agency) is entitled to reimbursement from the noncustodial parent for public assistance provided to the child in an amount determined by the state in accordance with a formula approved by the federal Secretary of Health and Human Services. State, Child Support Enf't Div. v. Gammons, 774 P.2d 181 (Alaska 1989).

In the Aid for Families with Dependent Children reimbursement context, the Child Support Enforcement Division (now the Child Support Services Agency) need not determine the “amount of money an obligor must pay to satisfy the immediate duty of support,” but only needs to look at the amount of public assistance paid and the amount of support provided for in the court order. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

The child support enforcement department’s (now the child support services agency’s) direct and derivative rights to recoupment of public assistance payments may yield to equitable considerations in certain situations. Department of Revenue, Child Support Enforcement Div. v. Pealatere, 996 P.2d 84 (Alaska 2000).

Father responsible for reimbursement to government. —

Denial of father’s motion to vacate the original child support order because his children no longer received support was appropriate because his duty of support included duty to reimburse other persons who had provided support to this children; thus, father was responsible as a matter of law for reimbursing the government for the public assistance benefits received by his children’s custodians for the children’s benefit during their minority. Skan v. Dep't of Revenue, Child Support Servs. Div., — P.3d — (Alaska Feb. 4, 2009), (memorandum opinion).

Child support offset. —

If a child support offset preserves the custodial parent’s means of support, the trial court may conclude that the offset is in the best interests of the child. Department of Revenue, Child Support Enforcement Div. v. Pealatere, 996 P.2d 84 (Alaska 2000).

Social security benefits. —

State could properly apply to become the payee for social security benefits for a minor who had been placed in foster care and later committed to the custody of the Department of Health and Social Services. C.G.A. v. State, 824 P.2d 1364 (Alaska 1992).

State had no right to order the mother to remit to the state social security benefits she had lawfully received as representative payee for her minor son, who had been placed in foster care and later committed to the custody of the Department of Health and Social Services. C.G.A. v. State, 824 P.2d 1364 (Alaska 1992).

Whether the state could apply a minor’s social security benefits towards the cost of his care at a state youth center was a question that was required to be submitted to the Social Security Agency for initial determination. C.G.A. v. State, 824 P.2d 1364 (Alaska 1992).

Double Payments. —

Since this section looks to the terms of the child support order, not to the terms of a side arrangement between the obligor and the obligee, any unauthorized direct lump sum payment made to the obligee does not constitute a double payment. Department of Revenue, Child Support Enforcement Div. v. Green, 983 P.2d 1249 (Alaska 1999).

Effect of consent to adoption. —

Father’s consent to adoption did not relieve him of his responsibility to support his child, and his duty of support encompassed a duty to reimburse the state for support of the child. Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Scope of court’s authority. —

It was error for the superior court to sua sponte engraft a prospective support provision onto an order granting summary judgment to the Child Support Enforcement Division’s (now the Child Support Services Agency’s) reimbursement claim. Department of Revenue, Child Support Enforcement Div. ex rel. Hawthorne v. Rios, 938 P.2d 1013 (Alaska 1997).

Because a child support waiver was not valid and enforceable until a court had reviewed and approved the substantive adequacy of the waiver under this rule, neither the mother’s letter to the father nor her withdrawal from the Alaska Child Support Enforcement Division’s (now the Child Support Services Agency’s) services modified the father’s court-ordered child support obligation. Paxton v. Gavlak, 100 P.3d 7 (Alaska 2004).

Applied in

Douglas v. State, Dep't of Revenue, 880 P.2d 113 (Alaska 1994).

Quoted in

Department of Revenue, Child Support Div. v. Carrick, 923 P.2d 803 (Alaska 1996).

Cited in

Department of Revenue, Child Support Enforcement Div. v. Leitch, 999 P.2d 782 (Alaska 2000); Ferguson v. Ferguson, 195 P.3d 127 (Alaska 2008).

Sec. 25.27.125. Accounting and disposition of federal receipts and agency collections.

  1. Federal incentive payments received by the state under 42 U.S.C. 658 shall be deposited in the general fund and the commissioner of administration shall separately account for the payments. The annual estimated balance in the account may be used by the legislature to make appropriations to the Department of Revenue to carry out the purposes of AS 25.27.020 .
  2. The annual estimated balance in the account maintained by the commissioner of administration under AS 37.05.142 may be used by the legislature to make appropriations to the Department of Health and Social Services to carry out the purposes of AS 47.14.100 47.14.130 and AS 47.27.

History. (§ 93 ch 138 SLA 1986; am § 11 ch 90 SLA 1991; am § 6 ch 59 SLA 1996; am § 16 ch 107 SLA 1996)

Revisor’s notes. —

Formerly AS 47.23.125. Renumbered in 1990.

Editor’s notes. —

42 U.S.C. 658, referred to in subsection (a), was repealed in 2001; current corresponding provisions may be found in section 658a.

Sec. 25.27.130. Subrogation of state.

  1. If the obligor is liable to the state under AS 25.27.120(a) or (b), the state is subrogated to the rights of the obligee to
    1. bring an action in the superior court seeking an order of support;
    2. proceed under AS 25.27.160 25.27.270 to establish a duty of support; or
    3. enforce by execution, in accordance with AS 25.27.230 25.27.270 , or otherwise, a support order entered in favor of the obligee.
  2. To establish or enforce an order of support, including, if applicable, a medical support order, based on the subrogation of the state, the agency is not limited to the amount of assistance being granted to the child.
  3. The recovery of any amount for which the obligor is liable that exceeds the total assistance granted under AS 47.07 and AS 47.27 shall be paid to the obligee.
  4. Except as provided in (f) of this section, if the obligee is not receiving assistance under AS 47.07 or AS 47.27 at the time the state recovers money in an action under this section, the recovery of any amount for which the obligor is liable shall be distributed to the obligee for support payments, including medical support payments, that have become due and unpaid since the termination of assistance under AS 47.07 or AS 47.27 under a support order in favor of the obligee.
  5. After payment to the obligee under (d) of this section, the state may retain an amount not to exceed the total unreimbursed assistance paid on behalf of the obligee under AS 47.07 or AS 47.27.
  6. Notwithstanding (d) of this section, the state shall, if required under federal law or regulations, distribute amounts recovered through offset of the obligor’s federal tax refund as past due support with first distribution to the state for unpaid support assigned to the state under AS 47.07.025 and AS 47.27.040 .

History. (§ 29 ch 126 SLA 1977; am § 5 ch 96 SLA 1981; am § 3 ch 75 SLA 1991; am § 13 ch 117 SLA 1992; am §§ 11 — 15 ch 102 SLA 1994; am §§ 17 — 20 ch 107 SLA 1996)

Revisor’s notes. —

Formerly AS 47.23.130. Renumbered in 1990.

Notes to Decisions

Applied in

Keating v. Traynor, 833 P.2d 695 (Alaska 1992).

Sec. 25.27.135. Limitation on actions to establish child support obligation.

If the same causes of action concerning a duty of child support are pending concurrently in court and before the agency, the second action filed may be abated upon the motion of a party or the agency. The court or the agency may award full costs and attorney fees to the party prevailing on the abatement motion.

History. (§ 11 ch 68 SLA 1988)

Revisor’s notes. —

Formerly AS 47.23.135. Renumbered in 1990.

Notes to Decisions

Quoted in

McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Sec. 25.27.140. Authority and procedures to administratively establish and enforce support obligation.

  1. If a support order has not been entered, the agency may establish paternity and a duty of support, which may include periodic payments of support, a medical support order, or both, utilizing the procedures prescribed in AS 25.27.160 25.27.220 and may enforce a duty of support utilizing the procedure prescribed in AS 25.27.230 25.27.270 . Action under this subsection may be undertaken upon application of an obligee, or at the agency’s own discretion if the obligor is liable to the state under AS 25.27.120(a) or (b).
  2. If a support order has been entered, the agency may enforce the support order utilizing the procedures prescribed in AS 25.27.062 , 25.27.150 , and 25.27.230 25.27.270 .
  3. Unless the agency is establishing only a medical support order, a decision of the agency determining a duty of support shall include an income withholding order as provided under AS 25.27.062 .

History. (§ 29 ch 126 SLA 1977; am § 6 ch 96 SLA 1981; am § 16 ch 7 FSSLA 1994; am § 13 ch 57 SLA 1995; am §§ 10, 11 ch 106 SLA 2000)

Revisor’s notes. —

Formerly AS 47.23.140. Renumbered in 1990. In 1990, “withholding order” was substituted for “assignment order” in subsection (c) to correct a drafting oversight in ch. 40, SLA 1985.

Administrative Code. —

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For paternity, see 15 AAC 125, art. 3.

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

For administrative actions under the uniform interstate family support act, see 15 AAC 125, art. 9.

Notes to Decisions

Orders establishing support arrearages. —

Subsection (a) of this section and AS 25.27.160(a) , 25.27.170(d) , and 25.27.900 (3) authorize the Child Support Enforcement Division (now the Child Support Services Agency) to enter orders establishing child support arrearages that have accrued prior to service of a “Notice of Finding and Financial Responsibility” even though no prior support order has been entered and no Aid to Families with Dependent Children payments have been made. Flanigin v. State, Dep't of Revenue, 946 P.2d 446 (Alaska 1997).

Father’s consent to adoption. —

Father’s consent to adoption did not relieve him of his responsibility to support his child, and his duty of support encompassed a duty to reimburse the state for support of the child. Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Laches. —

The defense of laches is not available in child support collection actions, since suits for monetary judgments for child support arrearages are legal rather than equitable in nature. Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Quoted in

Department of Revenue, Child Support Enforcement Div. v. Maxwell, 6 P.3d 733 (Alaska 2000).

Sec. 25.27.150. Initiation of administrative enforcement of orders; required notice.

  1. If an arrearage occurs under a support order being enforced by the agency for which immediate income withholding is not required under AS 25.27.062(a) or an application is made to the agency for withholding under AS 25.27.062(d) , the agency may execute an income withholding order without prior notice to the obligor. At the time of execution, the agency shall serve a notice of income withholding on the obligor. Notice under this subsection shall be served upon the obligor by certified mail to the obligor’s last known address, and service is complete when the notice is properly addressed, certified, and mailed.
  2. The notice must state the amount of the overdue support that is owed, if any, and the amount of income that will be withheld.
  3. The notice shall inform the obligor that income withholding has been ordered and of the procedures to follow if the obligor wishes to contest withholding on the grounds that the withholding is improper due to a mistake of fact. The notice must also inform the obligor of the information that was provided to the employer in the document that ordered the withholding.
  4. If the obligor requests a hearing, it shall be conducted under the department’s regulations for informal conferences and shall be held within 15 days of the date of the request. The hearing may only be held to determine if there is a mistake of fact that makes the income withholding order improper because the amount of current or overdue support is incorrect, the identity of the obligor is inaccurate, or, for initiated withholding based on AS 25.27.062(c)(3)(A) , the alleged facts regarding overdue payments or potential withdrawal of assets are incorrect. The order is not subject to any other legal defenses. It is not a defense to an income withholding order issued under AS 25.27.062(c)(2) that less than one full month’s payment is past due if at least one full month’s payment was past due on the date notice was served under this section.
  5. The conference officer shall inform the obligor of the informal conference decision either at the informal conference hearing or within 15 days after the hearing.
  6. If the conference officer determines that withholding will continue, the obligor may request a formal hearing as provided in the department’s regulations.

History. (§ 29 ch 126 SLA 1977; am § 10 ch 40 SLA 1985; am § 12 ch 68 SLA 1988; am § 17 ch 7 FSSLA 1994; am §§ 90 — 93 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.150. Renumbered in 1990.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Quoted in

Smith v. State, Dep't of Revenue, Child Support Enforcement Div., 790 P.2d 1352 (Alaska 1990); Hertz v. Hertz, 847 P.2d 71 (Alaska 1993).

Sec. 25.27.160. Initiation of administrative action to establish support duty; required notice.

  1. An action to establish a duty of support authorized under AS 25.27.140(a) is initiated by the agency serving on the alleged obligor a notice and finding of financial responsibility. The notice and finding served under this subsection shall be served personally or by registered, certified, or insured mail, return receipt requested, for restricted delivery only to the person to whom the notice and finding is directed or to the person authorized under federal regulation to receive that person’s restricted delivery mail.
  2. Except as provided in (c) of this section, the notice and finding of financial responsibility served under (a) of this section must state
    1. the sum or periodic payments for which the alleged obligor is found to be responsible under this chapter;
    2. the name of the alleged obligee and the obligee’s custodian;
    3. that the alleged obligor may appear and show cause in a hearing held by the agency why the finding is incorrect, should not be finally ordered, and should be modified or rescinded, because
      1. no duty of support is owed; or
      2. the amount of support found to be owed is incorrect;
    4. that, if the person served with the notice and finding of financial responsibility does not request a hearing within 30 days, the property and income of the person will be subject to execution under AS 25.27.062 and 25.27.230 25.27.270 in the amounts stated in the finding without further notice or hearing.
  3. If the agency is establishing only medical support, the notice and finding of financial responsibility must state
    1. that health care insurance shall be provided for the child to whom the duty of support is owed if health care insurance is available to the alleged obligor at a reasonable cost and that the alleged obligor and the other parent shall share equally the cost of the health care insurance and the costs of reasonable health care expenses not covered by insurance;
    2. the sum of periodic payments of cash medical support for which either parent or both parents are found to be responsible under this chapter;
    3. the name of the alleged obligee and the obligee’s custodian;
    4. that the alleged obligor may appear and show cause in a hearing held by the agency why the finding is incorrect, should not be finally ordered, and should be modified or rescinded, because
      1. no duty of support is owed;
      2. health care insurance for the child is not available to the alleged obligor at a reasonable cost;
      3. adequate health care is available to the child through the Indian Health Service or other insurance coverage; or
      4. there is good cause to allocate the costs of health insurance, cash medical support, or uninsured health care expenses unequally between the parents;
    5. that, if the person served with the notice under this subsection does not request a hearing within 30 days, a copy of the medical support order will be sent to the person’s employer under AS 25.27.063(b) without further notice or hearing for inclusion of the child in family health coverage if it is available through the person’s employer.

History. (§ 29 ch 126 SLA 1977; am § 18 ch 7 FSSLA 1994; am § 94 ch 87 SLA 1997; am §§ 12, 13 ch 106 SLA 2000; am § 5 ch 45 SLA 2009)

Revisor’s notes. —

Formerly AS 47.23.160. Renumbered in 1990.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For administrative establishment of child support orders, see 15 AAC 125, art. 2.

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Effect of amendments. —

The 2009 amendment, effective July 1, 2009, in (c), in the introductory language, substituted “only medical support” for “only a medical support order”; added (2), redesignated former (2), (3), and (4) as (3), (4), and (5), and in (4)(D), added “cash medical support,” following “costs of health insurance”; made stylistic changes.

Notes to Decisions

Entry of orders establishing arrearages. —

Subsection (a) of this section and AS 25.27.140(a) , 25.27.170(d) , and 25.27.900 (3) authorize the Child Support Enforcement Division (now the Child Support Services Agency) to enter orders establishing child support arrearages that have accrued prior to service of a “Notice of Finding and Financial Responsibility” even though no prior support order has been entered and no Aid to Families with Dependent Children payments have been made. Flanigin v. State, Dep't of Revenue, 946 P.2d 446 (Alaska 1997).

New actions. —

This statute expressly requires the Child Support Enforcement Division (CSED) (now the Child Support Services Agency (CSSA)) to initiate its administrative establishment proceeding to establish a duty of support by issuing a notice and finding of financial responsibility which entitles the recipient to a hearing on the issue of liability, and thus provides that CSED (CSSA) can only exercise this administrative power by commencing a new “action.” Koss v. Koss, 981 P.2d 106 (Alaska 1999).

Statements not equivalent of support orders. —

Where a child support order had lapsed by its own terms, and the Child Support Enforcement Division (now the Child Support Services Agency) had not administratively issued a new support order, monthly statements issued by CSED (CSSA) to obligor parent reflecting amount due established by prior order were not the equivalent of support orders. Benson v. Benson, 977 P.2d 88 (Alaska 1999).

Laches. —

The equitable defense of laches is not applicable to child support collection actions because the dispute is legal rather than equitable in nature. Benson v. Benson, 977 P.2d 88 (Alaska 1999).

Waiver and estoppel. —

In a child support collection action, where child support arrearages are owed directly to the custodial parent, the defenses of waiver and estoppel are inapplicable. Benson v. Benson, 977 P.2d 88 (Alaska 1999).

Cited in

Agen v. State, Dep't of Revenue, 945 P.2d 1215 (Alaska 1997).

Sec. 25.27.165. Determination of paternity in an administrative proceeding.

