Section YAE.08.09 — Custody And Physical Placement Determinations
(a) In determining legal custody and periods of physical placement, the Court shall consider all facts relevant to the best interest of the child. The Court may not prefer one potential custodian over another on the basis of the sex or race of the custodian. The Court may consider tribal custom and tradition as part of the determination of what is in the best interest of a child.
(b) Legal Custody.
(1) It is the rebuttable presumption of the Court that joint legal custody by the parents is in the best interest of the child. However, the Court will only give joint legal custody if it determines doing so is in the child's best interest and the following applies:
(A) Both parties agree to joint legal custody; or
(B) One party requests joint legal custody or both parties request sole legal custody, and the Court determines all of the following:
(i) Both parties are capable of performing parental duties and responsibilities and wish to have an active role in raising the child.
(ii) No conditions exist at the time which would substantially interfere with the exercise of joint legal custody.
(iii) The parties will be able to cooperate in the future decision making required under an award of joint legal custody.
(2) An opposing party may rebut a presumption that joint legal custody is in the best interest of the child with a showing by preponderance of the evidence why the parties will not be able to cooperate in decision making. Evidence of domestic abuse creates a rebuttable presumption that the parties will not be able to cooperate.
(3) The Court shall not give sole legal custody to a party who refuses to cooperate with the other party if that refusal to cooperate is unreasonable.
(c) Physical Placement.
(1) A child is entitled to periods of physical placement with both parents unless the Court determines that physical placement with a party would endanger the child's physical, mental or emotional health.
(2) The Court shall allocate periods of physical placement that allow the child to have regularly occurring, meaningful periods of physical placement with each party and that maximizes the amount of time the child may spend with each party, taking into account geographic separation and accommodations for different households.
(3) The Court will not deny physical placement for failure to meet, or grant periods of physical placement for meeting, any financial obligation to the child.
(d) The Court shall consider the following factors in determining legal custody and periods of physical placement:
(1) The wishes of the parties, including the child's parents, or other family members, as shown through testimony or documents submitted to the Court.
(2) The wishes of the child, which may be communicated by the child or through the child's guardian ad litem or other appropriate professional.
(3) The relationship of the child with his or her parent or parents, siblings, and any other person who may significantly affect the child's best interest.
(4) The child's adjustment to the home, school, religion and community.
(5) Whether the mental or physical health of a party, child, or other person living in a proposed custodial household negatively affects the child's well-being.
(6) The availability of public or private child care services.
(7) The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
(8) Whether there is evidence of domestic abuse.
(9) Whether either party has or had a significant problem with alcohol or drug abuse.
(10) Such other factors as the Court may, in each individual case, determine to be relevant.
(e) If the Court finds that a party has engaged in a pattern or serious incident of domestic abuse, the safety and well-being of the child and the safety of any party who was the victim of the abuse shall be the paramount concerns in determining legal custody and periods of physical placement.
(f) If a party is a member of the National Guard or of a reserve unit of the U.S. armed forces, the Court shall not consider as a factor in determining the legal custody of a child whether he or she has been or may be called to active duty and consequently is, or in the future will be or may be, absent from home.
