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In Alaska, there is a presumption that a husband is the father of a child born during the marriage. However, today numerous couples have children out of wedlock, and children are born to those having extra-marital relationships. This article explores some of the legal issues involving custody of children in such non-traditional families.

The first legal issue involving a child may be paternity. Paternity means fatherhood. If the parents do not agree as to who the father is, the court must make this determination and issue an order establishing paternity. In order to begin this process, a complaint for paternity must be filed. A mother seeking child support from a father can ask the Child Support Enforcement Division to initiate efforts to have the paternity of children born out of wedlock determined by the court. A father seeking to establish paternity may file his own lawsuit asking the court to allow him to prove that he is the father. Normally, a paternity test is ordered if the parents do not agree about who is the father. In Alaska, if a paternity test establishes that there is a 95 percent or higher probability that a man is the father of a child, this creates a presumption that the man is the father of the child that can be overcome only by clear and convincing evidence.

Once paternity has been established, the court or the Child Support Enforcement Division will determine the amount of child support owed under Alaska law.

Additionally, a biological father can ask that the court issue an order for custody and visitation rights so that he can spend time with the child. A father must file a Complaint for Custody, and present proof to the court that the custody and visitation rights he desires are in the best interests of the child. The court will ultimately issue an Order for Custody, making its determination as to that issue.

Years ago, a rule called the "tender years doctrine" stated that young children should remain in the custody of their mothers. Today, this rule is gone. The law states that "neither parent, regardless of the question of a child's legitimacy, is entitled to preference in the awarding of custody. Both parents have equal rights regarding custody, until a court orders otherwise.

During the time that a court considers an award of custody, Alaska law provides that each parent has equal access to their children, to the greatest degree practicable, unless it is shown to be detrimental to a child's welfare. After a judge has considered all of the factors involved in deciding custody, an order can be issued which grants sole legal custody (giving one parent the ability to make decisions regarding the children) or primary physical custody (giving one parent more time with the children) to one parent. Alaska laws provide that parents who are not granted custody have the same access to medical, dental, school and other records of the child as the parent who has custody.

A court may award shared legal custody to both parents if shared custody is determined to be in the best interests of the child. Shared legal custody means that the court can allow for both parents to make important decisions together about the needs of their children.

It may be wise to consult with an attorney who can answer your questions regarding custodial rights and explain the options available to you. Many attorneys will consult with potential clients for a nominal fee to answer your questions and define the services they offer. It is often important to consult with a lawyer at the start of the process in order to make preliminary decisions regarding how to proceed.

The Alaska Bar Association can refer you to an attorney who can answer your legal questions regarding your rights.

Steven Pradell is an Anchorage attorney with a practice emphasizing family law, including custody, divorce, adoption, and child support. © 1997 by Steven Pradell. This article is not intended to provide legal advice and should not be relied on for that purpose.