  1. Upon application from a mother, custodian, putative father, or legal custodian of a child, or from a state, the agency may institute administrative proceedings to determine the paternity of a child born out of wedlock.
  2. In order to initiate a paternity proceeding administratively, the agency shall serve a mother and putative father, as appropriate, with a notice of paternity and financial responsibility. The notice shall be served personally as set out in Rule 4(d), Alaska Rules of Civil Procedure, or by registered, certified, or insured mail, return receipt requested, for restricted delivery only to the person to whom the notice is directed or to the person authorized under federal law to receive that person’s restricted delivery mail. The notice must be accompanied by
    1. an administrative order requiring that the mother, child, and putative father submit to genetic testing to be arranged by the agency and stating that a party may provide information to show good cause not to order the testing;
    2. an administrative order requiring the putative father to provide financial information, as defined by the agency in regulation, within 30 days after service of the notice; all financial information provided to the agency under an order under this paragraph shall be held confidential by the agency, according to any applicable regulations; and
    3. a notice of right to informal conference, to be held within 20 days after receipt of an admission of paternity or service upon the parties of genetic test results.
  3. A person served with a notice of paternity and financial responsibility and accompanying orders under (b) of this section shall file a response, admitting or denying paternity and providing the required financial information, within 30 days after the date of service of the notice of paternity and financial responsibility. If the putative father admits paternity, the agency shall issue, within 20 days after the admission of paternity, a decision establishing paternity. If the putative father denies paternity, the putative father shall submit to genetic testing, as provided in (b) of this section, within 45 days after the date of service of the notice of paternity and financial responsibility. If the putative father fails to file a response or fails to comply with an accompanying order within the time and in the manner required in this subsection, the agency may issue a decision by default establishing paternity and financial responsibility, except that, if the proceeding was instituted at the request of the putative father, the agency shall dismiss the proceeding without prejudice.
  4. Upon receipt of genetic test results, the agency shall serve on the putative father notice of the test results and of the date for the informal conference. Service of the notice shall be made by first class mail. If the genetic test results are negative under the standard set in AS 25.20.050(d) , the agency shall issue a finding of nonpaternity within 20 days after the agency’s receipt of the test results. If the genetic test results are positive under the standard set in AS 25.20.050(d) , the agency shall issue an informal conference decision within 20 days after the agency’s receipt of the test results. Upon request and advance payment by a party, the agency shall order additional genetic tests. If the second genetic test results contradict the first genetic test results, the agency shall provide copies of the second genetic test results to the parties and conduct another informal conference. The agency shall issue the second informal conference decision within 20 days after the agency’s receipt of the second genetic test results.
  5. If the agency issues a decision establishing paternity under (d) of this section, the putative father is entitled to a formal hearing if a written request for hearing is served on the agency by certified mail, return receipt requested, within 30 days after the date of service of the agency’s decision.
  6. If a request for a formal hearing is made under (e) of this section, an execution under AS 25.27.062 and 25.27.230 25.27.270 may not be stayed unless the putative father posts security or a bond in the amount of child support that would have been due under the informal conference decision pending the decision on the formal hearing. If no request for a formal hearing is made under (e) of this section, the informal conference decision establishing paternity is final.
  7. If a request for a formal hearing is made under (e) of this section, the hearing officer shall consider the evidence applying the standards set in AS 25.20.050(d) .
  8. If a putative father who requests a formal hearing under (e) of this section fails to appear at the formal hearing, the hearing officer shall enter a final decision establishing paternity.
  9. The agency may recover any costs it pays for genetic tests required by this section from the putative father unless the testing establishes that the individual is not the father, except that costs may not be recovered from a person who is a recipient of cash assistance or self-sufficiency services under AS 47.27 (Alaska temporary assistance program). For purposes of this subsection, a person who receives a diversion payment and self-sufficiency services under AS 47.27.026 is not considered to be a recipient of cash assistance or self-sufficiency services under AS 47.27.
  10. A decision establishing paternity or an admission of paternity under this section must include the social security numbers, if ascertainable, of the father, mother, and the child.
  11. Notwithstanding any other provision of this section, if the agency determines, after considering the best interests of the child, that good cause exists not to order genetic testing under this section, it shall, without ordering the genetic testing and as the agency determines appropriate in the best interests of the child,
    1. end the administrative proceedings under this section without making a determination of paternity; or
    2. after a hearing provided for under regulations adopted by the agency, enter a final decision regarding paternity.

History. (§ 14 ch 57 SLA 1995; am § 21 ch 107 SLA 1996; am §§ 95 —99 ch 87 SLA 1997; am §§ 28, 29 ch 132 SLA 1998; am § 2 ch 69 SLA 2002)

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For paternity, see 15 AAC 125, art. 3.

Sec. 25.27.166. Disestablishment of paternity.

  1. The agency shall, by regulation, establish procedures and standards for the disestablishment of paternity of a child whose paternity was established in this state other than by court order if the paternity was not established by
    1. genetic test results that met the standard set out in AS 25.20.050(d) at the time the test was performed; or
    2. an acknowledgment of paternity under AS 25.20.050 or an admission of paternity under AS 25.27.165 .
  2. The agency’s standards and procedures under (a) of this section must
    1. allow a person to petition the agency to disestablish paternity only once per child;
    2. allow a petition to disestablish paternity to be brought only within three years after the child’s birth or three years after the petitioner knew or should have known of the father’s putative paternity of the child, whichever is later; and
    3. provide standards and notice and hearing procedures that are equivalent to those used for establishment of paternity under AS 25.27.165 .
  3. The agency shall disestablish paternity under this section if genetic test results are negative under the standard set out in AS 25.20.050(d) and if the other standards established in its regulations are met.
  4. If a decision under this section disestablishes paternity, the petitioner’s child support obligation or liability for public assistance under AS 25.27.120 is modified retroactively to extinguish arrearages for child support and accrued liability for public assistance based on the alleged paternity that is disestablished under this section. This subsection may be implemented only to the extent not prohibited by federal law.
  5. The costs of genetic testing under this section shall be assessed against the petitioner if paternity is not disestablished. If paternity is disestablished under this section, the costs of genetic testing shall be assessed against
    1. the individual to whom the petitioner paid or owed child support payments for the child for whom paternity was disestablished; or
    2. the agency if there is no individual who meets the description in (1) of this subsection.

History. (§ 14 ch 57 SLA 1995; am § 100 ch 87 SLA 1997)

Cross references. —

For effect of (d) of this section on Alaska Rule of Civil Procedure 90.3, see §§ 23 and 25, ch. 57, SLA 1995.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For administrative establishment of child support orders, see 15 AAC 125, art. 2.

For paternity, see 15 AAC 125, art. 3.

Notes to Decisions

Applicability. —

Alaska R. Civ. P. 90.3(h)(2) prohibited a father's motion to modify his child support obligation to effectively extinguish his arrearage accrued under an earlier support order where he had not sought to disestablish his paternity, so AS 25.27.166(d) did not apply. Burke v. Burke, — P.3d — (Alaska July 22, 2020) (memorandum decision).

Authority to disestablish. —

This section did not provide the Child Support Enforcement Division (now the Child Support Services Agency) with authority to disestablish paternity where the child was born more than three years before the effective date of the section, and it was more than three years since the father was on notice of his putative paternity. Sielak v. State, 958 P.2d 438 (Alaska 1998).

Effect of disestablishment on child support arrearages. —

A judicial disestablishment order, unlike an administrative disestablishment determination, does not extinguish child support arrearages; the relief required following judicial disestablishment of paternity is governed not by AS 25.27.166 , but by Alaska Civil Rule 60(b). Ferguson v. Department of Revenue, Child Support Enforcement Div. ex rel. P.G., 977 P.2d 95 (Alaska 1999).

Retroactive modification of child support arrearages is allowed in certain circumstances under this section, which serves to amend Alaska R. Civ. P. 90.3. Lawson v. Lawson, 108 P.3d 883 (Alaska 2005).

Child listed as son after disestablishment. —

Where appellant claimed that the youngest child born during his marriage was not his biological son, but had voluntarily filed documents with the superior court listing the son as his child after paternity was disestablished, the court did not err by including the son in its calculation of his monthly child support obligation. Ray v. Ray, 115 P.3d 573 (Alaska 2005).

Cited in

Wright v. Wright, 22 P.3d 875 (Alaska 2001); State v. Wallace, 119 P.3d 992 (Alaska 2005); Webb v. Dept. of Revenue ex rel. Webb, 120 P.3d 197 (Alaska 2005); Rosen v. Rosen, 167 P.3d 692 (Alaska 2007); Swaney v. Granger, 297 P.3d 132 (Alaska 2013).

Sec. 25.27.167. Contempt of order for genetic testing.

  1. If a person who is located in this state fails to comply with an order for genetic testing issued by the agency in this state, or the tribunal of another state, the agency in this state may certify the facts to the superior court of this state.
  2. Upon certification under (a) of this section, the court shall issue an order directing the person to appear and show cause why the person should not be punished for contempt. The order and a copy of the certified statement shall be served on the person in the manner required for service of court orders to show cause.
  3. After service under (b) of this section, the court has jurisdiction of the matter brought under this section.
  4. The law of this state applicable to contempt of a court order applies to a proceeding for contempt of an order for genetic testing brought under this section.

History. (§ 30 ch 132 SLA 1998)

Cross references. —

For purpose and findings provisions related to enactment of this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Sec. 25.27.170. Hearings in administrative action to establish support duty.

  1. A person served with a notice and finding of financial responsibility is entitled to a hearing if a request in writing for a hearing is served on the agency by registered mail, return receipt requested, within 30 days of the date of service of the notice of financial responsibility.
  2. If a request for a formal hearing under (a) of this section is made, the execution under AS 25.27.062 and 25.27.230 25.27.270 may not be stayed unless the obligor posts security or a bond in the amount of child support that would have been due under the finding of financial responsibility pending the decision on the hearing. If no request for a hearing is made, the finding of responsibility is final at the expiration of the 30-day period.
  3. If a hearing is requested, it shall be held within 30 days of the date of service of the request for hearing on the agency.
  4. Except as provided in (g) of this section, the hearing officer shall determine the amount of periodic payments necessary to satisfy the past, present, and future liability of the alleged obligor under AS 25.27.120 , if any, and under any duty of support imposable under the law. The amount of periodic payments determined under this subsection is not limited by the amount of any public assistance payment made to or for the benefit of the child.
  5. The hearing officer shall consider the following in making a determination under (d) of this section:
    1. the needs of the alleged obligee, disregarding the income or assets of the custodian of the alleged obligee;
    2. the amount of the alleged obligor’s liability to the state under AS 25.27.120 if any;
    3. the intent of the legislature that children be supported as much as possible by their natural parents;
    4. the ability of the alleged obligor to pay.
  6. Except as provided in (g) of this section, if the alleged obligor requesting the hearing fails to appear at the hearing, the hearing officer shall enter a decision declaring the property and income of the alleged obligor subject to execution under AS 25.27.062 and 25.27.230 25.27.270 in the amounts stated in the notice and finding of financial responsibility.
  7. If the agency is establishing only a medical support order, the hearing officer shall enter a decision about the parents’ respective responsibilities for the child’s health care expenses that complies with the requirements of AS 25.27.060(c) .

History. (§ 29 ch 126 SLA 1977; am § 7 ch 96 SLA 1981; am § 6 ch 72 SLA 1986; am §§ 19 — 21 ch 7 FSSLA 1994; am §§ 14 — 16 ch 106 SLA 2000)

Revisor’s notes. —

Formerly AS 47.23.170. Renumbered in 1990.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For administrative establishment of child support orders, see 15 AAC 125, art. 2.

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

Notes to Decisions

Orders establishing child support arrearages. —

Subsection (d) of this section and AS 25.27.140(a) , 25.27.160(a) , and 25.27.900 (3) authorize the Child Support Enforcement Division (now the Child Support Services Agency) to enter orders establishing child support arrearages that have accrued prior to service of a “Notice of Finding and Financial Responsibility” even though no prior support order has been entered and no Aid to Families with Dependent Children payments have been made. Flanigin v. State, Dep't of Revenue, 946 P.2d 446 (Alaska 1997).

Arrearages were improperly accumulated against the presumptive father where he was not accorded due process of law by CSED (CSSA) when it entered a child support order and established child support arrears against him without giving him notice and an opportunity to rebut the presumption of paternity. Department of Revenue, Child Support Enforcement Div. v. Maxwell, 6 P.3d 733 (Alaska 2000).

Hearing examiner properly resolved prison inmate’s claim regarding his child support obligation by motion for a summary judgment, where there were no material facts in dispute, and the hearing on the motion afforded the inmate a fair opportunity to contest legal issues raised by his appeal. Smith v. State, Dep't of Revenue, Child Support Enforcement Div., 790 P.2d 1352 (Alaska 1990).

Collection of arrearages denied. —

Where defendant acknowledged his paternity of the child because he erroneously believed he was her father, and nine years later pursued an administrative appeal and disestablished his paternity in superior court, because CSED’s (CSSA’s) support order remained open to review, and because he rebutted the presumption of paternity created by his legal acknowledgment at his first formal opportunity, the superior court prohibited CSED (CSSA) from collecting arrears. Department of Revenue, Child Support Enforcement Div. v. Button, 7 P.3d 74 (Alaska 2000).

Sec. 25.27.180. Administrative findings and decision.

  1. Within 20 days after the date of the hearing, the hearing officer shall adopt findings and a decision determining whether paternity is established and whether a duty of support exists, and, if a duty of support is found, the decision must specify
    1. unless a medical support order only is being established, the amount of periodic payments or sum for which the alleged obligor is found to be responsible; and
    2. the parents’ respective responsibilities for the costs of the child’s health care; this medical support order must be in compliance with AS 25.27.060(c) .
  2. Liability to the state under AS 25.27.120 is limited to the amount for which the obligor is found to be responsible under (a) of this section.
  3. A decision regarding support rendered under (a) of this section is modified to the extent that a subsequent order, judgment, or decree of a superior court is inconsistent with the decision entered under (a) of this section.

History. (§ 29 ch 126 SLA 1977; am § 22 ch 7 FSSLA 1994; am §§ 15, 16 ch 57 SLA 1995; am § 17 ch 106 SLA 2000)

Revisor’s notes. —

Formerly AS 47.23.180. Renumbered in 1990.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

Sec. 25.27.190. Modification of administrative finding or decision.

  1. Unless a support order has been entered by a court and except as provided in AS 25.25, the obligor, or the obligee or the obligee’s custodian, may petition the agency or its designee for a modification of the administrative finding or decision of responsibility previously entered with regard to future periodic support payments. In addition, the agency may initiate a modification and grant a hearing under (c) — (e) of this section.
  2. The agency shall grant a hearing upon a petition made under (a) of this section if affidavits submitted with the petition make a showing of good cause and material change in circumstances sufficient to justify action under (e) of this section.
  3. If a hearing is granted, the agency shall serve a notice of hearing together with a copy of any petition and affidavits submitted on the obligee or the obligee’s custodian and the obligor personally or by registered, certified, or insured mail, return receipt requested, for restricted delivery only to the person to whom the notice is directed or to the person authorized under federal regulation to receive that person’s restricted delivery mail.
  4. A hearing shall be set not less than 15 nor more than 30 days from the date of mailing of notice of hearing, unless extended for good cause.
  5. Modification or termination of future periodic support payments may be ordered upon a showing of good cause and material change in circumstances. The adoption or enactment of guidelines or a significant amendment to guidelines for determining child support is a material change in circumstances, if the guidelines are relevant to the petition. As necessary to comply with 42 U.S.C. 666, a periodic modification of child support may be made without a showing of a material change in circumstances if the child support order being modified on the periodic basis has not been modified or adjusted during the three years preceding the periodic modification.

History. (§ 29 ch 126 SLA 1977; am § 13 ch 68 SLA 1988; am §§ 101, 102 ch 87 SLA 1997; am § 16 ch 108 SLA 2004)

Revisor’s notes. —

Formerly AS 47.23.190. Renumbered in 1990.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

For licensing actions, see 15 AAC 125, art. 7.

Sec. 25.27.193. Periodic review or adjustment of support orders.

As necessary to comply with 42 U.S.C. 666, the agency, by regulation, shall provide procedures and standards for the modification, through a three-year cycle of review or adjustment, of a support order. Regulations adopted under this section must include procedures for periodic notice of the right to request review, procedures for hearings, and standards for adjustments regarding future periodic support payments. A modification under this section may be made without a showing of a material change in circumstances.

History. (§ 103 ch 87 SLA 1997; am § 6 ch 45 SLA 2009)

Cross references. —

For modification of child support order by the court, see AS 25.24.170 .

Administrative Code. —

For review and adjustment of support obligations, see 15 AAC 125, art. 4.

For licensing actions, see 15 AAC 125, art. 7.

Effect of amendments. —

The 2009 amendment, effective July 1, 2009, substituted “a three-year cycle of” for “periodic” preceding “review or adjustment”.

Sec. 25.27.194. Processing time for modification of support orders.

The agency shall use its best efforts to process modifications of support orders under AS 25.27.190 and 25.27.193 in a manner that will result in the same average processing time for modifications that increase obligors’ responsibilities as for modifications that decrease obligors’ responsibilities.

History. (§ 13 ch 99 SLA 1998)

Legislative history reports. —

For governor’s transmittal letter concerning the enactment of this section by ch. 99, SLA 1998 (SCS CSHB 375(JUD)), see 1998 House Journal 2201.

Sec. 25.27.195. Relief from administrative order.

  1. A clerical mistake in an administrative order issued by the agency or an error arising from an oversight or omission by the agency may be corrected by the agency at any time.
  2. The agency may, at any time, vacate an administrative support order issued by the agency under AS 25.27.160 that was based on a default amount rather than on the obligor’s actual ability to pay.
  3. Before an order may be corrected or vacated under (a) or (b) of this section, the agency must send notice of the intended action to the obligor and the custodian and provide an adequate opportunity for the obligor and custodian to be heard on the issue.
  4. If an order is vacated under (b) of this section, the agency may at the same time issue a new order establishing a support amount, based on information about the obligor’s income or on the Alaska average wage standard, for periods of time covered by the previous order. Upon issuance of the new order, the agency may adjust the obligor’s account to reflect the support amounts established in the new order. In no case may the agency adjust the obligor’s account below zero.

History. (§ 22 ch 107 SLA 1996; am §§ 7, 8 ch 45 SLA 2009)

Cross references. —

For effect of subsection (d) on Alaska Rule of Civil Procedure 90.3, see §§ 50 and 51, ch. 107, SLA 1996 in the Temporary and Special Acts.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

For administrative establishment of child support orders, see 15 AAC 125, art. 2.

For licensing actions, see 15 AAC 125, art. 7.

Effect of amendments. —

The 2009 amendment, effective July 1, 2009, in (a), deleted “on the motion of an obligor” at the end of the subsection; in (b), substituted “The” for “Upon the motion of an obligor, the” at the beginning of the subsection.

Notes to Decisions

Applicability. —

AS 25.27.195(b) did not apply to a father's motion to modify his child support obligation to effectively extinguish his arrearage accrued under an earlier support order where the challenged support order was issued by a court on a default basis, not an administrative order, and neither the statute nor case law allowed a court to retroactively modify child support arrears. Burke v. Burke, — P.3d — (Alaska July 22, 2020) (memorandum decision).

Stated in

Nunley v. State, 99 P.3d 7 (Alaska 2004).

Cited in

Hendren v. State, Dep't of Revenue, 957 P.2d 1350 (Alaska 1998).

Sec. 25.27.200. Use of standards in administrative determinations of support amounts.

In making its findings under AS 25.27.160 and in establishing and modifying amounts of periodic support payments under AS 25.27.180 and 25.27.190 , the agency shall consider the standards adopted by regulation under AS 25.27.020 and any standards for determination of support payments used by the superior court of the district of residence of the obligor.

History. (§ 29 ch 126 SLA 1977)

Revisor’s notes. —

Formerly AS 47.23.200. Renumbered in 1990.

Cross references. —

For determination of amount of child support, see Rule 90.3, Alaska Rules of Civil Procedure, adopted for use by child support services agency at 15 AAC 125.010.

Administrative Code. —

For calculation of child support awards in administrative establishment or review proceedings, see 15 AAC 125, art. 1.

Sec. 25.27.210. Judicial review of administrative decisions and actions.

  1. Judicial review by the superior court of a final administrative decision establishing or disestablishing paternity and establishing or modifying a duty of support or amounts of support due may be obtained by filing a notice of appeal in accordance with the applicable rules of court governing appeals in civil matters. A notice of appeal shall be filed within 30 days after the decision.
  2. The complete record of the proceedings, or the parts of it that the appellant designates, shall be prepared by the agency.  A copy shall be delivered to all parties participating in the appeal.  The original shall be filed in the superior court within 30 days after the appellant pays the estimated cost of preparing the complete or designated record or files a corporate surety bond equal to the estimated cost.
  3. The complete record includes
    1. the notice and finding of financial responsibility, the notice of paternity and financial responsibility, or the notice of and petition for an action disestablishing paternity, as applicable;
    2. the request for a hearing;
    3. the decision of the hearing officer;
    4. the exhibits admitted or rejected;
    5. the written evidence;
    6. all other documents in the case, including decisions of the agency.
  4. Upon order of the superior court, appeals may be taken on the original record or parts of it.  The record may be typewritten or duplicated by any standard process.  Analogous rules of court governing appeals in civil matters shall be followed when this chapter is silent, and when not in conflict with this chapter.
  5. The superior court may enjoin agency action in excess of constitutional or statutory authority at any stage of an agency proceeding.  If agency action is unlawfully or unreasonably withheld, the superior court may compel the agency to initiate action.

History. (§ 29 ch 126 SLA 1977; am §§ 17, 18 ch 57 SLA 1995)

Revisor’s notes. —

Formerly AS 47.23.210. Renumbered in 1990.

Cross references. —

For applicable rules of court, see Appellate Rules 601-611.

Notes to Decisions

Action against agency for disestablishment of paternity. —

The Child Support Enforcement Division (now the Child Support Services Agency) was a proper defendant in an action for disestablishment of paternity brought by the “legal” father of child against his ex-wife and the agency. Department of Revenue, Child Support Enforcement Div. v. Allsop, 902 P.2d 790 (Alaska 1995).

Motion to allow late appeal. —

Although unrefuted evidence showed that appellant father’s second attorney had actual notice of a new child support order, supplemental information that was added to the record — a motion to stay enforcement that was filed within the appeal period under Alaska R. App. P. 602(a)(2) and this section — showed that the attorney may not have been aware of the order and was confused about the administrative remand proceedings. Dobrova v. State, 171 P.3d 152 (Alaska 2007), overruled in part, Shea v. Dep't of Admin, Div. of Ret. and Ben., 204 P.3d 1023 (Alaska 2009).

Denial of possible administrative appeal appropriate. —

Because there was no recent adverse administrative decision from which father might conceivably have been appealing, intervention by superior court would not likely have allowed father to correct his failings, and superior court addressed what seemed to be the merits of father’s claim in its refusal to order retroactive modification of his support obligation; supreme court was not “left with a definite and firm conviction, after reviewing the whole record, that trial court erred in its ruling,” and therefore did not abuse discretion in denying father’s possible administrative appeal rather than attempting to remedy it. Skan v. Dep't of Revenue, Child Support Servs. Div., — P.3d — (Alaska Feb. 4, 2009), (memorandum opinion).

Quoted in

Department of Revenue, Child Support Enforcement Div. v. A.H., 880 P.2d 1048 (Alaska 1994); Brotherton v. Warner, 240 P.3d 1225 (Alaska 2010).

Sec. 25.27.220. Procedure in judicial reviews.

  1. An appeal shall be heard by the superior court sitting without a jury.
  2. Inquiry in an appeal extends to the following questions: (1) whether the agency has proceeded without or in excess of jurisdiction; (2) whether there was a fair hearing; and (3) whether there was a prejudicial abuse of discretion.  Abuse of discretion is established if the agency has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.
  3. The court may exercise its independent judgment on the evidence.  If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by
    1. the weight of the evidence; or
    2. substantial evidence in the light of the whole record.
  4. The court may augment the agency record in whole or in part, or hold a hearing de novo.  If the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing, the court may
    1. enter judgment as provided in (e) of this section and remand the case to be reconsidered in the light of that evidence; or
    2. admit the evidence at the appellate hearing without remanding the case.
  5. The court shall enter judgment setting aside, modifying, remanding, or affirming the decision, without limiting or controlling in any way the discretion legally vested in the agency.
  6. The court in which proceedings under this section are started may stay the operation of the decision until
    1. the court enters judgment;
    2. a notice of further appeal from the judgment is filed; or
    3. the time for filing the notice of appeal expires.
  7. A stay may not be imposed or continued if the court is satisfied that it is against the public interest.
  8. If further appeal is taken, the supreme court may, in its discretion, stay the superior court judgment or agency order.

History. (§ 29 ch 126 SLA 1977)

Revisor’s notes. —

Formerly AS 47.23.220. Renumbered in 1990.

Cross references. —

For court rule providing that Rules of Appellate Procedure supersede all statutory provisions on the same subject, see Appellate Rule 607.

Notes to Decisions

Cited in

McDonald v. Trihub, 173 P.3d 416 (Alaska 2007).

Sec. 25.27.225. Support payment obligations as judgments.

A support order ordering a noncustodial parent obligor to make periodic support payments to the custodian of a child is a judgment that becomes vested when each payment becomes due and unpaid. The custodian of the child, or the agency on behalf of that person, may take legal action under AS 25.27.226 to establish a judgment for support payments ordered by a court of this state that are delinquent.

History. (§ 9 ch 144 SLA 1984; am § 7 ch 72 SLA 1986)

Revisor’s notes. —

Formerly AS 47.23.225. Renumbered in 1990.

Cross references. —

For legislative findings and purpose in enacting AS 25.27.225 25.27.228 , see § 1, ch. 144, SLA 1984 in the Temporary and Special Acts.

Notes to Decisions

Determing when relief is available from a judgment. —

Since child support orders are treated like judgments, trial courts may look to Alaska Civ. R. 60(b) for guidance in determining when relief is available. Department of Revenue, Child Support Enforcement Div. v. Maxwell, 6 P.3d 733 (Alaska 2000).

Modification of arrearage payment or payment schedule not permitted. —

Because the outstanding arrears were due and unpaid, they had vested and the superior court did not have the power to modify the payments or create a payment schedule. Setting up a payment schedule for arrears in lieu of judgment circumvents the requirements of AS 25.27.226 . Harrison v. Lyman, — P.3d — (Alaska July 25, 2012), (memorandum opinion).

Death of mother did not relieve father of obligation to pay arrearages. —

Denial of father’s motion to vacate the original child support order because his children no longer received support was appropriate because mother’s death did not relieve father of his obligation to pay arrearages owed to the children’s grandmother; although father’s obligation to pay ongoing monthly child support ended when both of his children were emancipated, the emancipations did not end father’s obligation to pay off the arrearage he had accrued. Skan v. Dep't of Revenue, Child Support Servs. Div., — P.3d — (Alaska Feb. 4, 2009), (memorandum opinion).

Quoted in

Department of Revenue, Child Support Enforcement Div. v. Demers, 915 P.2d 1219 (Alaska 1996); Dep't of Revenue, Child Support Enforcement Div. ex rel. Gerke v. Gerke, 942 P.2d 423 (Alaska 1997).

Stated in

Ferguson v. Department of Revenue, Child Support Enforcement Div. ex rel. P.G., 977 P.2d 95 (Alaska 1999).

Cited in

Heustess v. Kelley-Heustess, 259 P.3d 462 (Alaska 2011).

Sec. 25.27.226. Collection of past due support.

To collect the payment due, the custodian of a child, or the agency on behalf of that person, shall file with the court (1) a motion requesting establishment of a judgment; (2) an affidavit that states that one or more payments of support are 30 or more days past due and that specifies the amounts past due and the dates they became past due; and (3) notice of the obligor’s right to respond. Service on the obligor must be in the manner provided in AS 25.27.265 . The child’s custodian, or the agency on behalf of the custodian, shall file with the court proof of service of the petition, affidavit, and notice. The obligor shall respond no later than 15 days after service by filing an affidavit with the court. If the obligor’s affidavit states that the obligor has paid any of the amounts claimed to be delinquent, describes in detail the method of payment or offers any other defense to the petition, then the obligor is entitled to a hearing. After the hearing, if any, the court shall enter a judgment for the amount of money owed. If the obligor does not file an affidavit under this section, the court shall enter a default judgment against the obligor.

History. (§ 9 ch 144 SLA 1984; am § 11 ch 40 SLA 1985; am § 8 ch 72 SLA 1986)

Revisor’s notes. —

Formerly AS 47.23.226. Renumbered in 1990.

Notes to Decisions

Applicability. —

AS 09.35.020 and Civil Rule 69(d) did not apply to administrative collection actions of the child support enforcement division (now the Child Support Services Agency) pursuant to this section. Dep't of Revenue, Child Support Enforcement Div. ex rel. Gerke v. Gerke, 942 P.2d 423 (Alaska 1997).

Construction with Rules. —

Where a presumed father did not provide any points or authorities, and did not make clear the defenses he desired to assert in opposition to Child Support Enforcement Division (now the Child Support Services Agency) collection efforts, but where this section seemingly created an automatic right to a hearing upon the filing of an affidavit offering “any” defense other than payment, the superior court had discretion to require, before conducting a hearing, that the father offer prima facie evidence of a successful defense under standards set out in Civil Rule 77(c)(2). Kilpper v. Department of Revenue, Child Support Enforcement Div., 983 P.2d 729 (Alaska 1999).

Without express notice of the superior court’s intent to hold the plaintiff to the standards of Civil Rule 77(c)(2), a presumed father reasonably might have taken the language of this section at face value and assumed from its literal language that his affidavit’s vague offer of defenses would suffice to give him a hearing at which he would be able to flesh out his claims, and remand was required to give him an additional opportunity to assert his defenses with sufficient specificity to meet the requirements of the Rule. Kilpper v. Department of Revenue, Child Support Enforcement Div., 983 P.2d 729 (Alaska 1999).

Action under section not “new” action. —

When the child support enforcement division (now the Child Support Services Agency) moved to establish a judgment for support arrearages pursuant to this section, the agency did not initiate a new action to establish the noncustodial parent’s liability. Rather, the child support enforcement division (now the Child Support Services Agency) sought to collect a valid, unsatisfied domestic judgment, which it already possessed, for a specified sum of money. In this sense, although termed a motion requesting establishment of a judgment under this section, each proceeding was in aid of enforcement of a judgment already in existence. State, Dep't of Revenue ex rel. Inman v. Dean, 902 P.2d 1321 (Alaska 1995).

Meaningful opportunity to present defenses. —

Where the noncustodial parent was apparently available to testify by telephone and given the desirability of allowing him a meaningful opportunity to present his defenses in custodial parent’s motion for past due child support, the trial court abused its discretion by refusing to allow the noncustodial parent to testify, though he did not file a motion under Civil Rule 99 to participate telephonically. In a proceeding to collect past due child support, some procedural safeguards are reasonably eased to ensure that the child’s welfare is protected. Carvalho v. Carvalho, 838 P.2d 259 (Alaska 1992).

Notice and opportunity to rebut presumption of paternity not given. —

Arrearages were improperly accumulated against the presumptive father where he was not accorded due process of law by CSED (CSSA) when it entered a child support order and established child support arrears against him without giving him notice and an opportunity to rebut the presumption of paternity. Department of Revenue, Child Support Enforcement Div. v. Maxwell, 6 P.3d 733 (Alaska 2000).

Condition on execution of judgment not authorized. —

The superior court lacked authority to condition execution of judgment on a valid grant for child support arrearages. Department of Revenue, Child Support Enforcement Div. v. Demers, 915 P.2d 1219 (Alaska 1996).

Because the mother filed a motion requesting establishment of a judgment, and an affidavit stating that more than one payment of child support was over 30 days past due, she complied with statutory requirements. Despite the unusual circumstances surrounding father’s incurring the arrearages, being deployed abroad and not being given a sum certain until return from deployment, Alaska law is clear, and judgment for the amount owed was mandatory. Harrison v. Lyman, — P.3d — (Alaska July 25, 2012) (memorandum decision).

Modification of arrearage payment or payment schedule not permitted. —

Because the outstanding arrears were due and unpaid, they had vested under AS 25.27.225 , and the superior court did not have the power to modify the payment or create a payment schedule. Setting up a payment schedule for arrears in lieu of judgment circumvents the requirements of this section. Harrison v. Lyman, — P.3d — (Alaska July 25, 2012) (memorandum decision).

Arrears not reduced to judgment. —

Issue of the husband’s alleged child support arrears was not properly before the appellate court because nothing in the record indicated that the trial court ever entered a judgment for the alleged arrears, or that the wife attempted to obtain such a judgment and was denied. Williams v. Williams, 252 P.3d 998 (Alaska 2011).

Statute of limitations. —

Statute of limitations set out in former AS 09.10.040(b) , which applies to “actions”, does not apply to motions under this section seeking to establish a judgment for past due child support payments, because such motions are not “actions” as that term is understood at common law. Department of Revenue, Child Support Enforcement Div. ex rel. Gause v. Gause, 967 P.2d 599 (Alaska 1998).

Sec. 25.27.227. Nature of remedies.

AS 25.27.225 and 25.27.226 provide remedies in addition to and not as a substitute for any other remedies available to the parties.

History. (§ 9 ch 144 SLA 1984)

Revisor’s notes. —

Formerly AS 47.23.227. Renumbered in 1990.

Notes to Decisions

Stated in

Dep't of Revenue, Child Support Enforcement Div. ex rel. Gerke v. Gerke, 942 P.2d 423 (Alaska 1997).

Sec. 25.27.228. Court costs.

The court may order an obligor to pay all court costs involved in a proceeding resulting in a court order described in AS 25.27.225 , and in a proceeding under AS 25.27.226 .

History. (§ 9 ch 144 SLA 1984)

Revisor’s notes. —

Formerly AS 47.23.228. Renumbered in 1990.

Sec. 25.27.230. Assertion, recording, and effect of lien.

  1. The agency shall assert a lien upon the real or personal property of the obligor in the amount of the obligor’s liability if an arrearage occurs under a support order being enforced by the agency.
  2. A lien recorded under this section has no effect against earnings, or bank deposits or balances, unless it states the amount of the obligor’s liability under this chapter and unless the lien is served in accordance with AS 25.27.240 .
  3. The lien shall attach to all real and personal property of the obligor and be effective on the date of recording of the lien with the recorder of the recording district in which the property attached is located. A lien against earnings shall attach and be effective upon filing with the recorder of the recording district in which the employer does business or maintains an office or agent for the purpose of doing business. A lien filed at the offices of the Commercial Fisheries Entry Commission in Juneau against a limited entry permit issued under AS 16.43 is considered to have been filed against the permit in all recording districts in which the permit holder uses the permit.
  4. Whenever a lien has been recorded under this section and there is in the possession of any person, political subdivision, or department of the state having actual notice of the lien any property that may be subject to the lien, that property may not be paid over, released, sold, transferred, encumbered, or conveyed unless
    1. a written release or waiver signed by a representative of the agency has been delivered to the person, political subdivision, or department of the state; or
    2. a decision has been made in a hearing held under AS 25.27.170 or by a superior court ordering release of the lien on the grounds that no debt exists or that the debt has been satisfied.
  5. A lien arising in another state under the child support laws of that state shall be given full faith and credit in this state. The lien may be asserted in this state upon the real or personal property of the obligor in the amount of the obligor’s liability by complying with the requirements of this section.
  6. A lien recorded under this section is a judgment lien and may be enforced by execution under AS 09.35 in the full amount of the obligor’s liability at the time of execution.

History. (§ 29 ch 126 SLA 1977; am §§ 23, 24 ch 7 FSSLA 1994; am § 19 ch 57 SLA 1995; am § 104 ch 87 SLA 1997; am §§ 31, 32 ch 132 SLA 1998)

Revisor’s notes. —

Formerly AS 47.23.230. Renumbered in 1990. Minor word changes related to the recording of documents were made in subsections (b), (c), and (d) of this section in 1988 under sec. 42, ch. 161, SLA 1988.

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Notes to Decisions

Independent powers. —

The Child Support Enforcement Division’s (now the Child Support Services Agency’s) primary collection powers, such as the power to assert a lien on the property of an obligor and the power to issue orders to withhold and deliver property, do not require it to file a complaint or to initiate a new cause of action, but are independent powers meant to supplement judicial powers of enforcement, akin to a standard judicial execution as opposed to the initiation of a new legal proceeding. Koss v. Koss, 981 P.2d 106 (Alaska 1999).

Cited in

Dep't of Revenue, Child Support Enforcement Div. ex rel. Gerke v. Gerke, 942 P.2d 423 (Alaska 1997); Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000); State v. DeLeon, 103 P.3d 897 (Alaska 2004).

Sec. 25.27.240. Service of lien.

  1. The agency of this state or another state, or a party or other entity seeking to enforce a child support obligation, may, at any time after recording of a lien recorded under AS 25.27.230 , serve a copy of the lien upon any person, political subdivision, or department of the state possessing earnings, or deposits or balances held in any bank account of any nature that are due, owing, or belonging to the obligor.
  2. A lien recorded under AS 25.27.230 shall be served upon a person, political subdivision, or department of the state personally or by registered, certified, or insured mail, return receipt requested.

History. (§ 29 ch 126 SLA 1977; am § 105 ch 87 SLA 1997; am § 33 ch 132 SLA 1998)

Revisor’s notes. —

Formerly AS 47.23.240. Renumbered in 1990. Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Sec. 25.27.244. Adverse action against delinquent obligor’s occupational license.

  1. The agency shall compile and maintain a list of obligors who are not in substantial compliance with a support order or payment schedule negotiated under (g)(1) of this section. The agency may not include an obligor on the list unless the agency has sent to the obligor, at the obligor’s most recent address on file with the agency, written notice of the arrearages at least 60 days before placement on the list. The list must include the names, social security numbers, dates of birth, and last known addresses of the persons. The list shall be updated by the agency on a monthly basis.
  2. The agency shall, on a monthly basis, provide a copy of the list to each licensing entity through a computer readable magnetic medium. A licensing entity subject to this section shall implement procedures to accept and process the list. Notwithstanding any other law to the contrary, a licensing entity may not issue or renew a license for a person on the list except as provided in this section.
  3. Promptly after receiving an application from an applicant and before issuing or renewing a license, a licensing entity, other than one issuing commercial crewmember fishing licenses, shall determine whether the applicant is on the most recent list provided by the agency. If the applicant is on the list, the licensing entity shall immediately serve notice under (e) of this section of the licensing entity’s intent to withhold issuance or renewal of the license. The notice shall be considered given when delivered personally to the applicant or deposited in the United States mail addressed to the applicant’s last known mailing address on file with the licensing entity.
  4. Other than for a commercial crewmember fishing license, a licensing entity shall issue a temporary license valid for a period of 150 days to an applicant whose name is on the list if the applicant is otherwise eligible for a license. The temporary license may not be extended. Only one temporary license may be issued during a regular license term and its validity shall coincide with the first 150 days of that license term. A license for the full or remainder of the license term may be issued or renewed only upon compliance with this section. If a license or application is denied under this section, money paid by the applicant or licensee shall be refunded by the licensing entity after retention of the temporary license fee, if any.
  5. Notices for use under (c) and (r) of this section shall be developed by each licensing entity under guidelines provided by the agency and are subject to approval by the agency. The notice must include the address and telephone number of the agency and shall emphasize the necessity of obtaining a release from the agency as a condition for the issuance or renewal of a license. The notice must inform an applicant whose license is governed by (d) of this section that the licensing entity shall issue a temporary license for 150 calendar days under (d) of this section if the applicant is otherwise eligible and that, upon expiration of that time period, the license will be denied unless the licensing entity has received a release from the agency. The agency shall also develop a form that the applicant may use to request a review by the agency. A copy of this form shall be included with each notice sent under (c) or (r) of this section.
  6. The agency shall establish review procedures consistent with this section to allow an applicant to have the underlying arrearages and relevant defenses investigated, to provide an applicant information on the process of obtaining a modification of a support order, or to provide an applicant assistance in the establishment of a payment schedule on arrearages if the circumstances warrant.
  7. If the applicant wishes to challenge being included on the list, the applicant shall submit to the agency a written request for review within 30 days after receiving the notice under (c) or (r) of this section by using the form developed under (e) of this section. Within 30 days after receiving a written request for review, the agency shall inform the applicant in writing of the agency’s findings. The agency shall immediately send a release to the appropriate licensing entity and the applicant if any of the following conditions is met:
    1. the applicant is found to be in substantial compliance with each support order applicable to the applicant or has negotiated an agreement with the agency for a payment schedule on arrearages and is in substantial compliance with the negotiated agreement; if the applicant fails to be in substantial compliance with an agreement negotiated under this paragraph, the agency shall send to the appropriate licensing entity a revocation of any release previously sent to the entity for that applicant;
    2. the applicant has submitted a timely request for review to the agency, but the agency will be unable to complete the review and send notice of findings to the applicant in sufficient time for the applicant to file a timely request for judicial relief within the 150-day period during which the applicant’s temporary license is valid under (d) of this section; this paragraph applies only if the delay in completing the review process is not the result of the applicant’s failure to act in a reasonable, timely, and diligent manner upon receiving notice from the licensing entity that the applicant’s name is on the list;
    3. the applicant has, within 30 days after receiving the agency’s findings following a request for review under (2) of this subsection, filed and served a request for judicial relief under this section, but a resolution of that relief will not be made within the 150-day period of the temporary license under (d) of this section; this paragraph applies only if the delay in completing the judicial relief process is not the result of the applicant’s failure to act in a reasonable, timely, and diligent manner upon receiving the agency’s notice of findings; or
    4. the applicant has obtained a judicial finding of substantial compliance.
  8. An applicant is required to act with diligence in responding to notices from the licensing entity and the agency with the recognition that the temporary license granted under (d) of this section will lapse after 150 days and that the agency and, where appropriate, the court must have time to act within that 150-day period. An applicant’s delay in acting, without good cause, that directly results in the inability of the agency to complete a review of the applicant’s request or the court to hear the request for judicial relief within the required period does not constitute the diligence required under this section that would justify the issuance of a release.
  9. Except as otherwise provided in this section, the agency may not issue a release if the applicant is not in substantial compliance with the order for support or with an agreement negotiated under (g)(1) of this section. The agency shall notify the applicant in writing that the applicant may request any or all of the following: (1) judicial relief from the agency’s decision not to issue a release or the agency’s decision to revoke a release under (g)(1) of this section; (2) a judicial determination of substantial compliance; (3) a modification of the support order. The notice must also contain the name and address of the court in which the applicant may file the request for relief and inform the applicant that the applicant’s name shall remain on the list if the applicant does not request judicial relief within 30 days after receiving the notice. The applicant shall comply with all statutes and rules of court implementing this section. This section does not limit an applicant’s authority under other law to request an order to show cause or notice of motion to modify a support order or to fix a payment schedule on arrearages accruing under a support order or to obtain a court finding of substantial compliance with a support order or a court finding of compliance with subpoenas and warrants described in (a) of this section.
  10. A request for judicial relief from the agency’s decision must state the grounds on which relief is requested, and the judicial action shall be limited to those stated grounds. Judicial relief under this subsection is not an appeal and shall be governed by court rules adopted to implement this section. Unless otherwise provided by court rule, the court shall hold an evidentiary hearing within 20 calendar days after the filing of service on the opposing party. The court’s decision shall be limited to a determination of each of the following issues, as applicable:
    1. whether there is a support order or a payment schedule on arrearages;
    2. whether the petitioner is the obligor covered by the support order; and
    3. whether the obligor is in substantial compliance with the support order or payment schedule.
  11. If the court finds that the person requesting relief is in substantial compliance with the support order or payment schedule, the agency shall immediately send a release under (g) of this section to the appropriate licensing entity and the applicant.
  12. If an applicant is in substantial compliance with a support order or payment schedule, the agency shall mail to the applicant and the appropriate licensing entity a release stating that the applicant is in substantial compliance. The receipt of a release shall serve to notify the applicant and the licensing entity that, for the purposes of this section, the applicant is in substantial compliance with the support order or payment schedule unless the agency, under (a) of this section, certifies subsequent to the issuance of a release that the applicant is once again not in substantial compliance with a support order or payment schedule.
  13. The agency may enter into interagency agreements with the state agencies that have responsibility for the administration of licensing entities as necessary to implement this section to the extent that it is cost effective to implement the interagency agreements. The agreements shall provide for the receipt by the other state agencies and licensing entities of federal money to cover that portion of costs allowable in federal law and regulation and incurred by the state agencies and licensing entities in implementing this section.
  14. Notwithstanding any other provision of law, the licensing entities subject to this section shall assess a fee for issuance of a temporary license under this section. The licensing entity shall set the amount of the fee so that the fees collected under this section, to the extent reasonable, cover the costs of implementing and administering this section.
  15. The process described in (g) of this section is the sole administrative remedy for contesting the issuance to the applicant of a temporary license or the denial of a license under this section. The procedures specified in AS 44.62.330 44.62.630 do not apply to the denial or failure to issue or renew a license under this section.
  16. The agency and licensing entities, as appropriate, shall adopt regulations necessary to implement this section.
  17. Notwithstanding any provision of AS 16, a commercial crewmember fishing license described in (s)(2)(A)(xvi) of this section issued to an individual whose name is on the list is void and invalid, and the individual is subject to criminal sanctions for conducting the activities for which such a license is required. The licensing entity for commercial crewmember fishing licenses shall print a notice on commercial crewmember fishing license forms stating the provisions of this subsection.
  18. After receiving information, including information from a licensing agent appointed under AS 16.05.380 , that a commercial crewmember fishing license has been issued to an applicant, the licensing entity for the license shall promptly determine whether the applicant was, at the time the applicant obtained the license, on the most recent list provided by the agency under (b) of this section. If the applicant was on that list, the licensing entity shall immediately serve notice under (e) of this section that the license is void and invalid and that, notwithstanding the limitation of (d) of this section, the applicant can request the licensing entity to issue a temporary license under this section. A notice under this subsection is considered given when delivered personally to the applicant or deposited in the United States mail addressed to the applicant’s last known mailing address on file with the licensing entity.
  19. In this section,
    1. “applicant” means a person applying for issuance or renewal of a license;
    2. “license”
      1. means, except as provided in (B) of this paragraph, a license, certificate, permit, registration, or other authorization that, at the time of issuance, will be valid for more than 150 days and that may be acquired from a state agency to perform an occupation, including the following:
        1. license relating to boxing or wrestling under AS 05.10;
        2. authorization to perform an occupation regulated under AS 08;
        3. teacher certificate under AS 14.20;
        4. authorization under AS 18.08 to perform emergency medical services;
        5. asbestos worker certification under AS 18.31;
        6. boiler operator’s license under AS 18.60.395 ;
        7. certificate of fitness under AS 18.62;
        8. hazardous painting certification under AS 18.63;
        9. security guard license under AS 18.65.400 18.65.490 ;
        10. license relating to insurance under AS 21.27;
        11. employment agency permit under AS 23.15.330 23.15.520 ;
        12. registration as a broker-dealer, an agent, an investment adviser, or an investment adviser representative under AS 45.56.300 45.56.350 ;
        13. certification as a pesticide applicator under AS 46.03.320 ;
        14. certification as a storage tank worker or contractor under AS 46.03.375 ;
        15. certification as a water and wastewater works operator under AS 46.30;
        16. commercial crewmember fishing license under AS 16.05.480 other than an entry permit or interim-use permit under AS 16.43;
        17. fish transporter permit under AS 16.05.671 ;
        18. [Repealed, § 5 ch 30 SLA 2016.]
        19. [Repealed, § 5 ch 30 SLA 2016.]
      2. does not include
        1. a vessel license issued under AS 16.05.490 or 16.05.530 ;
        2. a business license issued under AS 43.70;
        3. an entry permit or interim-use permit issued under AS 16.43; or
        4. a driver’s license issued under AS 28.15;
    3. “licensee” means a person holding a license or applying to renew a license;
    4. “licensing entity” means the state agency that issues or renews a license; in the case of a license issued or renewed by the Department of Commerce, Community, and Economic Development after an applicant’s qualifications are determined by another agency, “licensing entity” means the department;
    5. “list” means the list of obligors and other persons compiled and maintained under (a) of this section;
    6. “substantial compliance” regarding a support order or payment schedule means that, with respect to periodic payments required under a support order or a negotiated payment schedule under (g) of this section, whichever is applicable, the obligor has
      1. no arrearage;
      2. an arrearage in an amount that is not more than four times the monthly obligation under the support order or payment schedule; or
      3. been determined by a court to be making the best efforts possible under the obligor’s circumstances to have no arrearages under any support order that requires periodic payments or under a negotiated payment schedule relating to child support.

History. (§ 23 ch 107 SLA 1996; am §§ 106 — 118 ch 87 SLA 1997; am §§ 34 — 39 ch 132 SLA 1998; am § 28 ch 58 SLA 1999; am § 2 ch 76 SLA 1999; am § 18 ch 106 SLA 2000; am § 9 ch 112 SLA 2003; am § 7 ch 70 SLA 2004; am § 16 ch 99 SLA 2004; am § 46 ch 57 SLA 2005; am §§ 4, 5, 8 ch 30 SLA 2016; am § 7 ch 65 SLA 2018)

Revisor's notes. —

Subsections (q) and (r) were enacted as (r) and (s), respectively. Relettered in 1997, at which time former (q) was relettered as (s), “(r)” was substituted for “(s)” in subsections (e) and (g), and “(s)(2)(A)(xvi)” was substituted for “(q)(2)(A)(xvi)” in subsection (q).

In 1999, in (s) of this section, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999. In 2004, in (s) of this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development”, in accordance with § 3, ch. 47, SLA 2004.

In 2018, in (s) of this section, “AS 45.56.300 45.56.350 ” was substituted for “AS 45.56.405 — 45.56.440 ” to reflect the 2018 renumbering of those sections.

Cross references. —

For purpose and findings provisions relating to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Administrative Code. —

For holder in possession and application for certificate of fitness, see 8 AAC 90, art. 1.

For occupational licensing fees, see 12 AAC 2, art. 2.

For licensing actions, see 15 AAC 125, art. 7.

Effect of amendments. —

The 2016 amendment, effective January 1, 2017, in (s)(2)(A)(xviii), inserted “salt water sport fishing operator license under AS 16.40.261 ”, added (s)(2)(A)(xix); and made related changes. Effective January 1, 2019, repealed (s)(2)(A)(xviii) and (xix) which read, “(xviii) salt water sport fishing operator license under AS 16.40.261 ; (xix) salt water sport fishing guide license under AS 16.40.271 ;”.

The 2018 amendment, effective January 1, 2019, in (s)(2)(A)(xii), substituted “an investment adviser” for “a state investment adviser” following “an agent,”, and “AS 45.56.405 – 45.56.440 [now AS 45.56.300 45.56.350 ]” for “AS 45.55.030 ” at the end.

Notes to Decisions

Stated in

Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Cited in

State v. DeLeon, 103 P.3d 897 (Alaska 2004).

Sec. 25.27.246. Adverse action against delinquent obligor’s driver’s license.

  1. The agency shall compile and maintain a list of obligors who have a driver’s license, and either (1) are not in substantial compliance with a support order, or (2) whose names are required to be placed on the list under (p)(2) of this section. The agency may not include an obligor on the list unless the agency has sent to the obligor, at the obligor’s most recent address on file with the agency, written notice of the arrearages at least 60 days before placement on the list. The list must include the names, social security numbers, dates of birth, and last known addresses of the persons. The list shall be updated by the agency on a monthly basis.
  2. The agency shall serve notice under (d) of this section to each person on the list that the person’s driver’s license will be suspended in 150 days, and will not be reissued or renewed the next time it is applied for if the person’s name is on the list at the time of the subsequent application, unless the licensee receives a release from the agency. The notice shall be considered given when delivered personally to the person or deposited in the United States mail addressed to the person’s last known mailing address on file with the agency.
  3. If the licensee fails to obtain a release during the 150-day period following notice under (b) and (d) of this section or if the agency revokes a release of a person’s license under (n) or (o) of this section, the agency shall notify the department that the licensee’s driver’s license should be suspended and further renewals or applications should be denied until the agency sends the department a release for the licensee. Upon receiving the agency’s notice under this subsection, the department shall suspend the licensee’s driver’s license and may not issue or renew a driver’s license for the licensee until the department receives a release to do so from the agency. If a license is suspended or an application is denied under this section, money paid by the applicant or licensee may not be refunded by the department.
  4. The notice under (b) of this section must include the address and telephone number of the agency and shall emphasize the necessity of obtaining a release from the agency as a condition for avoiding suspension or denial of the person’s driver’s license. The notice must also inform the licensee that, if a license is suspended or an application is denied under this section, money paid by the licensee will not be refunded by the department. The agency shall also develop a form that the licensee may use to request a review by the agency. A copy of this form shall be included with each notice sent under (b) of this section.
  5. The agency shall establish review procedures consistent with this section to allow a licensee to have the underlying arrearages and relevant defenses investigated, to provide a licensee with information on the process of obtaining a modification of a support order, or to provide a licensee with assistance in the establishment of a payment schedule on arrearages if the circumstances warrant.
  6. If a licensee wishes to challenge being included on the list, the licensee shall submit to the agency a written request for review within 30 days after the notice under (b) of this section was personally delivered or postmarked by using the form developed under (d) of this section. Within 30 days after receiving a written request for review, the agency shall inform the licensee in writing of the agency’s findings. The agency shall immediately send a release to the department and the licensee if any of the following conditions is met:
    1. the licensee is found to be in substantial compliance with each support order applicable to the licensee or has negotiated an agreement with the agency for a payment schedule on arrearages and is in substantial compliance with the negotiated agreement;
    2. the licensee has submitted a timely request for review to the agency, but the agency will be unable to complete the review and send notice of findings to the licensee in sufficient time for the licensee to file a timely request for judicial relief within the 150-day period before the licensee’s license will be suspended under (c) of this section; this paragraph applies only if the delay in completing the review process is not the result of the licensee’s failure to act in a reasonable, timely, and diligent manner upon receiving notice from the agency that the licensee’s driver’s license will be suspended in 150 days;
    3. the licensee has, within 30 days after receiving the agency’s findings following a request for review under (2) of this subsection, filed and served a request for judicial relief under this section, but a resolution of that relief will not be made within the 150-day period before license suspension under (c) of this section; this paragraph applies only if the delay in completing the judicial relief process is not the result of the licensee’s failure to act in a reasonable, timely, and diligent manner upon receiving the agency’s notice of findings; or
    4. the licensee has obtained a judicial finding of substantial compliance.
  7. A licensee is required to act with diligence in responding to notices from the agency with the recognition that the person’s driver’s license will be suspended after 150 days or that a subsequent license will not be issued and that the agency and, where appropriate, the court must have time to act within that 150-day period or before the subsequent license is needed, as applicable. A licensee’s delay in acting, without good cause, that directly results in the inability of the agency to complete a review of the licensee’s request or the court to hear the request for judicial relief within the required period does not constitute the diligence required under this section that would justify the issuance of a release.
  8. If the agency refuses to release the license under (f) of this section or the agency revokes a release under (n) or (o) of this section, the agency shall notify the licensee in writing that the licensee may request any or all of the following: (1) judicial relief from the agency’s decision not to issue a release or the agency’s decision to revoke a release under (n) or (o) of this section; (2) a judicial determination of substantial compliance; (3) a modification of the support order. The notice must also contain the name and address of the court in which the licensee may file the request for relief. The licensee shall comply with all statutes and rules of court implementing this section. This section does not limit a licensee’s authority under other law to request an order to show cause or notice of motion to modify a support order or to fix a payment schedule on arrearages accruing under a support order or to obtain a court finding of substantial compliance with a support order.
  9. A request for judicial relief from the agency’s decision not to issue a release under (f) of this section or from the agency’s decision to revoke a release under (n) or (o) of this section must state the grounds on which relief is requested, and the judicial action shall be limited to those stated grounds. Judicial relief under this subsection is not an appeal and shall be governed by court rules adopted to implement this section. Unless otherwise provided by court rule, the court shall hold an evidentiary hearing within 20 calendar days after the filing of service on the opposing party. The court’s decision shall be limited to a determination of each of the following issues, as applicable:
    1. whether there is a support order or a payment schedule on arrearages;
    2. whether the petitioner is the obligor covered by the support order; and
    3. whether the obligor is in substantial compliance with the support order or payment schedule.
  10. If the court finds that the person requesting relief is in substantial compliance with the support order or payment schedule, the agency shall immediately send a release under (f) of this section to the department and the licensee.
  11. If a licensee is in substantial compliance with a support order or payment schedule, the agency shall mail to the licensee and the department a release stating that the licensee is in substantial compliance. The receipt of a release shall serve to notify the licensee and the department that, for the purposes of this section, the licensee is in substantial compliance with the support order or payment schedule unless the agency
    1. under (a) of this section, certifies subsequent to the issuance of a release that the licensee is once again not in substantial compliance with a support order; or
    2. under (n), (o), or (p) of this section, revokes a release because the licensee is not in substantial compliance with a payment schedule negotiated under this section.
  12. The process described in (f) of this section is the sole administrative remedy for contesting the suspension or the denial of a driver’s license under this section. The procedures specified in AS 28 or AS 44.62.330 44.62.630 do not apply to the suspension or failure to issue or renew a license under this section.
  13. The agency and department, as appropriate, shall adopt regulations necessary to implement this section.
  14. If the agency releases a license under (f)(2) or (3) of this section because the review could not be completed within the 150-day period, the review process, including any request for judicial relief, may be completed after the 150-day period. If, at the completion of the review process, the licensee is found not to be in substantial compliance with each support order applicable to the licensee and has not entered into a payment schedule under this section, the agency shall send to the department a revocation of the release previously sent to the department for that licensee. The agency shall send notice of the revocation to the licensee as provided in (h) of this section.
  15. Except as provided in (p) of this section, if the licensee fails to be in substantial compliance with a payment schedule negotiated under this section, the agency shall send to the department a revocation of any release previously sent to the department for that licensee. The agency shall send notice of the revocation to the licensee as provided in (h) of this section.
  16. If a licensee fails to be in substantial compliance with a payment schedule negotiated under this section but paid the monthly obligation under the payment schedule for at least two years immediately after the schedule was negotiated, the agency shall
    1. revoke the release previously granted to the licensee under this section and notify the department and licensee that the release has been revoked; the licensee may not challenge the revocation of this release; upon receiving the agency’s notice under this paragraph, the department may not suspend the licensee’s driver’s license or refuse to issue or renew a driver’s license for the licensee unless the department subsequently receives a new notice to do so from the agency under (c) of this section;
    2. initiate new proceedings against the licensee under this section by placing the licensee’s name on the list compiled under (a) of this section after following the procedures required under (a) of this section;
    3. follow the procedures of this section with respect to the licensee as if it were the first time that the licensee’s name had been placed on the list compiled under (a) of this section, except that the agency may either negotiate a new payment schedule under (f)(1) of this section or seek to enforce the previously negotiated payment schedule.
  17. In this section,
    1. “department” means the Department of Administration;
    2. “driver’s license” or “license” means a driver’s license, as defined in AS 28.90.990 ;
    3. “licensee” means a person holding or requesting a driver’s license;
    4. “list” means the list of obligors and other persons compiled and maintained under (a) of this section;
    5. “substantial compliance” regarding a support order or payment schedule means that, with respect to periodic payments required under a support order or a negotiated payment schedule under (f) of this section, whichever is applicable, the obligor has
      1. no arrearage;
      2. an arrearage in an amount that is not more than four times the monthly obligation under the support order or payment schedule; or
      3. been determined by a court to be making the best efforts possible under the obligor’s circumstances to have no arrearages under any support order that requires periodic payments or under a negotiated payment schedule relating to child support.

History. (§ 23 ch 107 SLA 1996; am §§ 119 — 127 ch 87 SLA 1997; am E.O. No. 99 § 20 (1997); am §§ 40 — 46 ch 132 SLA 1998; am § 19 ch 106 SLA 2000; am §§ 2 — 8 ch 107 SLA 2004)

Revisor’s notes. —

Subsections (n)-(p) were enacted as (o)-(q), respectively, and relettered in 2004, at which time what was formerly subsection (n) was relettered as (q) and internal references were conformed accordingly.

In 2006, in (q)(2) of this section, “AS 28.90.990 ” was substituted for “AS 28.40.100 ” to reflect the 2006 renumbering of AS 28.40.100 .

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Administrative Code. —

For licensing actions, see 15 AAC 125, art. 7.

Notes to Decisions

Constitutionality. —

This section would be unconstitutional as applied, in violation of Alaska’s equal protection clause, if used to revoke the license of an individual incapable of paying the demanded support; the Child Support Enforcement Division (now the Child Support Services Agency) may not require, in payment-schedule negotiations, payments beyond the “best efforts” of the obligor. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Subsection (i) cannot be applied to prevent a litigant from seeking judicial relief based on inability to pay; with that limitation, subsection (i) passes constitutional muster against the claim that it violates due process. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Right to jury trial. —

Suspension of obligor’s driver’s license under this section, pending compliance with child support order or payment plan, is not punitive and criminal in nature; the Alaska Constitution does not, therefore, entitle the obligor to a jury trial. Department of Revenue, Child Support Enforcement Div. v. Beans, 965 P.2d 725 (Alaska 1998).

Support amount properly calculated on presumed full-time employment. —

Child support enforcement division did not err in determining that father was underemployed, or in setting child support at a higher level than father’s actual income; failure of father to pay the support amount ordered properly triggered suspension of his driver’s license. Nunley v. State, 99 P.3d 7 (Alaska 2004).

Cited in

State v. DeLeon, 103 P.3d 897 (Alaska 2004).

Sec. 25.27.250. Order to withhold and deliver.

  1. Without prior notice to the obligor, the agency may issue to any person, including an entity, political subdivision, or state agency, an order to withhold and deliver property under this section; the order may be issued
    1. immediately upon issuance of an income withholding order that provides for immediate income withholding under AS 25.27.062(a) ;
    2. immediately after an arrearage occurs under a support order described in AS 25.27.150(a) ;
    3. at the expiration of 30 days after the date of service of a notice and finding of financial responsibility under AS 25.27.160 ; or
    4. at the expiration of 30 days after service of a decision establishing paternity and financial responsibility under AS 25.27.165 .
  2. All real or personal property belonging to the obligor is subject to an order to withhold and deliver, including, but not limited to, earnings that are due, owing, or belonging to the debtor. In calculating the amount to be withheld and delivered under an order issued under this section, the agency shall give credit to the obligor for the cost to the obligor of medical and dental insurance for the children and educational payments for the children to the extent that the insurance coverage and educational payments are required in the applicable child support order and are actually paid for by the obligor.
  3. The agency may issue an order to withhold and deliver when it has reason to believe that there is in the possession of a person, political subdivision, or department of the state property that is due, owing, or belonging to the obligor.
  4. The order to withhold and deliver shall be served upon the person, political subdivision, or department of the state possessing the property electronically or in the manner provided for service of liens under AS 25.27.240 . The order must state the amount of the obligor’s liability and must state in summary the terms of AS 25.27.260 and 25.27.270 .
  5. Any person, political subdivision, or department of the state served with an order to withhold and deliver is required to make true answers to inquiries contained in the order under oath and in writing within 14 days after service of the order, and is further required to answer all inquiries subsequently put.
  6. If a person, political subdivision, or department of the state upon whom service of an order to withhold and deliver has been made possesses property due, owing, or belonging to the obligor, that person, subdivision, or department shall withhold the property immediately upon receipt of the order and shall deliver the property to the agency (1) if the property is earnings of an employee who is subject to a child support order being enforced by the agency, within seven business days after the amount would, but for this section, have been paid or credited to the employee; or (2) in the case of all other property, within 14 business days after the date of service of the order. The agency shall hold property delivered under this subsection in trust for application against the liability of the obligor under AS 25.27.062 , 25.27.120 , or 25.27.160 or for return, without interest, depending on final determination of liability or nonliability under this chapter. The agency may accept a good and sufficient bond to secure payment of past, present, and future support conditioned upon final determination of liability in lieu of requiring delivery of property under this subsection.
  7. Delivery to the agency of the money or other property due, owing, or belonging to the obligor shall satisfy the requirement of the order to withhold and deliver.  Delivery of money due and owing to the obligor under any contract of employment, express or implied, or held by any person, political subdivision, or department of the state, and subject to withdrawal by the obligor, shall be delivered by remittance payable to the order of the agency.
  8. [Repealed, § 148(a) ch 87 SLA 1997.]
  9. An order to withhold and deliver under this section has priority over all other attachments, executions, garnishments, or other legal process brought under state law against the same property unless otherwise ordered by the court. Exemptions under AS 09.38 do not apply to proceedings to enforce the payment of child support under AS 25.27.230 25.27.270 ; however, net disposable earnings are exempt from execution as provided in 15 U.S.C. 1673(b).  In this subsection, “net disposable earnings” has the meaning given in 15 U.S.C. 1672.
  10. A person, political subdivision, or department that fails to comply with an order to withhold and deliver served under this subsection is subject to penalties under AS 25.27.260 . A person, political subdivision, or department may, for each payment made under an order to withhold and deliver, deduct $5 from other wages or salary owed to the obligor.

History. (§ 29 ch 126 SLA 1977; am § 8 ch 96 SLA 1981; am § 134 ch 6 SLA 1984; am § 10 ch 144 SLA 1984; am § 12 ch 40 SLA 1985; am §§ 14 — 16 ch 68 SLA 1988; am §§ 25 — 28 ch 7 FSSLA 1994; am § 20 ch 57 SLA 1995; am §§ 128 — 130, 148 ch 87 SLA 1997; am § 47 ch 132 SLA 1998)

Revisor’s notes. —

Formerly AS 47.23.250. Renumbered in 1990.

Cross references. —

For legislative findings and purpose in connection with the 1984 amendment of this section, see § 1, ch. 144, SLA 1984 in the Temporary and Special Acts.

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Independent powers. —

The Child Support Enforcement Division’s (now the Child Support Services Agency’s) primary collection powers, such as the power to assert a lien on the property of an obligor and the power to issue orders to withhold and deliver property, do not require it to file a complaint or to initiate a new cause of action, but are independent powers meant to supplement judicial powers of enforcement, akin to a standard judicial execution as opposed to the initiation of a new legal proceeding. Koss v. Koss, 981 P.2d 106 (Alaska 1999).

Liability of employer who fails to comply with a WID order. —

An employer or other person, political subdivision, or department of the state is liable to the state under AS 25.27.260(a) for failure to comply with a WID, but given the lack of a clear legislative intent that the statute should be construed to impose liability independent of the support obligation, the court found that the employer’s liability for failure to comply with the WIDs regarding their employee was joint and several with the employee’s liability. Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Administrative appeal. —

Superior court did not err in dismissing an inmate’s administrative appeal regarding an income withholding order of $50 per month issued by the Alaska Child Support Enforcement Division (CSED) (now the Child Support Services Agency); this section authorizes CSED (CSSA) to collect arrearages through an income withholding order, and CSED (CSSA) was not collecting more than was permitted by law. Hertz v. Phillips, — P.3d — (Alaska Apr. 6, 2005), (memorandum opinion).

Quoted in

Hertz v. Hertz, 847 P.2d 71 (Alaska 1993).

Cited in

Anderson v. Anderson, 736 P.2d 320 (Alaska 1987); Smith v. State, Dep't of Revenue, Child Support Enforcement Div., 790 P.2d 1352 (Alaska 1990).

Sec. 25.27.253. Earnings subject to an order or lien.

  1. A person, political subdivision, or department of the state shall withhold the earnings of the obligor subject to an order or lien at each succeeding interval of payment until the entire amount of the debt stated in the order to withhold and deliver has been withheld.
  2. An order to withhold and deliver issued to the Department of Revenue remains in effect throughout the calendar year in which it is served.  That order applies to any tax refund or other disbursements to which the obligor is entitled even if the tax refund or disbursement is issued more than 30 days after service of the order.

History. (§ 9 ch 96 SLA 1981)

Revisor’s notes. —

Formerly AS 47.23.253. Renumbered in 1990.

Administrative Code. —

For administrative enforcement — income withholding, see 15 AAC 125, art. 6.

Notes to Decisions

Stated in

Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Sec. 25.27.255. Disposition of payments under income withholding orders.

  1. The agency shall pay to the obligee all money recovered by the agency from the obligor under an income withholding order except for court costs and money assigned to the agency under AS 25.27.120 25.27.130 . However, if there is more than one income withholding order under this chapter against an obligor, the agency shall allocate amounts available for withholding in a manner that gives priority to current support up to the limits imposed under 15 U.S.C. 1673(b) (sec. 303(b), Consumer Credit Protection Act). Notwithstanding the priority given to current support, the agency shall establish procedures for allocation of support among obligees so that in no case will the allocation result in a withholding order for one obligee not being implemented.
  2. [Repealed, § 34 ch 7 FSSLA 1994.]
  3. [Repealed, § 34 ch 7 FSSLA 1994.]

History. (§ 9 ch 96 SLA 1981; am § 13 ch 40 SLA 1985; am § 17 ch 68 SLA 1988; am §§ 29, 34 ch 7 FSSLA 1994)

Revisor’s notes. —

Formerly AS 47.23.255. Renumbered in 1990.

Sec. 25.27.260. Civil liability upon failure to comply with an order or lien.

  1. If a person, political subdivision, or department of the state (1) fails to make an answer to an order to withhold and deliver within the time prescribed in AS 25.27.250 ; (2) fails or refuses to deliver property in accordance with an order issued under AS 25.27.250 ; (3) pays over, releases, sells, transfers, or conveys real property subject to a lien recorded under AS 25.27.230 to or for the benefit of the obligor or any other person; (4) fails or refuses to surrender upon demand property attached; or (5) intentionally fails or refuses to honor an assignment of wages or an income withholding order under AS 25.27.062 that was served by the agency through personal service by a process server or through certified mail, return receipt requested, the person, political subdivision, or department of the state is liable to the agency in an amount equal to 100 percent of the amount constituting the basis of the lien, order to withhold and deliver, attachment, or withholding of wages or income, together with costs, interest, and reasonable attorney fees.
  2. A person, political subdivision, or department of the state that intentionally fails or refuses to honor a properly served income withholding order under AS 25.27.062 that is not being enforced by the agency is liable to the obligee in an amount equal to 100 percent of the amount ordered to be withheld together with costs, interest, and reasonable attorney fees.

History. (§ 29 ch 126 SLA 1977; am § 10 ch 96 SLA 1981; am § 14 ch 40 SLA 1985; am §§ 30, 31 ch 7 FSSLA 1994)

Revisor’s notes. —

Formerly AS 47.23.260. Renumbered in 1990. Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Liability of employer who fails to comply with a withhold income and deliver property (WID) order. —

An employer or other person, political subdivision, or department of the state is liable to the state under subsection (a) for failure to comply with a WID, but given the lack of a clear legislative intent that the statute should be construed to impose liability independent of the support obligation, the court found that the employer’s liability for failure to comply with the WIDs regarding their employee was joint and several with the employee’s liability. Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000).

Sec. 25.27.265. Method of service; notification of change of address.

  1. Except as otherwise provided under this chapter, when a notice, paper, or other document is required by this chapter to be given or served upon a person by the agency, the notice, paper, or other document may be served as required by Rule 5, Alaska Rules of Civil Procedure or any other method permitted by law.
  2. Each party to a paternity or child support proceeding shall file with the tribunal and inform the agency of the party’s name, location, social security number, residential and mailing addresses, telephone number, and driver’s license number, as well as the name, address, and telephone number of any employer of the party. If a change in this information occurs, the party shall immediately notify the tribunal and the agency and provide updated information.
  3. Notwithstanding (a) of this section, if a tribunal finds that the agency has made diligent efforts to give or serve a notice, paper, or other document required by this chapter, the tribunal may order that service in any subsequent child support enforcement effort by the agency may be given upon the party by sending the document by first class mail to the party’s most recent mailing address on file with the agency.

History. (§ 11 ch 144 SLA 1984; am § 15 ch 40 SLA 1985; am § 9 ch 72 SLA 1986; am §§ 131, 132 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.265. Renumbered in 1990.

Cross references. —

For legislative findings and purpose in enacting this section, see § 1, ch. 144, SLA 1984 in the Temporary and Special Acts; for effect of subsection (c) on court rules, see § 153, ch. 87, SLA 1997 in the 1997 Temporary and Special Acts.

Notes to Decisions

Notice of address change. —

Trial court did not violate the father’s procedural due process rights by retroactively modifying his child support obligation to the date he was served with notice of the Child Support Enforcement Division’s (CSED) (now the Child Support Services Agency’s) petition for modification as provided in Alaska R. Civ. P. 90.3(h)(2); there was adequate evidence that the father actually received the CSED’s (CSSA’s) notice, where the record showed, among other things, that the CSED (CSSA) mailed the notice to the father’s last known address, in compliance with Alaska R. Civ. P. 5. The father had an obligation under subsection (b) of this section to keep the trial court apprised of any change of address. Crumpler v. State ex rel. Armstrong, 117 P.3d 730 (Alaska 2005).

Date of notice not in dispute. —

In a child support modification proceeding, the trial court abused its discretion under Alaska R. Civ. P. 90.3(h)(2) by failing to make a child support modification order effective the date the father was served with the petition, and by denying post-majority support for the parties’ daughter under AS 25.24.170 . Dep't of Revenue, Child Support Servs. Div. ex rel. Peterson v. Kosto, — P.3d — (Alaska Mar. 4, 2009), (memorandum opinion).

Sec. 25.27.270. Judicial relief from administrative execution.

Any person against whose property a lien has been recorded under AS 25.27.230 or an order to withhold and deliver served in accordance with AS 25.27.250 may apply for relief to the superior court.

History. (§ 29 ch 126 SLA 1977)

Revisor’s notes. —

Formerly AS 47.23.270. Renumbered in 1990. Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Action against agency for disestablishment of paternity. —

The Child Support Enforcement Division (now the Child Support Services Agency) was a proper defendant in an action for disestablishment of paternity brought by the “legal” father of child against his ex-wife and the agency. Department of Revenue, Child Support Enforcement Div. v. Allsop, 902 P.2d 790 (Alaska 1995).

Sec. 25.27.273. Reporting of payment information concerning delinquent obligors.

  1. The agency may provide to credit bureaus or lending institutions of any kind information about delinquent support owed by obligors. The information provided must consist solely of the payment history of the obligor.
  2. Upon an obligor’s payment of delinquent support, the agency shall immediately notify all credit bureaus and lending institutions that were furnished information about the obligor under (a) of this section that the obligor is no longer delinquent.

History. (§ 12 ch 144 SLA 1984; am § 10 ch 72 SLA 1986; am § 133 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.273. Renumbered in 1990.

Cross references. —

For legislative findings and purpose in enacting this section, see § 1, ch. 144, SLA 1984 in the Temporary and Special Acts.

Notes to Decisions

Cited in

Child Support Recovery Servs. ex rel. S.C. v. Inn at the Waterfront, Inc., 7 P.3d 63 (Alaska 2000); Allen v. Dep't of Revenue, Child Support Enforcement Div., 15 P.3d 743 (Alaska 2000).

Sec. 25.27.275. Nondisclosure of information in exceptional circumstances.

Upon a finding, which may be made ex parte, that the health, safety, or liberty of a party or child would be unreasonably put at risk by the disclosure of identifying information, or if an existing order so provides, a tribunal shall order that the address of the party or child or other identifying information not be disclosed in a pleading or other document filed in a proceeding under this chapter. A person aggrieved by an order of nondisclosure issued under this section that is based on an ex parte finding is entitled on request to a formal hearing, within 30 days of when the order was issued, at which the person may contest the order.

History. (§ 11 ch 96 SLA 1981; am § 134 ch 87 SLA 1997)

Revisor’s notes. —

Formerly AS 47.23.275. Renumbered in 1990.

Administrative Code. —

For hearing procedures, see 15 AAC 5, art. 1.

Notes to Decisions

Applied in

Hertz v. Hertz, 847 P.2d 71 (Alaska 1993).

Sec. 25.27.278. Payments not disbursed.

Support payments collected and held by the agency for seven years without disbursal shall be returned to the obligor.

History. (§ 16 ch 40 SLA 1985)

Revisor’s notes. —

Formerly AS 47.23.278. Renumbered in 1990.

Sec. 25.27.279. Voiding of fraudulent transfers made to avoid payment of child support.

In addition to the rights provided in AS 09.25.060 , if a transfer of personal or real property is made by an obligor without immediate delivery and the actual continuing change of possession of the property transferred, the transfer of the property is presumed prima facie to be fraud against creditors for child support of the obligor who transferred the property and subsequent purchasers in good faith and for valuable consideration during the time the property remains in the possession of the obligor who made the transfer, except that retention of possession in good faith and current course of trade by a merchant seller for a commercially reasonable time after the sale or identification is not fraudulent. Nothing contained in this section supersedes the provisions of AS 45.01 — AS 45.08, AS 45.12, AS 45.14, and AS 45.29 (Uniform Commercial Code).

History. (§ 135 ch 87 SLA 1997)

Revisor’s notes. —

In 2000, “AS 45.01 — AS 45.08, AS 45.12, AS 45.14, and AS 45.29” was substituted for “AS 45.01 — AS 45.09, AS 45.12, and AS 45.14” in accordance with § 35, ch. 113, SLA 2000.

Sec. 25.27.280. Severability: Alternative when method of notification held invalid.

If any provision of this chapter or the application of it to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable. If any method of notification provided for in this chapter is held invalid, service as provided for by the laws of the state for service of process in a civil action shall be substituted for the method held invalid.

History. (§ 29 ch 126 SLA 1977)

Revisor’s notes. —

Formerly AS 47.23.280. Renumbered in 1990.

Sec. 25.27.300. Requests pertaining to remarriage.

The agency shall, at the request of a person who is an obligor under a support order enforced by the agency that includes support for a parent with whom a child is living or at the request of a child support enforcement agency of another jurisdiction that is enforcing a support order that includes support for a parent with whom a child is living, request the Bureau of Vital Statistics to disclose to the agency whether the parent has remarried in the state after a specified date if the support order provides that the support for the parent is payable only until the parent remarries. The agency may disclose to the obligor or other child support enforcement agency, as applicable, the information provided by the bureau.

History. (§ 48 ch 132 SLA 1998)

Cross references. —

For purpose and findings provisions related to the 1998 enactment of this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Sec. 25.27.320. Interest on agency return of certain overpayments.

  1. If the agency disburses money to an obligor because the agency made an error and mistakenly required the obligor to overpay under a support order enforced by the agency, the agency shall include interest with the disbursement at the rate of six percent a year. The interest accrues from the date the payment at issue was received by the agency, regardless of when the payment is determined to be an overpayment.
  2. The provisions of (a) of this section do not apply to situations where the agency is ordered by a court to return money to an obligor based on the obligor’s being the prevailing party in a court action.

History. (§ 2 ch 46 SLA 2000)

Sec. 25.27.900. Definitions.

In this chapter,

  1. “agency” means the child support services agency;
  2. “arrearage” means a debt that is past due and equal to at least one monthly obligation under the support order for one or more of the following:
    1. monetary support;
    2. cash medical support;
    3. payment of health care costs or maintenance of health insurance;
    4. reimbursement of related costs;
    5. payment of attorney fees and legal costs and other fees;
    6. penalty, interest, and other relief as required by a support order;
  3. “assistance under AS 47.27,” “assistance granted under AS 47.27,” or “assistance paid on behalf of the obligee under AS 47.27” means cash assistance provided under AS 47.27 (Alaska temporary assistance program);
  4. “business day” means a day on which state government offices are open for regular business;
  5. “department” means the Department of Revenue;
  6. “duty of support” includes a duty of support imposed or imposable by law, by a court order, decree, or judgment, or by a finding or decision rendered under this chapter whether interlocutory or final, whether incidental to a proceeding for divorce, legal separation, separate maintenance, or otherwise, and includes the duty to pay arrearages of support past due and unpaid together with penalties and interest on arrearages imposed under AS 25.27.020(a)(2)(B) and the duty to provide health care coverage in compliance with AS 25.27.060(c) and 25.27.063 ;
  7. “earnings” includes income from any form of periodic payment due to an individual, regardless of source; the gain derived from the investment of capital, from labor, or from a combination of investment and labor; and the interest on any of this income; in this paragraph, “periodic payment” includes wages, salaries, commissions, bonuses, workers’ compensation, disability benefits, and payments under a pension or retirement program;
  8. “employer” means an individual or entity within the meaning given that term in 26 U.S.C. 3401(d); “employer” includes a governmental entity or a labor organization;
  9. “high-volume automated administrative enforcement” means the use of automatic data processing to search various state data bases, including license records, employment service data, and state new-hire registries, to determine whether information is available regarding a parent who owes a child support obligation;
  10. “obligee” means a person to whom a duty of support is owed;
  11. “obligor” means a person owing a duty of support;
  12. “support order” means any judgment, decree, or order that is issued by a tribunal for the support and maintenance of a child or of a parent with whom the child is living; “support order” includes a judgment, decree, or order
    1. on behalf of a child who has reached the age of majority if the judgment, decree, or order was lawfully issued; and
    2. for any or all of the following:
      1. monetary support, including arrearages;
      2. payment of health care costs or maintenance of health insurance;
      3. payment of cash medical support;
      4. reimbursement of related costs;
      5. payment of attorney fees and legal costs and other fees; or
      6. penalty, interest, and other relief as required by a tribunal;
  13. “tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.

History. (§ 1 ch 251 SLA 1976; am §§ 27, 28 ch 126 SLA 1977; am § 4 ch 96 SLA 1981; am § 9 ch 118 SLA 1982; am § 133 ch 6 SLA 1984; am §§ 11, 12 ch 72 SLA 1986; am §§ 136 — 139 ch 87 SLA 1997; am §§ 49, 50 ch 132 SLA 1998; am §§ 20, 21 ch 106 SLA 2000; am § 3 ch 69 SLA 2002; am §§ 9, 10 ch 45 SLA 2009)

Revisor’s notes. —

Formerly AS 47.23.110. Renumbered as AS 47.23.900 and reorganized to alphabetize the terms defined in 1984. Renumbered again in 1990 and 1997. Paragraphs (2) and (9) [formerly (8)] were enacted as (11) and (12), respectively. Renumbered in 1998, at which time former paragraphs (2)-(6) were renumbered as (3)-(7) [now (4)-(8)] and former paragraphs (7)-(10) were renumbered as (9)-(12) [now (10)-(13)]. Paragraph (3) was enacted as (13); renumbered in 2002, at which time former paragraphs (3)-(12) were renumbered as (4)-(13).

In 2004, “child support enforcement agency” was changed to “child support services agency” in this section in accordance with § 12(a), ch. 107, SLA 2004.

Cross references. —

For purpose and findings provisions related to the 1998 amendments affecting this section, see § 1, ch. 132, SLA 1998 in the 1998 Temporary and Special Acts.

Effect of amendments. —

The 2009 amendment, effective July 1, 2009, repealed and reenacted (2), which read, “ ‘arrearage’ means a debt for support that is past due and equal to at least one monthly obligation under the support order”; amended (12), adding (12)(B)(iii), and redesignating former (iii), (iv), and (v) as (iv), (v), and (vi).

Notes to Decisions

No credit for voluntary overpayment. —

Obligor father, who was making child support payments to the obligee mother for their minor child, was not entitled to reimbursement or credit for 50 percent of the child's health insurance premiums, when the father procured insurance, because the father's continued full payment would have been a voluntary overpayment which was not subject to reimbursement or credit. Rosenbaum v. Shaw, 459 P.3d 467 (Alaska 2020).

Payment of arrearage. —

Because the outstanding arrears were due and unpaid, they had vested under AS 25.27.225 , and the superior court did not have the power to modify the payment or create a payment schedule. Setting up a payment schedule for arrears in lieu of judgment circumvents the requirements of AS 25.27.226 . Harrison v. Lyman, — P.3d — (Alaska July 25, 2012) (memorandum decision).

Applied in

Child Support Enf't Div. v. Gammons, 774 P.2d 181 (Alaska 1989).

Quoted in

Ralston v. State, Child Support Enf't Div. ex rel. Wall, 728 P.2d 635 (Alaska 1986); Douglas v. State, Dep't of Revenue, 880 P.2d 113 (Alaska 1994).

Cited in

Department of Revenue, Child Support Enforcement Div. v. Leitch, 999 P.2d 782 (Alaska 2000); Glasen v. Glasen, 13 P.3d 719 (Alaska 2000).

Chapter 30. Uniform Child Custody Jurisdiction and Enforcement Act.

Cross references. —

For child custody generally, see AS 25.20.060 25.20.140 ; for judgments for custody in divorce actions, see AS 25.24.150 .

Editor’s notes. —

Under § 7, ch. 133, SLA 1998, “a motion or other request for relief that was made before September 23, 1998 is governed by the law in effect at the time the motion or other request was made if the motion or other request was made in a child custody proceeding or to enforce a child custody determination.”

Article 1. Jurisdiction.

Secs. 25.30.010 — 25.35.230. Uniform Child Custody Jurisdiction Act. [Repealed, § 4 ch 133 SLA 1998.]

Sec. 25.30.300. Initial child custody jurisdiction.

  1. Except as otherwise provided in AS 25.30.330 , a court of this state has jurisdiction to make an initial child custody determination only if
    1. this state is the home state of the child on the date of the commencement of the proceeding;
    2. this state was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
    3. a court of another state does not have jurisdiction under provisions substantially similar to (1) or (2) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under provisions substantially similar to AS 25.30.360 or 25.30.370 , and
      1. the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
      2. substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
    4. all courts having jurisdiction under the criteria specified in (1) — (3) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under provisions substantially similar to AS 25.30.360 or 25.30.370 ; or
    5. no court of another state would have jurisdiction under the criteria specified in (1) — (4) of this subsection.
  2. The provisions of (a) of this section are the exclusive jurisdictional bases for making a child custody determination by a court of this state.
  3. Physical presence of or personal jurisdiction over a party or a child is not necessary or sufficient to make a child custody determination.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Exclusive jurisdiction. —

Uniform Child Custody Jurisdiction and Enforcement Act, AS Title 25, Chapter 30, is consistent with the Parental Kidnapping Prevention Act, 28 U.S.C.S. § 1738A, and grants exclusive jurisdiction over child custody matters to the home state or recent home state. Atkins v. Vigil, 59 P.3d 255 (Alaska 2002).

Physical presence not required. —

CINA statutes govern proceedings relating to minors who are residents of Alaska regardless of whether the minor is physically present in Alaska, and the superior court’s findings that the boys retained their Alaska residency were not clearly erroneous where the mother’s only relevant evidence was her own testimony that she had gone to Edmonton, Canada with an intent to remain there. E.H. v. Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001).

Alaska court properly retained Uniform Child Custody Jurisdiction and Enforcement Act jurisdiction when the parties moved to other jurisdictions because (1) the court had initial jurisdiction, and (2) an inconvenient forum analysis did not require a transfer, which would cause a significant delay for the parties to obtain new counsel and a new court to become familiar with the case. Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Absence not permanent. —

Because the child’s father filed his Alaska custody petition six months and a few days after his child left Alaska for California to visit his maternal grandmother, and since the child’s absence from Alaska was not initially intended to be permanent, Alaska was the child’s home state within six months of start of custody case. Consequently, Alaska courts had jurisdiction to hear the custody petition. Atkins v. Vigil, 59 P.3d 255 (Alaska 2002).

Subject matter jurisdiction. —

Where child’s guardian had died, California courts had not named a replacement guardian, child had lived in Alaska for three years, and mother had physical custody of the child, California courts no longer had jurisdiction over the child, and the Alaska court had subject matter jurisdiction under AS 25.30.300(a)(1) to adjudicate the State’s petition to terminate the mother’s parental rights. S.B. v. State, 61 P.3d 6 (Alaska 2002).

Record showed that the child lived in Alaska when the mother filed her complaint for custody and that the child had lived in Alaska for approximately six years before the filing date; the superior court therefore had subject matter jurisdiction over the dispute. Barlow v. Thompson, 221 P.3d 998 (Alaska 2009).

In a child custody case, a superior court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act to hear and decide the case because Alaska was the home state of the children when their father commenced the action; the children lived in Alaska for exactly six months, and a mother did not appeal a decision from another state that vacated an earlier permanent restraining order, which had granted the mother custody. Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Superior court properly concluded that the father did not have a home state at the time he filed a divorce action where the majority of the evidence showed that the couple’s move to Mississippi was a permanent move, and thus, Alaska was not his home state, and the father had not lived in Mississippi for six months prior to filing the action. Norris v. Norris, 345 P.3d 924 (Alaska 2015).

Superior court did not have subject matter jurisdiction over a mother’s request for a divorce and child custody where at the time the father filed the Mississippi divorce action, the child and both his parents lived in Mississippi, the child had extended family in Mississippi, whom he saw regularly, he had a primary doctor and a daycare center that he attended, and he had a friend he played with and other children and adults he associated with at summer school. Norris v. Norris, 345 P.3d 924 (Alaska 2015).

Trial court properly exercised its jurisdiction when it determined child custody, as the wife and the child moved to Alaska more than six months before the proceedings began. Sherrill v. Sherrill, 373 P.3d 486 (Alaska 2016).

Quoted in

Berry v. Coulman, 440 P.3d 264 (Alaska 2019).

Cited in

B.B. v. D.D., 18 P.3d 1210 (Alaska 2001); Mikesell v. Waterman, 197 P.3d 184 (Alaska 2008); Barlow v. Thompson, 221 P.3d 998 (Alaska 2009); Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013); Theresa L. v. State, 353 P.3d 831 (Alaska 2015); Fox v. Grace, 435 P.3d 883 (Alaska 2018); Fox v. Grace, 435 P.3d 883 (Alaska 2018); Mouritsen v. Mouritsen, 459 P.3d 476 (Alaska 2020).

Collateral references. —

Construction and operation of Uniform Child Custody Jurisdiction and Enforcement Act, 100 ALR5th 1.

Sec. 25.30.310. Exclusive, continuing jurisdiction.

  1. Except as otherwise provided in AS 25.30.330 , a court of this state that has made a child custody determination consistent with AS 25.30.300 or 25.30.320 has exclusive, continuing jurisdiction over the determination until
    1. a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
    2. a court of this state or a court of another state determines that neither the child, nor a parent, nor a person acting as a parent presently resides in this state.
  2. A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under AS 25.30.300 .

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Jurisdiction retained. —

Even if Alaska did not have jurisdiction as the children’s home state, the superior court would still retain jurisdiction under former AS 25.30.020(a)(2) because the boys were present in Alaska and in need of aid on the day the state filed its petition for temporary custody. E.H. v. Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001).

Trial court had continuing, exclusive jurisdiction over a visitation dispute after entering an initial custody order, despite a Tennessee court’s temporary emergency custody order because substantial, relevant evidence concerning the dispute was present in Alaska, in the form of evidence of the subject child’s mother’s alleged drug use and home conditions. Steven D. v. Nicole J., 308 P.3d 875 (Alaska 2013).

Alaska court properly retained Uniform Child Custody Jurisdiction and Enforcement Act jurisdiction when the parties moved to other jurisdictions because (1) the court had initial jurisdiction, and (2) an inconvenient forum analysis did not require a transfer, which would cause a significant delay for the parties to obtain new counsel and a new court to become familiar with the case. Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Preliminary injunction denied. —

Superior court properly denied the divorced father’s request for a preliminary injunction to prevent the mother from leaving Alaska with their children; the father did not demonstrate a likelihood of success on the merits of his claim because Alaska law did not require a custodial parent to obtain permission from the non-custodial parent before moving out of state. The father still had the option of filing a motion to modify custody based on the change in circumstances because the superior court retained jurisdiction over the parties and their children despite the mother’s move. Misyura v. Misyura, 244 P.3d 519 (Alaska 2010).

Continuing jurisdiction. —

As used in the UCCJEA, the term “presently resides” was to be interpreted consistently with residency under Alaska law, AS 01.10.055 , as that interpretation furthered the stated purposes of the UCCJEA and made AS 25.30.310(a)(2) consistent with the Uniform Interstate Family Support Act. Thus, it was an error for the superior court to find that it no longer had exclusive, continuing jurisdiction under the UCCJEA based on the parties' physical presence in South Carolina. Mouritsen v. Mouritsen, 459 P.3d 476 (Alaska 2020).

Cited in

Fox v. Grace, 435 P.3d 883 (Alaska 2018); Fox v. Grace, 435 P.3d 883 (Alaska 2018).

Sec. 25.30.320. Jurisdiction to modify determination.

Except as otherwise provided in AS 25.30.330 , a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under AS 25.30.300(a)(1) , (2), or (3) and

  1. the court of the other state determines it no longer has exclusive, continuing jurisdiction under provisions substantially similar to AS 25.30.310 or that a court of this state would be a more convenient forum under provisions substantially similar to AS 25.30.360 ; or
  2. a court of this state or a court of the other state determines that neither the child, nor a parent, nor a person acting as a parent presently resides in the other state.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Jurisdiction not present. —

In a case where the father asked an Alaska court to modify an Ohio court’s order with respect to visitation of his children, superior court lacked jurisdiction to modify the orders under this section because the Ohio court had not relinquished exclusive jurisdiction and because the father still resided in Ohio. Robertson v. Riplett, 194 P.3d 382 (Alaska 2008).

Because the requirements of this section were not met, the superior court correctly held that it lacked jurisdiction to modify the Turkish court custody determination. Christensen v. Seckin, 486 P.3d 181 (Alaska 2021).

Jurisdiction not considered. —

Superior court erred in not considering whether it had subject matter jurisdiction under AS 25.30.320 (2) where it apparently had not considered the father's assertion that no child, parent, or person acting as a parent lived in Oregon or his argument that a child-parent relationship under Oregon law was distinct from a person acting as a parent under Alaska law. Fox v. Grace, 435 P.3d 883 (Alaska 2018).

Cited in

Norris v. Norris, 345 P.3d 924 (Alaska 2015); Mouritsen v. Mouritsen, 459 P.3d 476 (Alaska 2020).

Sec. 25.30.330. Temporary emergency jurisdiction.

  1. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
  2. If there is no previous child custody determination that is entitled to be enforced under this chapter and if a child custody proceeding has not been commenced in a court of a state having jurisdiction under provisions substantially similar to AS 25.30.300 25.30.320 , a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under AS 25.30.300 25.30.320 or provisions substantially similar to AS 25.30.300 — 25.30.320. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under AS 25.30.300 — 25.30.320 or provisions substantially similar to AS 25.30.300 — 25.30.320, a child custody determination made under this section becomes a final determination if it so provides and this state becomes the home state of the child.
  3. If there is a previous child custody determination that is entitled to be enforced under this chapter or a child custody proceeding has been commenced in a court of a state having jurisdiction under AS 25.30.300 25.30.320 or provisions substantially similar to AS 25.30.300 25.30.320 , an order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under AS 25.30.300 — 25.30.320 or provisions substantially similar to AS 25.30.300 — 25.30.320. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.
  4. A court of this state that has been asked to make a child custody determination under this section, on being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under AS 25.30.300 25.30.320 or provisions substantially similar to AS 25.30.300 25.30.320 shall immediately communicate with the other court. A court of this state that is exercising jurisdiction under AS 25.30.300 — 25.30.320, on being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute substantially similar to this section, shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Cited in

E.H. v. Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001); S.B. v. State, 61 P.3d 6 (Alaska 2002); Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Collateral references. —

Emergency jurisdiction of court under §§ 3(a)(3)(ii) and 14(a) of Uniform Child Custody Jurisdiction Act and Parental Kidnapping Prevention Act, 28 U.S.C.A. §§ 1738A(c)(2)(C)(ii) and 1738A(f), to protect interests of child notwithstanding existence of prior, valid custody decree rendered by another state, 80 ALR5th 117.

Appealability of interlocutory or pendente lite order for temporary child custody, 82 ALR5th 389.

Sec. 25.30.340. Notice; opportunity to be heard; joinder.

  1. Before a child custody determination is made under this chapter, notice and an opportunity to be heard in accordance with AS 25.30.840 shall be given to all persons entitled to notice under the law of this state as in child custody proceedings between residents of this state, a parent whose parental rights have not been previously terminated, and a person having physical custody of the child.
  2. This chapter does not govern the enforceability of a child custody determination made without notice or an opportunity to be heard.
  3. The obligation to join a party and the right to intervene as a party in a child custody proceeding under this chapter are governed by the law of this state as in child custody proceedings between residents of this state.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.350. Simultaneous proceedings.

  1. Except as otherwise provided in AS 25.30.330 , a court of this state may not exercise its jurisdiction under AS 25.30.300 25.30.390 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been previously commenced in a court of another state having jurisdiction substantially in conformity with this chapter unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under provisions substantially similar to AS 25.30.360 .
  2. Except as otherwise provided in AS 25.30.330 , a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties under AS 25.30.380 . If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding.
  3. In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may
    1. stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement;
    2. enjoin the parties from continuing with the proceeding for enforcement; or
    3. proceed with the modification under conditions it considers appropriate.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.360. Inconvenient forum.

  1. A court of this state that has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised on motion of a party, the court’s own motion, or request of another court.
  2. Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including
    1. whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
    2. the length of time the child has resided outside this state;
    3. the distance between the court in this state and the court in the state that would assume jurisdiction;
    4. the relative financial circumstances of the parties;
    5. an agreement of the parties as to which state should assume jurisdiction;
    6. the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
    7. the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
    8. the familiarity of the court of each state with the facts and issues in the pending litigation.
  3. If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
  4. A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Decision is discretionary. —

The decision to decline jurisdiction if the court is an inconvenient forum is a discretionary one. Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982) (decided under former AS 25.30.060).

Reasons must be stated. —

It is error for a court to deny an inconvenient forum motion brought under this section without articulating its reasoning. Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982) (decided under former AS 25.30.060).

Factors in determining forum non conveniens. —

Trial court did not abuse discretion in granting mother’s motion to decline jurisdiction on the basis of forum non conveniens under paragraphs (b)(2), (b)(4), and (b)(6); although the child had resided in Alaska for a year when the father petitioned for custody, she had spent most of her life residing in either Arizona or New Mexico, evidence established that the father was in a superior financial position where he was able to retain his own counsel and the mother was represented by legal aid in New Mexico, and members of the mother’s and father’s families lived in New Mexico and were to be called as witnesses in determining the custody issue. Mikesell v. Waterman, 197 P.3d 184 (Alaska 2008).

It was not an abuse of discretion for a trial court which had entered an initial custody order to decline to cede jurisdiction over a visitation dispute to a Tennessee court on forum non conveniens grounds because it was apparent from the record that the trial court considered the relevant statutory factor. Steven D. v. Nicole J., 308 P.3d 875 (Alaska 2013).

District court should not have ceded its jurisdiction to Texas based on a finding that evidence about the children's current status was located there; trial court minimized the importance of protecting the children from the father's alleged domestic violence and the evidence required to resolve domestic violence and Indian Child Welfare Act issues. Inter alia, Alaska law had a presumption against awarding custody to a parent who was the perpetrator of domestic violence, and evidence relating to social and cultural standards, as well as testimony from a qualified expert, was located in Alaska. Rice v. McDonald, 390 P.3d 1133 (Alaska 2017).

Alaska court properly retained Uniform Child Custody Jurisdiction and Enforcement Act jurisdiction when the parties moved to other jurisdictions because (1) the court had initial jurisdiction, and (2) an inconvenient forum analysis did not require a transfer, which would cause a significant delay for the parties to obtain new counsel and a new court to become familiar with the case. Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Consideration of timing of motion. —

It is not improper for a court to consider the timing of an inconvenient forum motion as it considers the location of necessary evidence, where a party waited until the day of trial to raise inconvenient forum concerns, and that party, the children, and an expert witness had flown to Alaska for the trial. Pinneo v. Pinneo, 835 P.2d 1233 (Alaska 1992) (decided under former AS 25.30.060).

Designation of state that will assume jurisdiction. —

When a court declines to exercise its jurisdiction by its own motion, it must designate a specific state which will assume jurisdiction. Waller v. Richardson, 757 P.2d 1036 (Alaska 1988) (decided under former AS 25.30.060).

The trial court may consider all facts up to the date of the motion or hearing when ruling on an inconvenient forum motion. Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982) (decided under former AS 25.30.060).

Contact with state. —

In ruling on inconvenient forum motion, it is not the state that has accumulated a longer duration of contact with the child which is dispositive; rather, the inquiry must be into which state has the closer connection with the child. Szmyd v. Szmyd, 641 P.2d 14 (Alaska 1982) (decided under former AS 25.30.060).

Too much weight assigned to location of evidence of change in circumstances. —

Assigning too much weight to the location of evidence of the custodial parent’s changed circumstances was an abuse of discretion, where the child had been living in Alaska with the noncustodial parent for over seven months just prior to commencement of the proceedings and had expressed a desire to have custody changed. Waller v. Richardson, 757 P.2d 1036 (Alaska 1988) (decided under former AS 25.30.060).

Child’s best interests. —

Where Alaska was the child’s home state when the child custody proceeding was commenced, and every relevant statutory factor pointed to Alaska as the most convenient forum, the superior court erred in basing its decision to decline jurisdiction exclusively on which party it felt would be more inconvenienced by the requisite travel to a non-local forum. Rogers v. Rogers, 907 P.2d 469 (Alaska 1995) (decided under former AS 25.30.060).

While the relative hardship in appearing in non-local forums is a relevant consideration, the central focus of any forum non conveniens inquiry is which forum is best in light of the child’s best interest. Rogers v. Rogers, 907 P.2d 469 (Alaska 1995) (decided under former AS 25.30.060).

Quoted in

Rexford v. Rexford, 631 P.2d 475 (Alaska 1980).

Cited in

E.H. v. Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001); Fox v. Grace, 435 P.3d 883 (Alaska 2018); Mouritsen v. Mouritsen, 459 P.3d 476 (Alaska 2020).

Sec. 25.30.370. Jurisdiction declined because of conduct.

  1. Except as otherwise provided in AS 25.30.330 , if a court of this state has jurisdiction under this chapter because a person invoking the jurisdiction has engaged in wrongful conduct, the court shall decline to exercise its jurisdiction unless
    1. the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;
    2. a court of the state otherwise having jurisdiction under AS 25.30.300 25.30.320 determines that this state is a more appropriate forum under provisions substantially similar to AS 25.30.360 ; or
    3. no court of another state would have jurisdiction under the criteria specified in AS 25.30.300 25.30.320 .
  2. If a court of this state declines to exercise its jurisdiction under (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the wrongful conduct, including staying the proceeding, until a child custody proceeding is commenced in a court having jurisdiction under provisions substantially similar to AS 25.30.300 25.30.320 .
  3. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under (a) of this section, that court shall assess against the party seeking to invoke its jurisdiction necessary and reasonable expenses, including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party against whom the assessment is sought establishes that the assessment would be clearly inappropriate. The court may not assess fees, costs, or expenses against this state unless authorized by law other than this chapter.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

For conduct to be wrongful or similarly reprehensible, it is not necessary that a child be taken in violation of an outstanding order or decree, nor is it a defense that no order or decree has been entered. It is sufficient when the conduct is “so objectionable that a court cannot in good conscience permit the party access to its jurisdiction.” Stokes v. Stokes, 751 P.2d 1363 (Alaska 1988) (decided under former AS 25.30.070).

The same reprehensibility standard applies to situations governed by subsections (a) and (b); thus, the standard as set forth in Stokes v. Stokes, 751 P.2d 1363 (Alaska 1988), applied in a proceeding for modification of custody decree of another state. Jones v. Jones, 925 P.2d 1339 (Alaska 1996) (decided under former AS 25.30.070).

Father did not “wrongfully” transport the children from Washington to Virginia where custody proceedings were not instituted until after he had returned to Virginia; at the time he left Washington with the children no court had taken jurisdiction over the dispute and both parents were equally entitled to custody. Morgan v. Morgan, 666 P.2d 1026 (Alaska 1983) (decided under former AS 25.30.070).

Time for motion for attorney’s fees. —

A party moving for attorney’s fees under subsection (c) was required to file a motion within ten days following the trial court’s final disposition of the controlling custody issue, unless the trial court granted additional time. Jones v. Jones, 925 P.2d 1339 (Alaska 1996) (decided under former AS 25.30.070).

Even though it was filed more than two months after the disposition of the underlying custody issue, the court did not abuse its discretion in considering a motion for attorney’s fees to have been timely where, at the time, custody cases could reasonably be construed as exempt from former Civil Rule 82 which required filing within ten days, and where the custody order had provided that the mother could “move for costs and attorney’s fees.” Jones v. Jones, 925 P.2d 1339 (Alaska 1996) (decided under former AS 25.30.070).

Necessity of findings. —

Award of full attorney’s fees to the nonpetitioning party requires court findings that petitioner’s conduct was reprehensible from the time the Alaska proceedings were commenced. Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983) (decided under former AS 25.30.070).

The trial court’s finding that the father “wrongfully withheld/retained the children after a visitation” was sufficient to support an award of attorney’s fees to the mother. Jones v. Jones, 925 P.2d 1339 (Alaska 1996) (decided under former AS 25.30.070).

Sec. 25.30.380. Information to be submitted to court.

  1. Subject to a contravening court order, in a child custody proceeding, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit must state whether the party
    1. has participated, as a party or witness or in another capacity, in another proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any;
    2. knows of a proceeding that could affect the current proceeding, including a proceeding for enforcement and a proceeding relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and
    3. knows the names and addresses of a person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the names and addresses of those persons.
  2. If the information required by (a) of this section is not furnished, the court, on motion of a party or its own motion, may stay the proceeding until the information is furnished.
  3. If the declaration as to an item described in (a)(1) — (3) of this section is in the affirmative, the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and other matters pertinent to the court’s jurisdiction and the disposition of the case.
  4. Each party has a continuing duty to inform the court of a proceeding in this state or in another state that could affect the current proceeding.
  5. If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of identifying information, the information shall be sealed and may not be disclosed to the other party or the public unless the court orders the disclosure to be made after a hearing in which the court takes into consideration the health, safety, or liberty of the party or child and determines that the disclosure is in the interest of justice.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Pending actions. —

Mother of two Indian children killed their father, and the maternal grandparents’ 2004 custody petition alleged that there was no pending action regarding the children in any court, other than 2003 guardianship cases; the paternal grandparents’ answer did not mention any tribal council proceedings, and did not deny the truth of the assertions in the custody petition. In accordance with Alaska R. Civ. P. 8, the paternal grandparents’ answer in the custody case was deemed to have admitted there were no other proceedings dealing with the children. Starr v. George, 175 P.3d 50 (Alaska 2008).

Sec. 25.30.390. Appearance of parties and child.

  1. In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court personally with or without the child. The court may order a person who is in this state and who has physical custody or control of the child to appear in person with the child.
  2. If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given under AS 25.30.840 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
  3. The court may enter orders necessary to ensure the safety of the child and of a person ordered to appear under this section.
  4. If a party to a child custody proceeding who is outside this state is directed to appear under (b) of this section or desires to appear in person before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Cited in

Yelena R. v. George R., 326 P.3d 989 (Alaska 2014).

Article 2. Enforcement.

Sec. 25.30.400. Enforcement under the Hague Convention.

Under AS 25.30.400 25.30.590 , a court of this state may enforce an order for the return of a child made under the Hague Convention on the Civil Aspects of International Child Abduction as if the order were a child custody determination.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.410. Duty to enforce.

  1. A court of this state shall recognize and enforce a child custody determination of a court of another state if the court of the other state exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional standards of this chapter and the determination has not been modified in accordance with this chapter.
  2. A court of this state may use a remedy available under other law of this state to enforce a child custody determination made by a court of another state. The procedure provided by AS 25.30.400 25.30.590 does not affect the availability of other remedies to enforce a child custody determination.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

It was appropriate for Alaska to defer to California’s exercise of jurisdiction over the custody dispute where it appeared that California was exercising jurisdiction substantially in conformity with the Uniform Act under the “significant connections” basis of jurisdiction since the basis of jurisdiction, although not available in Alaska, was consistent with the purpose of the federal act and was identical to provisions contained therein. Kimmons v. Heldt, 667 P.2d 1245 (Alaska 1983) (decided under former AS 25.30.120).

Sec. 25.30.420. Temporary visitation.

  1. A court of this state that does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing
    1. a visitation schedule made by a court of another state; or
    2. the visitation provisions of a child custody determination of another state that does not provide for a specific visitation schedule.
  2. If a court of this state makes an order under (a)(2) of this section, it shall specify in the order a period that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction under the criteria specified in AS 25.30.300 25.30.390 . The order remains in effect until an order is obtained from the other court or the period expires.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.430. Registration of child custody determination.

  1. A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state
    1. a letter or other document requesting registration;
    2. two copies, including one certified copy, of the determination sought to be registered and a statement, under penalty of perjury, that to the best knowledge and belief of the person seeking registration the order has not been modified; and
    3. except as otherwise provided in AS 25.30.380 , the name and address of the person seeking registration and the parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
  2. On receipt of the documents required by (a) of this section, the registering court shall
    1. cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
    2. serve notice on the persons named under (a)(3) of this section and provide them with an opportunity to contest the registration under this section.
  3. The notice required by (b)(2) of this section must state that
    1. a registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
    2. a hearing to contest the validity of the registered determination must be requested within 20 days after service of notice; and
    3. failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to a matter that could have been asserted.
  4. A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that
    1. the issuing court did not have jurisdiction under provisions substantially similar to AS 25.30.300 25.30.390 ;
    2. the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under provisions substantially similar to AS 25.30.300 25.30.390 ; or
    3. the person contesting registration was entitled to notice, but notice was not given in accordance with provisions substantially similar to AS 25.30.840 in the proceedings before the court that issued the order for which registration is sought.
  5. If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law, and the person requesting registration and all persons served must be notified of the confirmation.
  6. Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to a matter that could have been asserted at the time of registration.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Waiver. —

Where mother consented to the registration of South Carolina custody orders in Alaska, she was barred from contesting those orders on grounds of lack of jurisdiction and notice. Under plain error review, the South Carolina orders did not appear obviously void or plainly beyond that court’s jurisdiction. Katz v. Murphy, 165 P.3d 649 (Alaska 2007).

Sec. 25.30.440. Enforcement of registered determination.

  1. A court of this state may grant relief normally available under the law of this state to enforce a registered child custody determination made by a court of another state.
  2. A court of this state shall recognize and enforce, but may not modify except in accordance with AS 25.30.300 25.30.390 , a registered child custody determination of a court of another state.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.450. Simultaneous proceedings.

If a proceeding for enforcement under AS 25.30.400 25.30.590 is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under provisions substantially similar to AS 25.30.400 25.30.590 , the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.460. Expedited enforcement of child custody determination.

  1. A petition under AS 25.30.400 25.30.590 must be verified. A certified copy, or a copy of a certified copy, of the orders sought to be enforced and of an order, if any, confirming registration must be attached to the petition.
  2. A petition for enforcement of a child custody determination must state
    1. whether the court that issued the determination identified the jurisdictional basis it relied on in exercising jurisdiction and, if so, what the basis was;
    2. whether the determination for which enforcement is sought has been vacated, stayed, or modified by a court whose decision must be enforced under this chapter and, if so, must identify the court, the case number, and the nature of the proceeding;
    3. whether a proceeding has been commenced that could affect the current proceeding, including proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, must identify the court, the case number, and the nature of the proceeding;
    4. the present physical address of the child and the respondent, if known;
    5. whether relief in addition to the immediate physical custody of the child and attorney fees is sought, including a request for assistance from law enforcement officials and, if so, the relief sought; and
    6. if the child custody determination has been registered and confirmed under AS 25.30.430 , the date and place of registration.
  3. On the filing of a petition, the court shall issue an order directing the respondent to appear in person with or without the child at a hearing and may enter an order necessary to ensure the safety of the parties and the child. The hearing must be held on the next judicial day after service of the order unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The court may extend the date of hearing at the request of the petitioner.
  4. An order issued under (c) of this section must state the time and place of the hearing and advise the respondent that, at the hearing, the court will order that the petitioner may take immediate physical custody of the child and the payment of fees, costs, and expenses under AS 25.30.500 and may schedule a hearing to determine whether further relief is appropriate unless the respondent appears and establishes that
    1. the child custody determination has not been registered and confirmed under AS 25.30.430 , and that
      1. the issuing court did not have jurisdiction under provisions substantially similar to AS 25.30.300 25.30.390 ;
      2. the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under provisions substantially similar to AS 25.30.300 25.30.390 ; or
      3. the respondent was entitled to notice, but notice was not given in accordance with provisions substantially similar to AS 25.30.840 in the proceedings before the court that issued the order for which enforcement is sought; or
    2. the child custody determination for which enforcement is sought was registered and confirmed under AS 25.30.430 but has been vacated, stayed, or modified by a court having jurisdiction to do so under provisions substantially similar to AS 25.30.300 — 25.30.390.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Ex parte order obtained in violation of UCCJEA. —

Ex parte order granting the father immediate custody and enabling him to remove his son from Alaska before the mother received notice violated this chapter because the father’s pleadings failed to comply with the Act’s requirements, including the form of notice, the father failed to cite any specific provision of Alaska law supporting the relief he requested, and his application for ex parte relief articulated an improper standard for granting relief, as the father did not allege any potentially serious physical harm to his son and did not claim or purport to show any immediate likelihood that the mother would remove the son from Alaska. Katz v. Murphy, 165 P.3d 649 (Alaska 2007).

Sec. 25.30.470. Service of petition and order.

Except as otherwise provided in AS 25.30.490 , the petition and order shall be served, by a method authorized by the law of this state, on the respondent and a person who has physical custody of the child.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.480. Hearing and order.

  1. Unless the court issues a temporary emergency order under AS 25.30.330 , on a finding that a petitioner is entitled to immediate physical custody of the child, the court shall order that the petitioner may take immediate physical custody of the child unless the respondent establishes that
    1. the child custody determination has not been registered and confirmed under AS 25.30.430 and that
      1. the issuing court did not have jurisdiction under provisions substantially similar to AS 25.30.300 25.30.390 ;
      2. the child custody determination for which enforcement is sought has been vacated, stayed, or modified by a court having jurisdiction to do so under AS 25.30.300 25.30.390 or provisions substantially similar to AS 25.30.300 — 25.30.390; or
      3. the respondent was entitled to notice, but notice was not given in accordance with AS 25.30.840 or provisions substantially similar to AS 25.30.300 — 25.30.390 in the proceedings before the court that issued the order for which enforcement is sought; or
    2. the child custody determination for which enforcement is sought was registered and confirmed under AS 25.30.430 but has been vacated, stayed, or modified by a court having jurisdiction to do so under AS 25.30.300 — 25.30.390 or provisions substantially similar to AS 25.30.300 — 25.30.390.
  2. The court shall award the fees, costs, and expenses authorized under AS 25.30.500 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.
  3. If a party called to testify refuses to answer on the ground that the testimony may be self-incriminating, the court may draw an adverse inference from the refusal.
  4. A privilege against disclosure of communications between spouses and a defense of immunity based on the relationship of husband and wife or parent and child may not be invoked in a proceeding under AS 25.30.400 25.30.590 .

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Ex parte order obtained in violation of UCCJEA. —

Ex parte order, granting the father immediate custody and enabling him to remove his son from Alaska before the mother received notice violated this chapter because the father’s pleadings failed to comply with the Act’s requirements, including the form of notice, the father failed to cite any specific provision of Alaska law supporting the relief he requested, and his application for ex parte relief articulated an improper standard for granting relief, as the father did not allege any potentially serious physical harm to his son and did not claim or purport to show any immediate likelihood that the mother would remove the son from Alaska. Katz v. Murphy, 165 P.3d 649 (Alaska 2007).

Sec. 25.30.490. Warrant to take physical custody of child.

  1. On the filing of a petition seeking enforcement of a child custody determination, the petitioner may file a verified application for the issuance of a warrant to take physical custody of the child if the child is imminently likely either to suffer serious physical harm or to be removed from this state.
  2. If the court, on the testimony of the petitioner or other witness, finds that the child is imminently likely to suffer serious physical harm or to be removed from this state, it may issue a warrant to take physical custody of the child. The petition must be heard on the next judicial day after the warrant is executed unless that date is impossible. In that event, the court shall hold the hearing on the first judicial day possible. The application for the warrant must include the statements required for petitions under AS 25.30.460(b) .
  3. A warrant to take physical custody of a child must
    1. recite the facts on which a conclusion of imminent serious physical harm or removal from the state is based;
    2. direct law enforcement officers to take physical custody of the child immediately; and
    3. provide for the placement of the child pending final relief.
  4. The respondent must be served with the petition, warrant, and order immediately after the child is taken into physical custody.
  5. A warrant to take physical custody of a child is enforceable throughout this state. If the court finds on the basis of the testimony of the petitioner or other witness that a less intrusive remedy is not effective, it may authorize law enforcement officers to enter private property to take physical custody of the child. If required by exigent circumstances, the court may authorize law enforcement officers to make a forcible entry at any hour.
  6. The court may impose conditions on placement of a child to ensure the appearance of the child and the child’s custodian.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Ex parte order obtained in violation of UCCJEA. —

Ex parte order granting the father immediate custody and enabling him to remove his son from Alaska before the mother received notice violated Alaska’s Uniform Child Custody and Jurisdiction Enforcement Act because the father’s pleadings failed to comply with the Act’s requirements. Katz v. Murphy, 165 P.3d 649 (Alaska 2007).

Sec. 25.30.500. Costs, fees, and expenses.

  1. To the extent authorized by court rules, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney fees, investigative fees, expenses for witnesses, travel expenses, and child care expenses incurred during the course of the proceedings, unless the party from whom costs, fees, or expenses are sought establishes that the award would be clearly inappropriate.
  2. The court may not assess costs, fees, or expenses against a state unless authorized by law other than this chapter or by court rule.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Application of section. —

Under the Uniform Child Custody Jurisdiction and Enforcement Act, AS 25.30.300 25.30.910 , a trial court could award attorney fees against a couple who unsuccessfully challenged the mother’s attempt to enforce a child custody order entered after the mother revoked her consent to adoption; subsection (a) of this section means a full award of reasonable, actual fees. Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006).

When a mother was awarded attorney's fees which she incurred in retrieving her children, remand was necessary because, without findings by the superior court explaining why the mother's actual incurred expenses were unnecessary or unreasonable or whether the father otherwise established that it was clearly inappropriate to make a full award, the appellate court was not able to meaningfully determine whether the award was within the court's discretion. Eldemar v. Weissmuller, — P.3d — (Alaska June 19, 2019) (memorandum decision).

Construction of section with rule. —

Award under Alaska R. Civ. P. 82 may be increased to encompass full reasonable fees in cases where a non-prevailing party has engaged in bad faith conduct or pursued frivolous claims or defenses; where statutes call for an award of reasonable attorney’s fees to a prevailing party, reasonable actual fees are intended rather than reasonable partial fees as would be the case under Rule 82; subsection (a) of this section requires the award of full reasonable attorney’s fees. Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006).

Sec. 25.30.510. Recognition and enforcement.

A court of this state shall give full faith and credit to an order issued by another state consistent with this chapter if the order enforces a child custody determination by a court of another state unless the order has been vacated, stayed, or modified by a court having jurisdiction to do so under AS 25.30.300 25.30.390 or provisions substantially similar to AS 25.30.300 25.30.390 .

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.520. Appeals.

An appeal taken from a final order in a proceeding under AS 25.30.400 25.30.590 shall be given calendar priority to the extent allowed for other civil appellate cases and shall be handled expeditiously. Unless the court enters a temporary emergency order under AS 25.30.330 , the enforcing court may not stay an order enforcing a child custody determination pending appeal.

History. (§ 2 ch 133 SLA 1998)

Cross references. —

For the effect of this section on court rules, see § 6, ch. 133, SLA 1998 in the 1998 Temporary and Special Acts.

Sec. 25.30.590. Definitions.

In AS 25.30.400 25.30.590 ,

  1. “petitioner” means a person who seeks enforcement of an order for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination;
  2. “respondent” means a person against whom a proceeding has been commenced for enforcement of an order for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction or enforcement of a child custody determination.

History. (§ 2 ch 133 SLA 1998)

Article 3. Miscellaneous Provisions.

Sec. 25.30.800. Proceedings governed by other law.

  1. This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child.
  2. A child custody proceeding that pertains to an Indian child as defined in 25 U.S.C. 1901 — 1963 (Indian Child Welfare Act) is not subject to this chapter to the extent that it is governed by 25 U.S.C. 1901 — 1963 (Indian Child Welfare Act).

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.810. International application of chapter.

  1. A court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying AS 25.30.400 25.30.590 .
  2. Except as provided in (c) of this section, a child custody determination made in a foreign country under factual circumstances in substantial conformity with the jurisdictional standards of this chapter shall be recognized and enforced under AS 25.30.400 25.30.590 .
  3. A court of this state is not required to apply this chapter to a child custody determination made in a foreign country when the child custody law of the other country violates fundamental principles of human rights.

History. (§ 2 ch 133 SLA 1998)

Collateral references. —

Applicability and application of Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to international child custody and support actions, 66 ALR6th 269.

Sec. 25.30.820. Effect of child custody determination.

A child custody determination made by a court of this state that had jurisdiction under this chapter binds all persons who have been served notice under Rule 4, Alaska Rules of Civil Procedure, who have been notified under AS 25.30.840 , or who have submitted to the jurisdiction of the court, and who have been given an opportunity to be heard. As to those persons, the determination is conclusive as to all decided issues of law and fact except to the extent the determination is modified.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.830. Priority.

If a question of existence or exercise of jurisdiction under this chapter is raised in a child custody proceeding, the question, on request of a party, shall be given priority on the calendar and handled expeditiously.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.840. Notice to persons outside the state.

  1. Notice required for the exercise of jurisdiction when a person is outside this state may be given under Rule 4, Alaska Rules of Civil Procedure, or in a manner prescribed by the law of the state in which the service is made. Notice shall be given in a manner reasonably calculated to give actual notice but may be by publication if other means are not effective.
  2. Proof of service may be made under Rule 4, Alaska Rules of Civil Procedure, or in the manner prescribed by the law of the state in which the service is made.
  3. Notice is not required for the exercise of jurisdiction with respect to a person who submits to the jurisdiction of the court.

History. (§ 2 ch 133 SLA 1998)

Cross references. —

For the effect of this section on court rules, see § 5, ch. 133, SLA 1998 in the 1998 Temporary and Special Acts.

Sec. 25.30.850. Appearance and limited immunity.

  1. A party to a child custody proceeding, including a modification proceeding, or a petitioner or respondent in a proceeding to enforce or register a child custody determination is not subject to personal jurisdiction in this state for another proceeding or purpose solely because of having participated, or having been physically present for the purpose of participating, in the proceeding.
  2. A party who is subject to personal jurisdiction in this state on a basis other than physical presence is not immune from service of process in this state. A party present in the state who is subject to the jurisdiction of another state is not immune from service of process allowable under the laws of that state.
  3. The immunity granted by (a) of this section does not extend to civil litigation based on acts unrelated to the participation in a proceeding under this chapter committed by an individual while present in this state.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.860. Communication between courts.

  1. A court of this state may communicate with a court in another state concerning a proceeding arising under this chapter.
  2. The court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they shall be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made.
  3. Communication between courts on schedules, calendars, court records, and similar matters may occur without informing the parties, and a record need not be made of the communication.
  4. Except as provided in (c) of this section, a record shall be made of a communication under this section. The parties must be informed promptly of the communication and granted access to the record.
  5. In this section, “record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.870. Taking testimony in another state.

  1. In addition to other procedures available to a party, a party to a child custody proceeding may offer testimony of witnesses who are located in another state, including testimony of the parties and the child, by deposition or other means allowable in this state for testimony taken in another state. The court on its own motion may order that the testimony of a person be taken in another state and may prescribe the manner in which and the terms on which the testimony is taken.
  2. A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. A court of this state shall cooperate with courts of other states in designating an appropriate location for the deposition or testimony.
  3. Documentary evidence transmitted from another state to a court of this state by technological means that do not produce an original writing may not be excluded from evidence on an objection based on the means of transmission.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.880. Cooperation between courts; preservation of records.

  1. A court of this state may request the appropriate court of another state to
    1. hold an evidentiary hearing;
    2. order a person to produce or give evidence under procedures of that state;
    3. order that an evaluation be made with respect to the custody of a child involved in a pending proceeding;
    4. forward to the court of this state a certified copy of the transcript of the record of the hearing, the evidence otherwise presented, and any evaluation prepared in compliance with the request; and
    5. order a party to a child custody proceeding or a person having physical custody of the child to appear in the proceeding with or without the child.
  2. On request of a court of another state, a court of this state may hold a hearing or enter an order described in (a) of this section.
  3. Travel and other necessary and reasonable expenses incurred under (a) and (b) of this section may be assessed against the parties according to the law of this state.
  4. A court of this state shall preserve the pleadings, orders, decrees, records of hearings, evaluations, and other pertinent records with respect to a child custody proceeding until the child attains 18 years of age. On appropriate request by a court or law enforcement official of another state, the court shall forward a certified copy of these records.

History. (§ 2 ch 133 SLA 1998)

Article 4. General Provisions.

Sec. 25.30.900. Definitions. [Repealed, § 4 ch 133 SLA 1998.]

Sec. 25.30.901. Application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact laws substantially similar.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.903. Severability clause.

If a provision of this chapter or its application to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter that can be given effect without the invalid provision or application, and, to this end, the provisions of this chapter are severable.

History. (§ 2 ch 133 SLA 1998)

Sec. 25.30.909. Definitions.

In this chapter,

  1. “abandoned” means left without provision for reasonable and necessary care or supervision;
  2. “child” means an individual who has not attained 18 years of age;
  3. “child custody determination” means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child, including a permanent, temporary, initial, and modification order, except that the term does not include an order relating to child support or other monetary obligation of an individual;
  4. “child custody proceeding” means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue, including a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence in which the issue may appear, except that the term does not include a proceeding involving juvenile delinquency, contractual emancipation, or enforcement under AS 25.30.400 25.30.590 or provisions substantially similar to AS 25.30.400 25.30.590 ;
  5. “commencement” means the filing of the first pleading in a proceeding;
  6. “court” means an entity authorized under the law of a state to establish, enforce, or modify a child custody determination;
  7. “home state” means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months, including any temporary absences of the child or parent or person acting as a parent, immediately before the commencement of a child custody proceeding, except that, in the case of a child who is less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned, including any temporary absences;
  8. “initial determination” means the first child custody determination concerning a particular child;
  9. “issuing court” means the court that makes a child custody determination for which enforcement is sought under this chapter;
  10. “issuing state” means the state in which a child custody determination is made;
  11. “modification” means a child custody determination that changes, replaces, supersedes, or is otherwise made after a previous determination concerning the same child, whether or not it is made by the court that made the previous determination;
  12. “person” means a natural person, a corporation, a business trust, an estate, a trust, a partnership, a limited liability company, an association, a joint venture, a government or a governmental subdivision, an agency, an instrumentality, a public corporation, or any other legal or commercial entity;
  13. “person acting as a parent” means a person, other than a parent, who
    1. has physical custody of a child or has had physical custody for a period of six consecutive months, including temporary absence, within one year immediately before the commencement of a child custody proceeding; and
    2. has been awarded legal custody by a court or claims a right to legal custody under the law of this state;
  14. “physical custody” means the physical care and supervision of a child;
  15. “state” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or a territory or insular possession subject to the jurisdiction of the United States;
  16. “warrant” means an order issued by a court authorizing law enforcement officers to take physical custody of a child.

History. (§ 2 ch 133 SLA 1998)

Notes to Decisions

Home state. —

Where the child’s mother agreed to make her son’s absence from Alaska permanent, rather than merely visitation with the child’s maternal grandmother, only after the son had been in California for a significant period of time, the trial court was required to include the temporary absence time period in assessing whether the son lived in Alaska within six months of the commencement of the father’s child custody proceeding in Alaska. Atkins v. Vigil, 59 P.3d 255 (Alaska 2002).

Superior court had jurisdiction to hear a custody matter because Alaska was the children’s “home state” under AS 25.30.909 (7); the mother and children had moved to Alaska more than 17 months before the custody proceedings commenced. Ronny M. v. Nanette H., 303 P.3d 392 (Alaska 2013).

Superior court properly concluded that the father did not have a home state at the time he filed a divorce action where the majority of the evidence showed that the couple’s move to Mississippi was a permanent move, and thus, Alaska was not his home state, and the father had not lived in Mississippi for six months prior to filing the action. Norris v. Norris, 345 P.3d 924 (Alaska 2015).

Continuing jurisdiction. —

Alaska court properly retained Uniform Child Custody Jurisdiction and Enforcement Act jurisdiction when the parties moved to other jurisdictions because (1) the court had initial jurisdiction, and (2) an inconvenient forum analysis did not require a transfer, which would cause a significant delay for the parties to obtain new counsel and a new court to become familiar with the case. Roman v. Karren, 461 P.3d 1252 (Alaska 2020).

Applied in

Platz v. Aramburo, 17 P.3d 65 (Alaska 2001); E.H. v. Dep't of Health & Soc. Servs., 23 P.3d 1186 (Alaska 2001).

Quoted in

Fox v. Grace, 435 P.3d 883 (Alaska 2018); Fox v. Grace, 435 P.3d 883 (Alaska 2018).

Cited in

S.B. v. State, 61 P.3d 6 (Alaska 2002); Pam R. v. State, 185 P.3d 67 (Alaska 2008); Mikesell v. Waterman, 197 P.3d 184 (Alaska 2008); Mouritsen v. Mouritsen, 459 P.3d 476 (Alaska 2020).

Sec. 25.30.910. Short title.

This chapter may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act.

History. (§ 1 ch 61 SLA 1977; am § 3 ch 133 SLA 1998)

Cited in

Fox v. Grace, 435 P.3d 883 (Alaska 2018).

Chapter 35. Domestic Violence.

Secs. 25.35.010 — 25.35.050. Injunctive relief in cases involving domestic violence. [Repealed, § 72 ch 64 SLA 1996. For current law, see AS 18.66.100 — 18.66.180.]

Sec. 25.35.060. [Renumbered as AS 25.35.200.]

Secs. 25.35.100 — 25.35.150. [Renumbered as AS 18.66.200 — 18.66.250.]

Sec. 25.35.200. Definition. [Repealed, § 72 ch 64 SLA 1996.]

Chapter 90. General Provisions.

Sec. 25.90.010. Definitions.

In this title, “domestic violence” and “crime involving domestic violence” have the meanings given in AS 18.66.990 .

History. (§ 50 ch 64 SLA 1996)

Notes to Decisions

Domestic violence. —

Trial court did not err in finding a water-throwing incident between husband and wife did not constitute an act of domestic violence because the wife admitted that the husband had not inflicted serious bodily injury. Parks v. Parks, 214 P.3d 295 (Alaska 2009).

Superior court’s reluctance to weigh an incident of domestic violence between a father and his girlfriend in its best interests analysis was based on several legal errors because the superior court downplayed the incident due to a lack of evidence that an assault occurred; because both the father and the girlfriend suffered some minor injury during the altercation, the evidence could support a finding that an assault occurred regardless of whether either of them feared injury. Harris v. Governale, 311 P.3d 1052 (Alaska 2013).

Quoted in

Stephanie W. v. Maxwell V., 319 P.3d 219 (Alaska 2014).

Cited in

Stephanie F. v. George C., 270 P.3d 737 (Alaska 2012); Sagers v. Sackinger, 318 P.3d 860 (Alaska 2014); Faye H. v. James B., 348 P.3d 876 (Alaska 2015); Bruce H. v. Jennifer L., 407 P.3d 432 (Alaska 2017); Joy B. v. Everett B., 451 P.3d 365 (Alaska 2019).